Porn case film puts juror to sleep; Judge declares a second mistrial

Cincinnati Post ^ | 7.23.03 | Kimball Perry

[mhking]

The video that Hamilton County Sheriff Simon Leis Jr. thought was so disgusting that Shawn Jenkins was arrested for selling it had a different impact on a juror Tuesday -- it put him to sleep.

The sleeping juror and at least two others who averted their eyes when the video was played caused the judge to declare a mistrial today, the second mistrial in this case.

Hamilton County Common Pleas Court Judge Richard Niehaus sent the 12 jurors and one alternate sitting on Jenkins' pandering obscenity case home early Tuesday, then told them today the trial was over.

"Justice is blind to the influence of bias and prejudice but justice cannot be blind to the evidence," Niehaus said today in throwing the case out.

"Justice requires the evidence be reviewed and considered in its entirety. The allegedly obscene tape in this case was basically the entire (prosecution) case. In obscenity trials, it is incumbent upon the jury to consider the tape in its entirety as a matter of law."

Both Jenkins' attorneys and assistant prosecutor Brad Greenberg complained Tuesday after the video -- Maximum Hardcore Extreme, Vol. 7 -- that the male juror was sleeping during its showing while an elderly female often averted her eyes from scenes.

Niehaus intended no pun today when he said, "I couldn't sleep" Tuesday night because he remembered seeing a third juror not watching the video.

The case is now set for a Jan. 12 trial, its third. The first mistrial was declared when prosecutors didn't give Jenkins' attorneys two other tapes bought at Tip Top -- videos a grand jury decided weren't worthy of indictments.

The charge against Jenkins carries a sentence of up to one year in prison.

This trial began Monday with jury selection and opening statements.

On Tuesday, jurors visited Tip Top Magazines, the Corryville shop on Short Vine Street where Hamilton County Sheriff's Sgt. Matthew Guy bought the tape for $15.

The videotape -- which shows the use of a gynecological tool known as a speculum to "stretch orifices to the extreme," Guy testified Tuesday -- was deemed obscene and Jenkins, the store owner, was arrested for pandering obscenity.

After jurors returned from the store Tuesday, Guy testified that the video was one of the worst he'd ever seen.

That testimony was attacked by Lou Sirkin -- Jenkins' lawyer and also the attorney for Hustler Publisher Larry Flynt -- suggesting that Guy didn't know what the average citizen deemed obscene, one of the several tests the law applies in determining obscenity. Then the jury watched the 90-minute video. After it was shown, jurors took a break and Sirkin and Greenberg reported the sleeping juror and another who averted her eyes.

"For a large portion of the video, she did not look happy," Sirkin said of the female juror.

"This video is so disgusting that that is the natural (reaction)," assistant prosecutor Brad Greenberg said.

[mhking]

http://www.cincypost.com/2003/07/23/ohporn072303.html?&

[mhking]

HMB/Bizarre PING....

If you want on or off this list, FReepmail me!

FYI: This has fast outgrown it's original "charter" and become a home for the truly bizarre. An alternative saying/phrasiology is being sought (and suggestions are very welcome!). Also, like it's "cousin list" the B/C list, it has become a high-volume list.

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I'm leaning toward "Just damn," on the suggestion of quite a few folks. I won't make a decision until Sunday. (And thanks to all of you for sending your suggestions!)

[dpa5923]

The videotape -- which shows the use of a gynecological tool known as a speculum to "stretch orifices to the extreme," Guy testified Tuesday -- was deemed obscene

OMG, that is just plain sick.

[jwalsh07]

Ah, what the hell, it's only taxpayer money. There's plenty more where this came from.

Why didn't the stupid judge just admonish the sleeper, replace the shy jurist with the alternate and replay the stupid garbage?

[AntiGuv]

That's what I wondered..

[LeftyStomper]

Richard Gere and gerbils?

[.cnI redruM]

amatuers!

[SouthernFreebird]

....suggesting that Guy didn't know what the average citizen deemed obscene,

Well this average citizen doesn't need to watch that film to know it is obscene... not to mention very painful. What the h*ll is wrong with people.

[ChemistCat]

I don't think I could serve on such a jury at all. If they made me put something like that in my head, it seems to me that they'd better have some way of getting it back out so I could go back to normal, or they'd have done some permanent damage to me. Gak. I think making someone innocent watch something like that against their will is horrible. I wonder if the people on the Westerfield jury had to watch the child-rape-and-torture videos Westerfield had on his computer? :shudder:

[Treebeard]

So, one could say "Porn Trial Ends in Hung Jury"?

[SouthernFreebird]

For real, I don't think I'd ever go back for a pap smear after seeing that film! I'd be scarred for life.

[SouthernFreebird]

So, one could say "Porn Trial Ends in Hung Jury"?

Now thats stretching it a bit donch think....ewwwww

[SouthernFreebird]

That should be doncha think....... we need an edit button!

[rockfish59]

Must've been some Fugly 'actresses!'

[Mason]

Kimball Perry is a great reporter. His stuff is consistently worth reading, even the routine ones that don't involve spatulas. Or sputum or whatever that thing is called . . . just keep it away from me.

[wafflehouse]

hey, would you add me to the freakshow ping list too?

[Ruth A.]

...at least two others who averted their eyes when the video was played...

That seems to indicate that they considered it porn. I cannot believe that a citizen doing his or her duty can be expected to watch filth in the name of justice. The judge is missing the whole point.

[Houmatt]

Well, I have to say I have no idea why there have been two mistrials so far. Maybe the third time will be the charm. But there is more to this story (more specifically, the film) than what has been revealed.

For one thing, the title is in error. It is actually called, Max Hardcore Extreme, Vol. 7. It is a 1999 film directed by and starring a man using the obvious stage name of Max Hardcore. What has been mentioned as to what the film contains I am sure is accurate, as I know for a fact this is the modus operandi of Hardcore.

Doing some research, I found out just exactly why the Hamilton County Sheriff would find it obscene, and it goes beyond what has been described here.

I think people should know exactly what is in there so they can become more informed and have a better understanding of what is at stake. But for obvious reasons, those who wish to know will have to Freepmail me.

Either way, it goes without saying a conviction is in order.

[bourbon]

The law of obscenity is basically a dead-letter at this point in time in US history. I think there were less than 20 obscenity prosecutions brought in the whole country last year. The "community standards" test from Miller v. California, which is the essential point of reference in obscenity trials, has proven to be completely unworkable in most courtrooms across the country.

In fact, there is an opinion from the 2nd Cir. which states that "community standards" basically has no meaning any more, at least for a 'cosmopolitan, let-it-all-hang-out' place like NYC. That's a sad commentary on current American culture, but as a legal matter it's probably dead-on accurate.