Federal obscenity case, filed 5 years ago, has stalled

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In August 2003, the U.S. attorney's office in Pittsburgh made national headlines by filing obscenity charges against a California company that makes graphic pornography.

At the time, many saw the case against Extreme Associates as a prelude of things to come under then-Attorney General John Ashcroft.

But in the five years since, the case has languished. There had been no entries in the case docket since Aug. 17, 2007, until a reporter called the judge's chambers last week to inquire about the case. Early yesterday morning, the docket was updated to show that a telephone status conference will be held Sept. 17.

In a district where the median time from the filing of a criminal charge to its disposition is 10.3 months, having a case outstanding for five years -- even a case that's been appealed -- is unusual.

Some experts now say that's indicative of obscenity prosecutions as a whole across the country.

"For all the sound and fury, what we saw was a handful of prosecutions," said Reed Lee, an attorney who specializes in the First Amendment. "There never was a grand onslaught people may have envisioned."

The number of obscenity cases filed during the first term of the Bush administration did double over the last Clinton term, but that still meant there were just 125 filings from 2002 to 2006.

The difference, said Todd Lochner, a political science professor at Lewis & Clark College in Oregon, were the motivations for filing the cases.

Under the Clinton administration, obscenity charges often were piled onto other counts, like child pornography, to enhance a prison sentence or encourage plea bargains, he said.

But in the Bush administration, they stand as more of a moral barometer, he said.

"It's not so much the number of obscenity cases they bring, but the qualitative nature of what they're trying to do by bringing them," Mr. Lochner said. "The prosecution is trying to set boundaries as to the acceptable realm of adult material."

That is exactly the case with Extreme Associates, where the videos show women being tortured, raped, defecated on and murdered.

During the five years since it's been filed, the case against Extreme's owners, Rob Zicari and his wife, Janet Romano, has seen innumerable delays, first in appeals and now in the pretrial motion phase.

But the Extreme Associates case is itself unique, since it was on hold for 16 months pending appeals after the local judge threw it out.

U.S. Attorney Mary Beth Buchanan filed 10 counts, including conspiracy, mailing obscenity and distributing it online.

The charges were filed after undercover postal inspectors in Pittsburgh ordered five videos from the company.

The films were featured in a February 2002 documentary about pornography on PBS' "Frontline." In that special, Mr. Zicari talked about another company that had been raided by the Los Angeles Police Department.

"We've got tons of stuff they technically could arrest us for," he said. "And when [that raid] happened, I put on our Web site -- I made a big speech: 'I welcome the LAPD to come on down.' I said, 'Come and get me,' I said, 'because we won't go down without a fight. We will fight this. Regardless of the cost, we will fight it.'

"I just can't see them coming after us, wasting millions of dollars -- taxpayer money -- to come for a videotape. That's ridiculous."

But that's exactly what the government did, making Extreme Associates an example.

Ms. Buchanan, who declined to comment for this story, said in the past that the prosecution was about "protecting adults, children, morality [and] the order of society."

The defense won an early victory when U.S. District Judge Gary L. Lancaster granted a motion to dismiss the case in January 2005, finding that the statutes, which prohibit the distribution of obscenity, violate an individual's constitutional right to possess it.

The government appealed, and a panel of the 3rd U.S. Circuit Court of Appeals reinstated the case in December 2005.

That did not get the case moving, though, because the defense requested a stay while it appealed to the entire 3rd Circuit and tried to get the case before the U.S. Supreme Court.

Finally, in June 2006, the Supreme Court refused to hear the issue, and the case went back to Judge Lancaster.

There was a flurry of activity in the spring of 2007, with both the government and defense filing several pretrial motions.

On Aug. 17, 2007, a note on the docket showed that a status conference was held over the telephone. That conference lasted 13 minutes, and Judge Lancaster said during the call that he would schedule oral arguments on the various outstanding motions.

The arguments still have not been scheduled, and it's unclear when that might happen.

For the defendants, they're in no rush to move forward.

"Every day that we're not in trial is another day our client is not convicted," said defense attorney Jennifer Kinsley. "So we're OK with that."

Duke University law professor Lisa Griffin said that criminal cases tend to move more quickly in federal court. But if the defendants are not being held in jail pending trial -- the Extreme Associates owners are not -- there typically is less pressure to move fast.

She was surprised the government hasn't pressed the issue, since, she said, after five years, evidence gets old and witnesses' memories can fade.

There could be a number of reasons for the delay, Ms. Griffin said.

Because Judge Lancaster dismissed the charges originally, he may not think it's a terribly strong case.

Also, she said, it may be that the judge's schedule is packed.

"I think the more likely answer is the sides haven't pushed it forward," she said. But, she continued, "It can't disappear altogether. As long as it's a pending case, it's on someone's radar."

Usually, federal judges do not want to have an exorbitant number of pending cases before them, Ms. Griffin said, because it can damage reputations.

Ms. Kinsley was unsure what's causing the delay.

"I'm sure there are political considerations, but I won't speculate on that," she said.

From the beginning of the case, she told co-counsel, "'Let's make it a goal to outlast the Bush administration,' and here we are. We consider that a victory."

Ms. Griffin said that even if a Democratic administration takes the White House next year, that doesn't mean this -- or any other case -- will disappear.

"It's not the type of case that's sufficiently political to be affected by a change in administration," she said. "And as a practical matter, very few pending prosecutions are."

Instead, a change in parties usually means refocusing priorities for future cases, Ms. Griffin said.

"Pursuing the adult entertainment industry has been a priority of this administration," Ms. Kinsley said. "Whoever the next president is, we would hope he will spend his resources on other important issues."


Paula Reed Ward can be reached at pward@post-gazette.com or 412-263-2620.


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