Politech: Bruce Taylor on dedicated prosecutors and porn convictions [fs]

[Declan McCullagh <declan () well com>]

---

From: "Bruce Taylor" <BruceTaylor () NationalLawCenter org>
To: "BAT at NLC" <BruceTaylor () NationalLawCenter org>
Subject: Cincinnati obscenity conviction- 2 news stories about jury trial 
guilty verdict 1-14-04 in State of Ohio v. Shawn Jenkins (with Bruce Taylor 
comments)
Date: Fri, 16 Jan 2004 18:18:51 -0500


  [ Below are the articles from the Cincinnati Enquirer and Cincinnati 
Post. They are about the re-trial of the obscenity  case  by Assistant 
Prosecuting Attorney Brad Greenberg from last year where a juror fell 
asleep during the showing of the film and defense attorney Louis Sirkin 
obtained a mistrial.   A couple years ago, in Brad's first trial with Lou 
Sirkin, there was a guilty verdict against a wife whose husband made 
hard-core porn pictures of her and others and sold them from the couple's 
Website.  These are good examples of how juries respond to the law and the 
presentations of good, smart, honest, dedicated prosecutors. Bruce]



THE CINCINNATI ENQUIRER

Thursday, January 15, 2004

Adult bookstore owner convicted

By Dan Horn
The Cincinnati Enquirer

Jurors took just 30 minutes Wednesday to convict the 29-year-old owner of 
an adult bookstore in Corryville on charges of pandering obscenity.

It was the third trial for Shawn Jenkins, owner of Tip Top Magazines, after 
the first two ended in mistrials on the same charge.

The obscenity charge stems from the sale of the video Max Hardcore Extreme 
Vol. 7.

Jurors were told before the trial that the content of the video was more 
explicit than most mainstream pornography. After viewing the video, the 
jurors deliberated for just over 30 minutes.

Assistant prosecutor Brad Greenberg told jurors the video violated 
Cincinnati's community standards for obscenity.

But defense attorney H. Louis Sirkin said other graphic videos are 
available in Cincinnati via mail order and other means. It's unfair, he 
said, to punish Jenkins for selling material that could easily be acquired 
elsewhere.

Sirkin said he was disappointed in the verdict and plans to appeal. Jenkins 
trial was his third in two years on the same charge.

The first trial ended in a mistrial after Sirkin complained that 
prosecutors failed to share some information with him. A second mistrial 
was declared in July after a juror fell asleep during the showing of the 
video.

Hamilton County Common Pleas Judge Richard Niehaus will sentence Jenkins on 
Jan. 30. He faces up to a year in prison.



  Second article, from Cincinnati Post, 1-15-04:
  [ In the second article about the Cincinnati conviction below, the judge 
expressed some concerns about a  lower federal court case striking an 
Alabama sex-device law on privacy grounds, but that decision should not 
effect obscenity laws.  The paper said it was a Supreme Court case, but it 
wasn't; the Supreme Court ruled on a sodomy law infringing on bedroom 
privacy rights in the Lawrence v. Texas case, but maybe the judge and/or 
Mr. Sirkin were less than clear about that.   In the Texas sodomy law 
decision, Justice Scalia's dissent did raise a hypothetical concern about 
the effect on obscenity laws, but the Court's precedent is persistent and 
strong in upholding obscenity laws against privacy or "consenting adults" 
arguments.  The Supreme Court in the companion cases to Miller in 1973 
distinguished commercialized obscenity and public distribution of obscenity 
as unprotected by any speech or privacy rights that may apply within the 
home or marital bedroom and upheld application of federal and state 
obscenity statutes, even if transported for private use or possession, see 
Paris Adult Theatre v. Slaton, 413 US at 57-58, 66-67, 69  (no right to 
privacy to obtain or view obscenity in places of public accommodation and 
consenting adults have no right to receive obscenity, even if government 
can't criminalize its possession in one's home, and any right to be left 
alone at home doesn't give customer any right to have someone sell or ship 
it to him or to get it home through the streams of commerce);  and  US v. 
Orito, 413 US at 141-44  (no distinction between public and non-public 
transportation; shipments by facilities of commerce and common carriers are 
unlawful) . Therefore, I respectfully submit, the Alabama and Texas rulings 
are appositive and inapposite and otherwise distinguishable, Bruce]

Obscenity convictions may be on wane, judge suggests

By Kimball Perry
Cincinnati Post staff reporter

Pornographers were dealt a double setback Wednesday, but a judge suggested 
the days when selling adult videos is a crime in Hamilton County may be 
drawing to a close.

First, a Sharonville-based group fighting obscenity released findings from 
its October poll that showed Hamilton Countians want high community 
standards that include the enforcement of obscenity laws.

Hours after those findings were released, a jury found Tip Top Magazines 
store owner Shawn Jenkins guilty of pandering obscenity for selling an 
adult video to an undercover officer in 2001.

Citizens for Community Values commissioned a poll indicating 70 percent of 
513 Hamilton County registered voters questioned consider enforcing 
obscenity laws as important, and 31 percent consider it "the highest 
priority."

"Citizens have such a low regard for these businesses," CCV president Phil 
Burress said, adding that Greater Cincinnati has the fewest stores and 
other outlets that sell adult material in the nation's 38 top major 
metropolitan markets.

One of those outlets is Jenkins' Tip Top Magazines store on Short Vine in 
Corryville.

Jenkins, 30, was arrested in 2001 after selling for $15 an adult video -- 
"Max Hardcore Extreme, Vol. 7" -- to undercover Sheriff's Detective Matthew 
Guy.

Assistant prosecutor Brad Greenberg  asked the jury Wednesday for a 
conviction, saying, "There's nothing tasteful about this (video). It's flat 
out vile."

That is for each individual -- not the government -- to decide, countered 
Jenkins' attorney, Lou Sirkin.

Taking a less-than-veiled shot at Sheriff Simon Leis Jr., the man Sirkin 
battled when he represented Hustler Publisher Larry Flynt in a famous 1977 
obscenity trial in Hamilton County, Sirkin noted the investigation was 
conducted by Leis' detectives even though Tip Top is located in the 
Cincinnati police jurisdiction, and Cincinnati beat cops have walked by the 
shop every day for years without making arrests.

"Nobody even complained," Sirkin said, saying Leis' deputies targeted the 
store after prosecuting the previous owner but failing to shut the store down.

"If you don't want to go in there, it's real simple. Just walk on by and 
don't go in," Sirkin told jurors.

Jurors took just an hour to disagree.

What jurors didn't hear, though, was a meeting between the attorneys and 
Common Pleas Court Judge Richard Niehaus, who was presiding over the case.

After Greenberg rested his case, Sirkin -- outside the presence of the jury 
-- asked the judge to find Jenkins not guilty, saying Greenberg hadn't 
proved his case.

Niehaus refused -- but then suggested this may be one of the last obscenity 
cases of its kind if U.S. Supreme Court rulings are considered.

...

Jenkins will face a maximum sentence of one year in prison when he's 
sentenced later this month, but the charge carries the presumption of 
probation.

Publication Date: 01-15-2004

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