Richard Abowitz writes on www.reason.com – Judge Leon’s Closed Court

The freedom and opportunity supported by an open government—from lawmakers to the courts—are a large part of what makes citizenship in United States the dream of oppressed people the world over. It is therefore a near perfect irony that opening statements in the John Stagliano obscenity trial will be delayed this morning so that presiding Judge Richard Leon [pictured] can have the honor of overseeing a citizenship ceremony for immigrants who have achieved that dream.

The case against Stagliano concerns the selling of movies performed by consenting adults to entertain adult DVD viewers who have chosen to watch these films. In a free and open society this is exactly the kind of prosecution that should not happen. And this selling out of our national values has not come cheap—the case has already eaten up years of government resources, including everything from Justice Department attorneys down to the $60 or so of taxpayer money used by a special FBI agent to purchase the films from Stagliano’s company.

But other Judge Leon ironies abound. First, he is putting great effort into limiting public access to how justice is being administered in this case, starting with preventing the material under question from being viewed by the public and the press. If this had been a video of a privacy-violating crime such as a rape, an argument might be mounted that keeping the evidence off-limits was necessary to protect the victim.

But since no one is alleging that there are any victims on the DVDs (only professional performers), the strategic placement of monitors outside public sightlines reeks of the abandonment of the presumption of innocence. The implication the jury is almost certain to understand from this approach is that the public can’t see the evidence because it is obscene. Which, of course, is the very question jurors are being asked to decide.

This adds to Judge Leon’s earlier decision to keep secret from the press and the public even the questionnaire used for jury selection. We are reaching the point where these proceedings are only ostensibly open to the public. As Bob Dylan sang, “Makes you feel ashamed to live in a land where justice is a game.”

Judge Leon indicated in court yesterday that his jury instructions will include the Miller test. This was hardly a surprise. The result of a 1973 Supreme Court case, the Miller test famously offers three prongs on which to distinguish obscenity from protected First Amendment expression. In order for a work to be obscene all three Milller requirements must be met. But the judge has been directly preventing Stagliano’s ability to defend himself on two of those prongs.

According to Miller, for a work to be obscene, it must first and foremost violate community standards. But despite adult stores selling hardcore porn of all kinds all over Washington, D.C., there has not been an obscenity prosecution here in more than two decades. Washington is not a community that seems to be at all concerned that adult films are being watched by local adults.

Another way of looking at the community standard is one that Judge Leon has explicitly rejected. For example, a piece of evidence the prosecution apparently wants to share with jurors is a scene from the film Milk Nymphos which shows a milk enema being administered to an actor. Yet jurors will not be allowed to learn that you can find literally hundreds of similar enema scenes for sale at, for example, washingtonadultstore.com.

Another prong of the Miller test is whether “the work, taken as a whole, lacks serious literary, artistic, political or scientific value.” Here, too, the judge has helped the prosecution.

Last week, Judge Leon ruled that jurors could not hear from Stagliano’s two expert witnesses on the films’ merits, on the grounds that they wouldn’t have added much scientific value, and that the underlying material is the best evidence for whether a piece of work is obscene.

One expert, Dr. Lawrence Sank, a respected clinical psychologist from Cognitive Therapy Center of Greater Washington, was expected to testify to the therapeutic and scientific value of the movies. The other denied expert, University of California Santa Barbara Film Studies Professor Constance Penley (see Reason.tv’s interview with Paley here), would have testified to the artistic value of the indicted films.

And then in a shocking development late yesterday afternoon, Judge Leon indicated that he intended to issue a long ruling in support of his decision that the movies not be played in their entirety for the jurors in the courtroom, in apparent contravention of what Miller has traditionally required. The opinion is a strong signal that the judge is hoping to make lasting case law in this trial.

Of course, though all of these decisions hurt Stagliano in the short run, they also offer him strong grounds for appeal, which would move the case closer to the Supreme Court. But to appeal, first there must be a conviction. And that means not only labeling Stagliano a felon for making and distributing movies, but also continuing to force him to pour his money into his legal defense (while wasting taxpayer dollars on the prosecution).