SAN FRANCISCO — The 9th U.S. Circuit Court of Appeals today denied Ira Isaacs' petition to rehear his appeal over criminal obscenity convictions.
The Los Angeles-based fetish filmmaker, convicted two years ago for mail distribution of four scat and bestiality titles, was denied a rehearing by the three-judge panel that recently ruled on his appeal, as well as the 9th Circuit's full panel.
"The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc," according to an order published today by the 9th Circuit's court clerk.
In March, the three-judge panel of the 9th Circuit dashed Isaacs hopes of a reversal over final judgment in his third trial over obscenity charges; two other earlier trials had been declared mistrials
Isaacs, 63, who has spent no time behind bars since the conviction in 2012, faces four years in prison if an appeal is not heard by the U.S. Supreme Court.
Isaacs attorney Roger Jon Diamond told XBIZ that he was disappointed over today's order, but "the fight is not over."
"It is Ira's decision if he wants to pursue this at the U.S. Supreme Court," he said.
Diamond noted that the three judges that heard Isaacs appeal — Judges Ferdinand Fernandez, Susan Graber and Mary Murguia — comprised a "very conservative" panel.
Isaacs' attorney petitioned the 9th Circuit to rehear the case — either the same three-judge panel or en banc (full court) — over arguments that the lower court erred because it excluded Isaacs proposed opinion testimony about "artistic value" and that Diamond's closing argument was substantially impaired by a combination of constant interruptions and objections by the government and by the sitting jusist, U.S. District Judge George King.
Diamond, in his petition, noted in his brief that courts should be more sensitive to criminal procedure in obscenity cases and that the appeals panel treated the Isaacs case "without the special care that the First Amendment requires."
"Not only does this case implicate the First Amendment and free speech, it also involves other constitutional issues including the right of a defendant to testify before a jury, the right to a jury trial, and the right to effective closing argument (effective counsel under the Sixth Amendment)," Diamond wrote in the petition.
Diamond told the panel that it was Isaacs bad fate when his first trial ended up as a mistrial when the Los Angeles Times broke the story about Judge Alex Kozinski’s alleged prior porn website. Kozinski in the first trial concluded that Isaacs could testify as an expert on the artistic issues presented in the case.
With Isaacs being able to testify at the second trial and with his attorney being free to argue to the jury, the jury hung resulting in a second mistrial, Diamond wrote in a motion to rehear the appeal.
"Determined to pursue Mr. Isaacs as though he was an international terrorist, the government took him to trial a third time," Diamond wrote. "Judge King determined that he was not bound by Judge Kozinski’s ruling on the ability of Isaacs to testify as to his opinions.
"Judge King revisited the issue and determined that Isaacs would not be allowed to give his opinion regarding the movies. He would be precluded from testifying either as an expert or even giving his lay opinion."
The Santa Monica attorney also said that the intimidation of Isaacs by the lower court judge extended to his closing argument.
"The record demonstrates that throughout the defense closing argument the government constantly interrupted with objections and derailed the defense’s closing argument," Diamond wrote. "Given the rulings and admonitions by the district court regarding Isaacs’ testimony, all the defense had was closing argument. Yet closing argument, which the Supreme Court has said is essential in criminal cases, was gutted constant interruptions. It did not help the defense to be criticized by the district judge during closing argument because the district court felt the defense attorney was fighting too hard for his client."
Isaacs was convicted on mail distribution charges for sending "Mako’s First Time Scat, " "Hollywood Scat Amateurs #7," "Hollywood Scat Amateurs #10" and "Japanese Doggie 3 Way" — all deemed obscene by a Los Angeles jury.
Isaacs was convicted on one count of engaging in the business of producing and selling obscene matter,18 U.S.C. § 1466(a), one count of transportation of obscene matter for sale or distribution, 18 U.S.C. § 1465, one count of transportation of obscene matter, 18 U.S.C. § 1462(a), and two counts of mailing obscene matter, 18 U.S.C. § 1461.
