Jennifer Dute, charged along with husband Alan with four counts of pandering obscenity, today had her conviction reversed and been granted a new trial by the Ohio First District Court of Appeals.
"We hope to have the hearing resetting a new bond on Monday and getting her out on Monday," advised Dute's attorney, H. Louis Sirkin. "Actually, we had a hearing earlier, but by the time we got through the mechanics with the trial judge, the prosecutor's office refused to come over, so all the judge could do was set it down, and there being no court tomorrow or Sunday, put it on for very early on Monday morning. She [Jennifer] is really excited."
AVN reported on the conviction of Jennifer Dute and the acquittal of her husband Alan of similar charges in the December, 2002 issue, and Dute has been in either the Hamilton County jail or the state women's prison ever since the jury found her guilty on Oct. 22 of last year.
"I suggested to the local media that someone should ask this judge, I wonder how he feels knowing that he has potentially deprived someone of seven months of her life as a result, in a way, of his own errors?" Sirkin told avn.com.
The court of appeals found that judge Patrick Dinkelacker had committed two major errors during the trial: A refusal to admit Gangland 17 , an interracial video that had been found not to be obscene during the Elyse Metcalf trial, as comparable to the tapes at issue here, Jennifer 2, 3, 6 and 7 , which starred the defendant, a Caucasian woman, having sex with various black men, and a failure by the court to allow defense counsel to question jurors as to their awareness of prejudicial local news coverage that occurred during the trial, or in the alternative, to have declared a mistrial based on that publicity.
"The defendant in an obscenity case must be allowed to introduce competent, relevant evidence bearing on the issues to be tried," wrote Judge Doan for the appeals panel. "It is error for a trial court in an obscenity case to deny or unreasonably curtail a defendant's right to introduce into evidence competent and non-repetitive testimony or exhibits that directly relate to or bear upon the absence of any or all of the elements of the Miller obscenity test." [citations omitted]
Though the appeals court found Gangland 17 to be "competent, relevant evidence," it did not find the other two Metcalf tapes – one gay and one transsexual – to be so.
As to the contemporary publicity attendant to the trial, the court stated, "The record reveals that the trial court determined that the 1999 charge [of pandering obscenity against Dute] was inadmissible, apparently finding that evidence of the prior charge was irrelevant and highly prejudicial. On the second day of trial, various local media reported that Dute and her husband had been charged with and/or convicted of pandering obscenity pursuant to the 1999 charges. The media reports were brought to the trial court's attention... The trial court polled the jury to determine whether any of the jurors had seen or heard the news reports. Seven of the twelve jurors indicated that they had seen or heard the media reports."
After asking the jurors en masse whether any of them had been influenced by seeing or reading the reports, the appeals court opinion continued, "At a sidebar conference, Dute's counsel requested that the trial court examine the jurors individually to determine what they had read or heard concerning the case, and whether they could still be fair and impartial. In the alternative, Dute's counsel requested a mistrial. The trial court refused to conduct a voir dire of the jurors and overruled the motion for a mistrial."
That action, the appeals court ruled, was reversible error.
"Where the jury becomes aware of 'highly prejudicial' evidence of the defendant's past criminal behavior through news media coverage, it is per se prejudicial to the defendant," the appeals court quoted.
"The situation that brought about the presumed prejudice dealing with the publicity really came from the prosecutor's office and their dissatisfaction with the trial court's decision to limit their ability to talk about her prior case," Sirkin noted. "They're the ones that spoke outside the courtroom to the media, and technically, you shouldn't talk about the facts of a case while the case is going on for just that reason, so you don't prejudice it, and they conducted this kind of press conference. There was absolutely no excuse for that interview to have occurred during the trial."
Sirkin also noted that it was beyond the sentencing guidelines for Dute to have received a year in jail on the convictions; another indication of possible prejudice on the part of Judge Dinkelacker.
"They [the appeals court] did indicate, relative to the sentencing, the degree of offense that Jennifer was convicted of, there's a presumption of community control, which means probation, as opposed to incarceration in a penal facility," Sirkin explained. "The trial court had said that he felt that her activities showed that she had some involvement with 'organized criminal activity.' The Court of Appeals said, 'Wait a minute; there's absolutely no evidence in the record to support such a finding by the trial court.'"
Two of the three judges on the appeals court panel voted to remand the case for retrial. Perhaps the mind-set of the third, dissenting judge is best evidenced by the concluding paragraph of his dissent:
"The jury in this case was confronted with a very difficult task," wrote Judge Winkler. "The jury was obliged to watch four of Dute's videotapes in their entirety before concluding that the videotapes were obscene. As part of the appeals panel that reviewed this case, I, too, was obliged to watch each of the Dute videotapes. To quote Justice Potter Stewart of the United States Supreme Court, 'I know it when I see it.' The Dute videotapes are clearly obscene – they are garbage. I know it, and the jurors who decided this case knew it."
