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Confirmed User
Join Date: Aug 2003
Location: Austin, TX
Posts: 4,090
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Kinsley also expanded on the issue of the Court's bias against the material, noting that federal statutes require a judge to recuse her/himself "when a judge is personally biased either for or against a party" and "when her impartiality might reasonably be questioned."
"Whereas the statutes generally apply to extrajudicial situations giving rise to bias or a question of impartiality," Kinsley argued, "'when a judge's remarks in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party,' the judge must be recused," she wrote, quoting an Eleventh Circuit case.
"After seeing only portions of the one DVD the Court permitted Mr. Little and Max World to publish in its entirety," Kinsley detailed, "at the conclusion of the May 29, 2008 trial session, the Court confronted defense counsel on the record and inquired why the defense was insisting on having the jury view the material as a whole. When defense counsel expressed that their decision was a matter of trial strategy not within the province of the court or the government to know, the Court further commented that there was nothing it had seen in the small amount of material it had viewed thus far that was of educational, artistic, scientific, literary, or political value. This comment is particularly troubling because it reflects that the Court prejudged the evidence and determined, prior to the government having rested its case in chief, that at least the third prong of the Miller standard for obscenity - that a reasonable person would find that the material taken as a whole lacks serious scientific, artistic, political, or literary value - had been satisfied. Further problematic with the Court's comment is that, at the point it was made, the Court had not seen four of the five charged DVDs in their entirety to determine whether they individually possessed or lacked value. Given that the Court had formed an opinion as to the evidence prior to the conclusion of the trial, in violation of its own instruction to the jury not to do the same, the Court should have granted Defendants' motion for recusal. Its failure to do so mandates judgment of acquittal and/or a new trial."
Finally, Kinsley took the Court to task for failing to make clear from exactly what "community" the "community standards" requirement of the Miller test for obscenity should be taken.
"[T]he prosecution must prove an identifiable community standard exists, what that standard is, and that the charged materials violate it," Kinsley wrote. "And if the trier of facts, based on the evidence, is unable to determine what the community standards are, then the defendant will be entitled to a verdict in his favor... Thus, while the prosecution is not required to introduce expert testimony or other evidence of what the community standards are in order to avoid a judgment of acquittal as a matter of law at the conclusion of its case, the prosecution assumes the risk that, in the absence of such evidence, the trier of facts will be unable to determine what the prevailing community standards are, and will therefore be required to enter judgment for the defendant on this ground alone." [Citations omitted]
During the trial, the jury was unclear as to how to assess the standards of the "community" at whom the charged videos were aimed, as evidenced by a question the jury sent to Judge Bucklew during deliberations. However, even after the judge's further instruction on the subject, it appeared that the jury still did not understand the issue, and that may have affected the trial's outcome.
The prosecution has 30 days to respond to the defense motion, and Judge Bucklew will rule shortly thereafter.
Fight the part 2!
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