The John Stagliano Prosecution and Trial

The John Stagliano Prosecution and Trial

By Attorney J. D. Obenberger

During the Summer of 2011, for adult entertainment lawyers, the hottest ticket in the nation was a spectator bench seat at the John Stagliano obscenity trial in Washington, DC, in the Federal Courthouse at the base of Capitol Hill. At the defense counsel table sat Paul Cambria, Lou Sirkin, Allan Gelbard, and Bob Corn-Revere; on the other side of the aise, two ladies from the DOJ Obscenity Task Force. On trial was John Stagliano, a very bright, highly literate, soft-spoken legend in the adult industry.  With the aim of maybe learning something that I could use somewhere down the road, I went to Washington and watched two days of trial.  Three memorandum opinion orders that emerged from the litigation were significant enough to warrant a spot on my list of important adult expression cases (found on this website).  From my commentary about those important decisions and the recollections of what I witnessed in court emerged the article that follows.

"I trust the government will learn a lesson from its experience in this case," Judge Leon continued, adding later, "Hopefully, the courts and Congress will greater guidance to the judges in whose courtrooms these cases will be tried" since there were "difficult, challenging and novel questions" raised ... and there are constitutional interests at stake here."

        - Reported in

"I hope the government will learn a lesson from its experience," Leon said in a rebuke. He cited a string of "difficult, challenging and novel questions" raised in the case concerning decades-old federal obscenity statutes, the Internet, free speech and criminal defendants' rights. "I hope that [higher] courts and Congress will give greater guidance to judges in whose courtrooms these cases will be tried," he said.

        - Reported in the Washington Post

The Pretrial Motions to Dismiss and to Apply Nationwide Community Standards to the Internet

    Two of the most breathtaking legal developments concerning the law regarding the publication of images depicting sexual expression in 2009 and 2010 were Judge Lancaster's decision in the Extreme Associates case, then pending in the Western District of Pennsylvania, that the obscenity statutes were unconstitutional as a violation of the right to privacy and the Ninth Circuit's determination in the Killbride case that explicit materials charged as obscne must be judged by a nationwide standard. Both decisions suffered. The Third Circuit reversed Judge Lancaster's decision in Extrme Associates and sent the case back to him for trial; but there was no trial; at that point, the defendants took pleas. In the Max Hardocre appeal, the Eleventh Circuit rejected the Killbride formulation as arising from a misreading of fractured opinions, and about the same time,  the second one-two punch to Killbride and Judge Lancaster's Substantive Due Process protection of sexual privacy as articulated in his Order in Extreme Associates, came from District Court judge Richard Leon sitting in the District of Columbia. John Stagliano's trial judge, as he denied the Defense motions to dismiss.

    In Stagliano's case, an order of dismissal, tantamount to an acquittal, was entered in the end, and so there was no opportunity for an appeal of these discouraging determinations. The short trial itself, though, has much to teach. Along with the venue determination in Goldman, it probably explains the demise of Obscenity Task Force of the Justice Department.

The "Work as a Whole" and the Publication of the Charged Works to the Jury

    District Judge Leon also makes a mishmash of Defense arguments concerning the Miller requirement that the obscenity of a work be judged "as a whole". Here, as in Max Hardcore's case and in Extreme Associates, the government indicted trailers and other very short videos, some of them under 30 seconds' running time, excerpted from websites.. Judge Leon's Order refused to require the prosecution to publish the charged videos to the jury. He holds that it is not necessary to view a video from beginning to end in order to judge it as a whole. The conclusion that cannot be escaped from a close reading of all of his rulings in this case is that he is a blazingly brilliant individual who sometimes suffers from a catastrophic failure of common sense; a judge who loses track of the forest because some trees block his view: there is utterly no basis by which any long work can be judged by isolated fragments of it (and particularly not when the selection is made by a party wishing to convey its bias); nor is the ability of an opposing party to add more fragments any substitute for an entire playing of a video work in the manner it which it was intended to be viewed, as a whole. He said, "The juror's task, therefore, is to view the potentially obscene parts of the work in their proper context and, in so doing, to judge whether the work appeals to the prurient interest and whether it lacks serious literary, artistic, political, or scientific value." Nope, not a word of that is true and no cases so hold since Robertson in the Nineteenth Century: the task of jury is not to view parts but to render judgment on a whole, a task impossible without scrutiny of that whole. 

    He goes on, "Thus, it was no surprise that the defendants could not cite a single case from the Supreme Court or from our Circuit that requires the jury to watch every frame of a movie or read every word of a book or view every page or picture in a magazine to satisfy the 'as a whole' element of the Miller test." To the contrary, it appears that Judge Leon may be one of very few judges in U.S. history audacious enough to so mangle the right to a fair trial in an obscenity case as to refuse a defense request that the entire work at the heart of the indictment be presented in open court. That's why the issue has not been adjudicated sufficiently to appear in the case law. In fact, a conviction was reversed in Chicago because a part of the closing credits was unaccountably missing and could not be played to the jury. The only other judge to do what Judge Leon did here, to my knowledge, was the District Judge in the Max Hardcore case. I would commend to their reading the preface of Author Stephen King to the unexpurgated version of The Stand; Judge Leon will there find a simple explanation of storytelling that explains what riches lie in the details of any story. 

    I don't know what Judge Leon expected to be contained in these videos, but he engaged in downright silly behavior concerning the playing of these fragments. I was personally present in the courtroom and watched from the bleachers. Though the screen displaying the video fragments to the jury was visible to the spectators, he made elaborate precautions concerning the audio, which was not played aloud in the courtroom. The principals of the trial and their attorneys had headphones, and one set of headphones was made available to a representative of the press, who was kind enough to pass it around to the dozen-odd reporters covering the trial. The general public was deprived of knowing what was said and what sounds were heard in this purportedly-public trial. And, of course, all of this strange behavior with respect to the isolation of the videos in the context of a public trial would have undoubtedly have suggested things about those videos to the jury in a manner prejudicial to a fair trial; treating the videos as though they were bodily fluids containing pathogenic organisms cannot help but affect a jury's consideration of those videos - in a manner prejudicial to the defense. Excusing children under the age of eighteen from the courtroom would have been enough. When decorum interfaces with the right to a fair and public trial and where those two values stand in dynamic tension, decorum must always yield to fundamental fairness and the public's right to know what manner of justice is administered in its name. 

    The illogic of the Order set out here evidences the bizarre thinking and conduct of a judge who is otherwise quite dazzlingly smart. I don't know what he was afraid of, but he learned at trial, if he did not know before then, that these videos, though explicit, were hardly very extreme. Perhaps he was recoiling from how the court was set up - by the prosecutors - to believe that something truly obscene was involved in this case when, a few days later, he took this matter from the jury and effectively acquitted the defendants. Just maybe, perhaps, this very smart judge was expecting the videos to contain depictions far more grossly offensive than they turned out to present, and perhaps the government, which may have led him to so believe by its purple prose, may have paid a price for that in his dispositions dismissing the whole prosecution case. 

    The Task Force prosecutors may also have paid a price for the suggestion of an improper out-ot-court comment by the judge before trial - from which they backed down when it became an issue, and the inept recording of the online videos of the website, which their FBI Agent witness could not get to play in open court. All of this may have contributed to how Judge Leon decided some difficult issues on the defense motions to dismiss at the conclusion of the Government case, when he really might have gone either way with respect to at least some of the defendants. 

    Little (perhaps nothing) of what mainstream society would judge to be frankly perverted appeared in the selections played in court. The most memorable selection depicted large glass bottles of milk being poured over the frolicking performers.  One other bit of dialog sticks in the mind, and that was the use of the "N-Word" by a busty, blonde female performer, looking at male Black performers with on-camera lust and with laughter in her voice. We will never know whether that line alone determined why the Government chose to bring this case to trial in the District of Columbia (among the hundreds of other venues where it might have been prosecuted) and to play that segment before a nearly-all-Black jury, and we will never know what opinion Judge Leon might have formed about the Task Force's motivation in bringing its case into his DC courtroom; we can only speculate as to what extent his final decision was shaped by a prosecution effort that misfired so badly that it could not get its evidence from the Internet to play in court or establish any connection between John Stagliano and the materials distributed in his name.

Expert Witnesses Excluded 

    Judge Leon also ruled the testimony of the Defendant's two expert witnesses to be inadmissible. The first was a clinical psychologist who, from his clinical practice in Washington, DC, and from discussions with his patients about the consumption of sexually explicit materials, a matter often not discussed in public or among strangers, could testify that he had a knowledge of contemporary community values in respect to explicit videos better than the average juror, and who was ready to testify that the videos in question did not exceed the tolerance/acceptance of the DC community. Judge Leon pointed to the mainly upper middle class economic nature of his patient base and its aggregate level of education and determined that this expert was as likely to mislead the jury as to the true state of affairs concerning community values as to give helpful evidence. He was also offered to testify as to the useful value of these kinds of materials in overcoming pathological over-sensitivity about sex among his patients. Judge Leon found no generally-accepted science behind this proposition and refused to permit him to testify.  The defense also offered Professor Constance Penley, an art professor at UC Santa Barbara, to testify that the charged works possessed artistic value for the purposes of the third fork of Miller. It appears that Judge Leon found her testimony to be evasive and inconsistent and lacking enough of a foundation in some comprehensive view or what art is or is not, that he thought that her testimony would be more confusing than helpful.  

***   ***   ***

    My own thought, coming from statements in the various orders issued by Judge Leon and his statements on the bench, is that, for a long time, he considered this case overlitigated and made overly complex by the defense team. (In doing so, he betrayed a huge underestimation of the real complexity of the issues - and the critical principles of Liberty that they concern.) He displayed an attitude that reflected a belief that the case was cut-and-dried; his various written opinions drip with cynicism and sarcasm aimed at defense counsel, writing footnotes contrasting their actual conduct in regard to evidence with statements they made about that evidence in motions. In denying this motion, he probably thought that he was blowing away a confusing smokescreen that the defense had engineered to camouflage some run of the mill disgusting porn that was obscene as charged. In point of fact, he was denying the defense a fair trial by denying its ability to use the best evidence available to it to refute the charges. 

    Perhaps, at the end, he came to understand that he had badly screwed up his consitutional rulings in the context of a case that did not merit prosecution for obscenity under existing law, and perhaps the two quotations which head this article acknowledge, in words as humble as he was able to muster, that he had erred from the start; passing blame to the courts above him and to the Congress. It would be hard to take his statements any other way. Let the record reflect that he never filed any copy of his articluated reasons for acquitting the defendants - anywhere.

    In any event, after he saw the fragments played by the Government, and endured its technical inability to play other fragments to the jury, and after the prosecutors almost mixed him up in statements made out of court, he got to the point, somehow, where he cured all of his many mistakes and tossed the case out of the courthouse door and kicked it down the courthouse steps. I guess that what's important is that he got it right in the end.

Copyright 2011 J. D. Obenberger. All rights reserved.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is 

J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.