Opening Brief Filed in Ira Isaacs' Federal Appeal

Jun 5, 2013 1:00 PM PST

SAN FRANCISCO — Ira Isaacs' attorney has filed his opening brief in an appeal on obscenity convictions with the 9th U.S. Circuit Court of Appeals.

Isaacs’ attorney, Roger Jon Diamond, presented four questions for the 9th Circuit to decide, including:

  • Did the district court err in ruling that Isaacs could not testify that the movies had serious artistic merit?
  • Did the district court err in restricting Isaacs’ attorney’s closing argument in violation of the Due Process Clause of the Fifth Amendment and the right to effective assistance of counsel under the Sixth Amendment?
  • Did the district court err in changing the definition of “prurience" when it responded to the jury’s question during jury deliberations, notwithstanding that a different instruction on the definition of “prurience” had been given by the same court at the beginning of the trial and at the conclusion of the trial?
  • Did the district court err in allowing the FBI agent to sit at counsel table with the prosecutors and use a computer to obtain additional information about prospective jurors to assist the prosecutors during jury selection? 

Diamond said the issue of testimony from Isaacs as an expert and defendant was unique, but that he’s unaware of any appellate court decision barring the defendant himself from providing an opinion as to the subject matter of the case.

Diamond noted that Isaacs clearly is qualified under federal court rules to provide his opinion.

“His opinion regarding the artistic value of the movies was based on Isaacs' perception,” Diamond said in the appeal. “It would have been helpful to the jury to have Isaacs’ explanation for the movies to determine ‘a fact in issue,’ namely whether the movies had serious artistic value.”

After repeated warnings and admonishments by the court, Diamond said Isaacs finally took the stand in his own defense, but he was not allowed to give his opinion regarding the artistic value of the movies he was convicted on. 

“Since Isaacs was totally hamstrung by the court there was no ability during closing argument to rely upon Isaacs’ testimony to support the argument that the movies had serious artistic value,” Diamond said.

“The restrictions on Isaacs testimony violated his due process right to present a defense. The district court erred with respect to Isaacs testimony.

“It is unconscionable to consider that in a case involving the First Amendment and artistic value that the producer of the art work in question cannot provide his own opinion as to the artistic value of the movies.”

As for the quesion on the word “prurience,” Diamond said that the trial court changed a jury definition after his closing argument.

The trial judge, U.S. District Judge George King, told jurors that “an appeal to prurient interest is an appeal to a morbid, degrading and unhealthy interest in sex as distinguished from a mere candid interest in sex.” The statement conflicted with Diamond’s definition.

“In short, the district court undermined the effect of closing argument by the defense by changing the definition of ‘prurience’ after the defense argued,” Diamond said. “It allowed the jury to question the integrity and credibility of the defense attorney because he told the jury something else during closing argument. Changing the definition undermined the defense credibility.”

Diamond said that he specifically objected to the court telling the jury that morbid means “a shameful or unwholesome interest in nudity, sex or excretion.”

“The court was of the view that that was the definition of morbid,” Diamond said. “The defense mad e it clear it was not agreeable.”

Diamond at trial said that “‘morbid’ is something relating to sort of ghoulish, sort of dead body type, disease-type thing; where ‘shameful’ is more of a psychological condition of a person who is ashamed may be for what they did or they’re ashamed for having told a lie. So they’re more like an embarrassment. The word ‘shameful’ I think has more to do with the psychological condition of the person experiencing the emotion.”

The court, however, stated that the “words ‘morbid,’ ‘degrading’ and ‘unhealthy’ ... are not separate criteria; they are descriptive terms that describe what is a prurient interest. Thus you need not find that the materials satisfies all of these descriptive terms.”

Diamond also said that the government had a tremendous advantage over the defense because it utilized the computer to gain information regarding prospective jurors.

“This honorable 9th U.S. Circuit Court of Appeals should develop a rule of law that absolutely bars the use of computers for gaining access to jury information that is not brought in the courtroom for all to consider,” Diamond said. “It affects the ability of one side to participate in voir dire. It makes peremptory challenges by one side of jurors more difficult to question.

“For all we know, the FBI operating the computer at counsel table could find out magazine subscriptions, voter registration information, divorce records, and other matters,” he said. “Virtually anything is in the public domain but it depends on a proficient computer operator with access to a broad database.

“It is also extremely intimidating to prospective jurors to know that the federal government is snooping around using computers to track down prospective jurors and to gain information about them. If computers are to be used the information must be made public immediately. Otherwise the prosecution is relying upon inside information to pick the jury.

“Both sides should be on an equal footing,” he said.

Isaacs, who was sentenced in January to four years in federal prison, so far has dodged incarceration after receiving an emergency stay from the 9th Circuit.

Isaacs was found guilty in a third trial in April 2012 on five counts of violating federal obscenity laws over the mail distribution of "Mako’s First Time Scat, " "Hollywood Scat Amateurs #7," "Hollywood Scat Amateurs #10" and "Japanese Doggie 3 Way." Two earlier trials were declared mistrials.

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