Obscenity charges will hold

By Cleve Wiese

Published: May 28, 2008

A judge Wednesday struck down a motion to dismiss as unconstitutional obscenity charges against a Staunton adult video store owner and one of his employees.
Rick Krial, owner of After Hours Video, and Tinsley W. Mabry, a clerk in the store, face misdemeanor and felony indictments over 12 DVDs sold in October to undercover police officers. A trial on misdemeanor charges stemming from the sale of two of those DVDs is scheduled for Aug. 13. If the trial results in a conviction, enhanced penalty laws in Virginia mean the other indictments would be prosecuted as felonies.
After a March 6 hearing, defense attorneys filed a motion to dismiss the case on the grounds that Virginia obscenity laws violate privacy rights protected by the 14th Amendment.
“Liberty now gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex,” the motion stated. “This protection is broad enough to encompass a right to buy and sell obscene material.”
Staunton Circuit Court Judge Thomas H. Wood rejected that argument.
Wood also denied a defense motion to investigate for irregularities the grand jury that originally handed down the indictments. The motion questioned whether the grand jury was given sufficient instructions regarding the legal definition of obscenity and whether grand jurors had considered each of the 12 videos in their “totality.”
Commonwealth’s Attorney Ray Robertson said in court that members of the grand jury did not need to watch the videos in their entirety to establish probable cause. In an attempt to prove material had not been presented out of context, Robertson offered to play the excerpts viewed by jurors.
Regardless, inquiries into grand juries are impractical because their proceedings are not recorded, Wood said.
“We’re aren’t going to get them back in here ...” Wood said. “There isn’t any remedy for this ... This isn’t a review of the grand jury’s procedure, this is a trial on the indictments.”
Defense attorneys had hoped Wood would approve a pre-trial questionnaire for potential jurors, but he denied that motion as well, stating such a move would exceed his authority. Wood said attorneys on both sides likely will be allowed to ask potential jurors pre-approved questions about their backgrounds.
Defense attorney Paul Cambria Jr. said the singular nature of obscenity trials necessitates such extra measures.
“This is the only kind of case where we know who did it, but we don’t know if it’s a crime,” Cambria said.
Wood agreed to a defense motion barring prosecutors from identifying in court an attorney serving as co-counsel in the case as a U.S. Department of Justice lawyer, or from noting that two of the defense attorneys – Cambria, of Buffalo, NY, and Louis Sirkin, of Cincinnati, Ohio, both renowned First Amendment lawyers – are from other states.