--- From: "Bruce Taylor" <BruceTaylor@private> To: "BAT at NLC" <BruceTaylor@private> 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 ----- End forwarded message ----- _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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