Aug 09, 2010 More from the Stagliano Obscenity prosecution
Last month, I thought that the obscenity prosecution against Evil Angel and John Stagliano had been put to final rest after U.S. District Court (D.D.C.) Judge Richard Leon granted the defendants’ Rule 29 motion for judgment of acquittal after the prosecution rested.
However — and thanks to a listserv member for bringing this to my attention, on August 4, 2010, Judge Leon issued two memorandum opinions to explain why he had denied the defendants’ motion to have an in-courtroom playing of all the allegedly obscene movies, rather than just to send the films to the jury room, and to present expert witnesses on artistic merit and on the community standard as to prurient interest.
Having dismissed the prosecution, it is not clear why the judge would have issued these opinions in the first place, unless he wishes to provide food for thought for prosecutors, defense attorneys and judges for future obscenity prosecutions. However, now that Judge Leon has issued the opinions, I sharply disagree with his view in his first memorandum opinion that the allegedly obscene films should not be played in the courtroom in their entirety when so requested by the defense. The definition of obscenity includes whether the allegedly obscene material, taken as a whole, appeals to the prurient interest. That requires the jury to take the material as a whole, rather than leaving the jury to fast forward through the video in the jury room to skip scenes that might upset some jurors (and thus missing any dialogue in the process, as well).
I also sharply disagree with Judge Leon’s views in his second memorandum opinion that I believe mis-applies the governing federal expert witness law, in his refusal to permit the testimony of the defendants’ two proffered expert witnesses, one about serious artistic value (which is part of the Miller obscenity test) and the other expert concerning the community standard, which also is part of the Miller obscenity test.
I wish Judge Leon would have written no opinions in this case after having dismissed the prosecution.