L.A.-based Federal Obscenity Trial Postponed Until April 22

Tom Hymes
LOS ANGELES — The trial of a Los Angeles man charged in July of last year with multiple obscenity-related counts and two counts of failing to properly label sexually explicit material has been postponed. It was set to begin yesterday, but has been rescheduled for April 22, in part because of problems assembling a jury that meets requirements for an obscenity trial in federal court.

Ira Isaacs, who did business as Stolen Car Films and L.A. Media and is currently free on $10,000 bond, pled not guilty to six original counts that have since been reduced to four. The trial judge in the case, which is being held in federal court in downtown Los Angeles, is U.S. District Judge George King.

According to Isaacs’ attorney, Roger Diamond, the original trial date was postponed for a couple reasons.

“It could not go forward because, according to the judge, the Jury Commissioner was not able to get jurors into the court from all of the counties that they have to be drawn from, so the trial did not begin,” Diamond told XBIZ, adding that the judge said it may take five or six weeks before the Jury Commissioner can gather prospective jurors.

“In addition, I’m starting a murder trial March 12 that will take about a month and a half to finish,” Diamond said, “but it’s mainly the Jury Commissioner not getting the jurors. I've never had this problem before.”

The juror situation involves two of the three prongs of the Miller Test, which is the Supreme Court’s test for determining whether speech can be found legally obscene, and thus not protected by the First Amendment. The first of the prongs is most direct in its mention of local standards, requiring a determination “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.” (Italics added)

In order for a jury to make that determination, however, the court first must ensure that the jury hearing the case is in fact comprised of people from the appropriate community.

In Hamling v. U.S. (1974), the U.S. Supreme Court clarified that with respect to federal obscenity cases the “community” is not the entire country or the entire state, but the entire district in which the federal court sits.

In the Isaacs case, Diamond said that because of the burden and expense involved he had asked the court to stipulate that jurors would only have to come from Los Angeles County, but the judge did not agree.

“The judge is of the belief that it is important to have jurors from throughout the district,” Diamond said, “with the possible exception of the eastern division [of the district], which comprises the counties of Orange, San Bernardino and Riverside. I think the judge realized that those three counties don’t have to generate jurors, but the other parts of the district, including San Luis Obispo, San Barbara, Ventura and L.A Counties, would.”

Regarding the two charges that were dropped by the government, Diamond said they were 2257-related.

“I filed a motion to have the 2257 charges dropped, primarily on the basis of a recent decision by the US Court of Appeals for the Sixth Circuit,” he added. “I believe the judge was about to rule in my favor, because he kind of nudged the government, saying, ‘Why do you need those charges anyway? If you convict on obscenity, that’s really what you want. If you get an acquittal on obscenity but convict on a technical violation...’ and then he hinted but did not specifically say that there would not be much punishment, since the violations of the labeling counts were really Mickey Mouse technical violations anyway.”

Diamond also said that he has expert witnesses ready to testify in the case, but that there will have to be a Daubert Hearing before they will be allowed to testify before the jury.

Daubert v. Merrell Dow Pharmaceuticals, Inc. is a case in which the Supreme Court held that federal judges have the authority to act as gatekeepers in ascertaining the qualifications of expert witnesses.

“It’s a screening device,” Diamond said. “We have to submit our experts to a Daubert Hearing April 9. But it’s more complicated in this case because it's not like we're having a handwriting expert testify. Our expert is a psychiatrist who will testify as to the serious scientific value of the movies, and the government is going to say that he is not qualified to give such an opinion and should not be allow to testify in front of the jury.”

Another wrinkle is the fact that the defendant himself wants to testify as an art expert.

“It is highly unusual for the defendant to be the expert,” Diamond said. “In fact, I don’t think it’s ever been done, and in general it’s not a good idea, but this case is kind of unusual in that there is no dispute about his involvement. He’s not claiming that he was in Cleveland at the time or that this was a case of mistaken identity. We don’t have a defense that he didn’t do it, so therefore there really is no downside to having him testify and potentially there are some good things that could come of it. It could backfire in front of the jury, but he wants to testify that the material has serious artistic merit, so we’ll have to see.”