(Editor's Note: Richard Abowitz is covering John Stagliano's obscenity trial in Washington, D.C. for Reason. Follow Abowitz on Twitter for breaking news, and keep up to date with Reason's Stagliano coverage at this link.)
This one fact is beyond reasonable doubt: In the John Stagliano obscenity trial yesterday, one (or more) of the following three people did not tell the truth—Judge Richard Leon, prosecutor Pamela Satterfield, or key government witness FBI Special Agent Daniel Bradley. This was only one of many deeply troubling developments in an eventful Thursday of U.S. v. Stagliano et al.
Before getting into details, let me remind people of the correct and ethical course for the prosecution right now: End this case. The prosecutor's sworn duty as an officer of the court is not to convict every defendant, but to place justice above all. This case is falling apart; there is not a single element of the government's evidence that has not been tainted in multiple ways. Here are some of the fundamental problems going forward.
The prosecution can no longer vouch for the integrity of its own star witness. FBI Special Agent Bradley is the only one to testify that he watched the entire content of the films in question and deemed them obscene, so if the prosecution has serious doubts about the honesty and accuracy of his testimony, the government has a responsibility to not present that testimony to the jury. And there are good reasons for doubting Bradley.
In Thursday's proceedings, Bradley claimed that prosecutor Pamela Satterfield told him to review the movies before the trial began at the behest of Judge Richard Leon, so that he could recall better on the witness stand basic elements of the movies, including action and dialogue. If Bradley's statement is true, it would be a shocking breach of ethics by Judge Leon—you can't have impartial arbiters helping the prosecution prepare witnesses.
An angry Judge Leon, after sending the jury out, denied the claim in the strongest possible terms. As did prosecutor Satterfield, who said she had never given such instructions to her witness. But now that Satterfield has impeached the honesty of Agent Bradley's sworn statements in front of the jury, how can she now present this witness—her one star witness—as credible?
Of course, this all could be a case of the agent's mistaken memory. But even that benign explanation causes a serious problem: The alleged conversations about reviewing the movies took place just weeks ago. The agent's key testimony in this trial hinges on his recall of actions he took way back in January 2008.
Agent Bradley's memory has already proven to be shaky at best. Among the events he appeared yesterday to have totally forgotten was his own investigation into the trademark of Stagliano's distribution company Evil Angel. Even after being offered his own notes to jog his memory, Agent Bradley could not recall details of his trademark research. Even worse was his recollection of the contents and dialogue of the films under indictment, despite recently re-viewing them. His memory has proven so poor that he has had to repeatedly have it "refreshed" by reading his own earlier written summaries in order to paraphrase them. Is that memory?
And still we are not done with Agent Bradley's problems. The prosecution's star witness also admitted yesterday that he neglected to include in his summary of the films whole sections of the DVDs, including behind-the-scenes interviews and bloopers.
The Miller test requires that works being judged as obscene be viewed as a whole, in order to assess possible artistic merit. And in fact, the very existence of a bloopers reel offers evidence of artistic intention, in that something went "wrong" in a given scene. If these products have never been considered in their entirety by either Special Agent Bradley or the prosecution, how can the government in good faith stand before the jury and claim to know the films are obscene by the standards of the Miller test? It would appear they can't.
It has become increasingly obvious that prosecutor Satterfield has been a model of neither competence nor integrity in this trial. Among her actions so far was an attempt to slide a piece of advertising from a DVD box into evidence that she had not previously disclosed to the defense. Even worse she appears to have possibly not told the truth to the judge at least once about the defective capture of the Fetish Fanatic 5 trailer that has now been removed from evidence in this trial, invalidating two of the seven counts against Stagliano and part of a third.
As I reported earlier, the government's CD-R capture of Agent Bradley downloading the trailer in a restaurant back in 2008 had glitches and missing sound and finally froze and crashed in front of the jury on Wednesday. After a recess, Satterfield insisted to the judge that the capture was now playing just fine. Yet she seems to have been the only one to observe this allegedly perfect playback. Several attempts to replay the CD-R revealed evidence too corrupted and defective to fix or use, which is why the judge yesterday threw it out. So what exactly did Satterfield mean when she told the court that the CD-R played for her without problems just after the jury left the room?
Another problem with the prosecution is that the obscenity trial is taking place in Washington, D.C., when the DVDs in question had only a tangential connection to the city. See if you can follow the geographic chain of events from yesterday's testimony: Agent Bradley, working in Virginia, ordered his porn from a website in Baltimore, Maryland. Bradley then had the DVDs mailed to a P.O. Box in the District of Columbia, using a money order purchased in Virginia and then mailed by him to Maryland. Bradley further testified that he never went to the mailbox in Washington. He therefore can't know for sure that the DVDs were ever even in the District. Another agent, who has not yet testified, allegedly picked up and delivered a package to Bradley in Virginia. The box seems to have contained the porn Special Agent Bradley ordered. But Bradley never viewed the movies in the District of Columbia. And all that is a sequence rendered by Bradley's already faulty memory.
So an FBI agent ordered some porn in Virginia from Maryland, and then watched it in Virginia. And now there is a trial assessing whether the material violates the community standards of Washington, D.C. It does not make sense.
Putting it all together, the government's case has been revealed as lacking credible evidence on almost every crucial point, with a star witness who has either impeached the credibility of the judge, the prosecutor, or himself.
Yesterday, the defense moved for a mistrial and the judge declined. In retrospect, that was for the best, since the government could have then retried the case. It is time for either the judge or the prosecutors to do the right thing and end this prosecution altogether. A mistrial is no longer a fair outcome for John Stagliano.
What makes our system of justice noble on paper is that the prosecution and judge are officers of the court. They have an extra burden of responsibility to serve justice, and they should have the courage to apply it, however belatedly, in this case. John Stagliano is still sitting in a defendant's chair, racking up expensive legal bills, long after the case against him has almost totally unraveled. In a show trial that never should have been brought in the first place, the government has bungled what flimsy legal rationale it ever had. It is long past time for the United States to pull the plug on this sham and allow Stagliano and his pregnant wife to go home.
Sadly, what is instead likely to happen is that the prosecution will rest its case this morning. Then Stagliano's team will ask that the trial be thrown out, and, if the judge does not agree, mount a defense of their client. If the officers of the court won't stand up for truth, justice, and the American way, then it looks like a pornographer will have to do the job for them.
Richard Abowitz has chronicled the rise and continuing fall of Las Vegas for the Las Vegas Weekly, Vegas Seven, and the Los Angeles Times, most notably at the Movable Buffet blog. He now blogs chiefly at GoldPlatedDoor.com. He will be covering the Stagliano trial for Reason, and can be followed on Twitter at @RichardAbowitz. This column first appeared at Reason.com.
Disclosure: John Stagliano has been a donor to Reason Foundation, the nonprofit that publishes this website.