On Monday, U.S. District Judge George H. King received motions from defense attorney Roger Jon Diamond and the government's legal counsel, Ken Whitted, who serves on the Justice Department's Obscenity Prosecution Task Force.
Diamond told XBIZ that he moved for King to dismiss the case because going forward with the trial again would put his client, Isaacs, on trial for the same charges twice. The case's previous judge, Alex Kozinski, recused himself because of a Los Angeles Times story that revealed he ran a sex-themed website. In doing so, Kozinski called for a mistrial – which Diamond opposed.
"We didn't ask for a mistrial," he said. "We objected to it. We wanted to finish that trial."
A jury in that trial had already been chosen, sworn in and had heard and seen ample evidence. Diamond argued in his motion that another trial would call into play the Fifth Amendment's prohibition against "double jeopardy."
King gave himself a brief recess on Monday to consider the motion, and he originally said he would return in a matter of minutes to deliver his decision. Moments later, he returned and told the court he would need more time to consider the motion. He has yet to hand down a decision.
Diamond said that King has the prerogative to take as much time as he wants to hand down a decision, though Diamond did say it was unusual for him to tell the court he would be back with a quick decision and then take as much time as he has.
"It sounded like he knew what he was going to do," Diamond said.
Although nothing new has happened as of yet, Diamond noted that regardless of the judge's decision, both sides could immediately appeal the decision before the case goes to trial because of the double jeopardy claim involved.
"If the judge rules against us, we wouldn't have to go through the whole trial and then file an appeal based on double jeopardy," Diamond said. "We could file right away."
As for why the judge is taking so long, Diamond could only offer speculation. He suggested that King might be working on a longer, written ruling, or that he might just have other tasks on his calendar.
"What I don't think is that he's been sitting in his chambers this entire time, cogitating over the matter," Diamond joked.