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This isn't Max's first time facing an obscenity trial, and assuming it goes all the way to the jury, it's certainly not a given that he will be convicted.
An anecdote related to me a couple years back by one of Max's attorneys demonstrates the point:
When reviewing the videos that the jury would be forced to watch at trial, one of Max's attorneys noted that during a particularly graphic "gape" shot, a fly landed, circumscribed the performer's expanded anus and then flew away.
Dismayed by what he saw, the attorney called Max and yelled something to the effect of "Have you ever heard of the term 'editor' before? Can you imagine what the jury's reaction to that fly is going to be?"
When the day came for that scene to be shown to the jury, the lawyer braced himself when the 'fly scene' was approaching. When it happened, much to his (pleasant) surprise, a single male juror began repeatedly slapping his hand on his thigh and laughing very hard.
"There's the one I need," the lawyer thought to himself. "That's our guy."
In the end, Max was not convicted, and the lawyer in question began to think of the fly as the best exhibit in the case.... so you just never know.
It only takes one person to derail the prosecution, while the prosecution needs all 12 to be in agreement. When the crime in question is something that is only a crime if the jury says it is, getting that unanimity is much harder than in a case where the sole question is "did the defendant do it?"
In obscenity cases, in effect, there is no "it" unless and until the jury says there is.
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Q. Boyer
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