MattBrady
11-04-2002, 02:44 PM
<img src="http://classic.newsarama.com/Other_Publishers/CBLDF_logo.jpg" width="110" height="76" align="right">As the <a href="http://www.cbldf.org" target="_blank"> CBLDF</a> reported in its most recent <a href="http://classic.newsarama.com/cgi-bin/ubb/ultimatebb.cgi?ubb=get_topic&f=1&t=000027" target="_blank"> update</a>, the second appeal for comic retailer Jesus Castillo was refused by the Texas Court of Criminal Appeals. As a result of this action, CBLDF Director, Charles Brownstein confirmed for Newsarama early Monday afternoon that the Fund’s Board of Directors has unanimously decided to appeal the case to the U.S. Supreme Court.
“There’s no other remedy at this point, at the sate levels,” Brownstein told Newsarama. “At this point, if there’s any chance the Supreme Court will hear it, we’re obligated to do so.”
The case dates back to November 1999. According to CBLDF reports:
<blockquote>A retailer in southern Texas contacted the Fund following the publication of a fire and brimstone letter in his town newspaper. Beginning "Be thee not deceived!" the letter attacks the comic shop for the "dynamics of deception" it employs to lure innocent children into the store.
According to the letter's author, Pokemon is the tool by which children are entrapped in a "den of iniquity" where they are exposed to comics with "unwholesome themes and exceptionally sensually alluring covers." After a lengthy tirade, the letter concludes: "Yes, they are comics, not magazines. What young child would pay a lick of attention to a magazine! But put your trash in the form of a comic book and, voila, you've got them!"
The retailer remembers this letter writer's visit to the store quite well, and the comics to which he objected were mainstream superhero titles from DC, Image, and other publishers. In a rage that the owner refused to immediately remove this "filth" from the premises, the customer attempted to convince all of the store's patrons to leave immediately.
The letter appeared in the paper shortly thereafter. Surprisingly, the same letter was reprinted again a few days later. When asked why he had printed such a venomous letter twice over the course of a week, the paper's editor claimed that it was an honest mistake. Then he printed it again.
The letter was later printed in a local PTA newsletter. The article mentioned that the store was "under investigation" by a city council woman in response to citizen complaints. At the time, the owners were unaware of any such investigation. The only complaint they had received in recent memory was from a mother outraged over the store's price for Pokémon cards. "You'll regret this," she had exclaimed, storming out of the store. "I know very important people, all I'd have to do is tell them what you're selling here."
In January, police entered the shop and arrested the 21-year-old store manager for selling a copy of Demon Beast Invasion: The Fallen #2 to an undercover police officer investigating the store. A short time later, he was arrested again for selling a another adult manga comic to a member of the PTA. Needless to say, both the PTA member and the police officer are adults, and the arresting officer even noted that the comics were segregated from the rest of the store in an enclosed "Adults Only" section. Nevertheless, the state contends that these comics are so utterly without merit that they are not even safe for adults to read. The store manager faces two counts of obscenity, which carry a maximum penalty of five years in jail and a $20,000 fine.
Both comics involved are print adaptations of Legend of the Overfiend, a series of Japanese anime films that have sold over 14 million copies worldwide. The series is clearly designed for adults and contains many violent and sexually explicit scenes. Recognized as a classic of its genre, Overfiend embodies many themes prevalent throughout much hentai (i.e. adult) anime and manga. Widely available in America, the Overfiend videos and comics carry the clearly printed advisory warning "Absolutely Not for Children."
The store manager formally applied for CBLDF support, and in February 2000 the Fund's board of directors voted to indemnify him for all legal fees stemming from this case, including his bail.
Since the charge of obscenity must be measured against community standards, the Fund's first order of business was to secure competent local counsel familiar with the community in which the case is to be tried.
CBLDF Legal Counsel Burton Joseph procured the services of one of the best legal teams in Texas, including a trial lawyer who has years of experience as a District Attorney himself. This attorney was also familiar with the presiding judge and the city council woman who appears to have agitated for the investigation of the store.
This is not insignificant in light of the highly charged political situation in Texas, particularly in the city in which the case is to be tried. In the 1980s, the city was the scene of a long, embittered battle between local authorities and the owners of the city's many adult bookstores, video stores, and gentlemen's clubs. It was a war of attrition, in which the authorities finally ceded that the First Amendment guarantees such establishments the right to operate in a law-abiding fashion.
The city council woman involved in our case first made a name for herself with an agenda promising to "clean up" the city and threatening renewed action against purveyors of adult entertainment. Local observers tell us that this same woman stands a good chance of being elected the city's next mayor. The conviction of a comics retailer for selling obscene materials would be a "family values" victory and would doubtless play well on the stump.</blockquote>
The retailer lost the case at the trial level. “We had three experts, who were not disputed, but that did not change the jury coming down with a guilty verdict on the strength of prejudicial testimony on the part of the prosecution,” Brownstein noted. “Castillo was convicted for promoting obscenity by selling an adult manga to an adult in a Dallas comic book store.
According to the Fund, in the original trial, the Prosecution successfully secured Castillo's conviction by introducing prejudicial comments about the store's proximity to an elementary school and exploiting the common misperception of comics as a children's medium. The conviction was arrived at despite unchallenged expert testimony from the Defense and without using the "Miller Test" to determine whether the whole of the work in question was constitutionally obscene.
The “Miller Test” is a three-pronged “test” which asks whether the average person, applying contemporary adult community standards, would find that the work, taken as a whole, appeals to the prurient interest (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion); and whether the average person, applying contemporary adult community standards, would find that the work depicts or describes, in a patently offensive way, sexual conduct (i.e.: ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; lewd exhibition of the genitals; or sado-masochistic sexual abuse); and whether a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (Miller v. California, 4l3 U.S. l5, 24-25 (1973))
More on the case, as reported by the Dallas Observer, can be read <a href="http://www.dallasobserver.com/issues/2001-01-04/news.html" target="_blank"> here</a>.
Castillo was convicted in August of 2000.
The first appeal upheld the conviction in a split 2-1 decision last July, to which the Fund offered a Petition for Discretionary Review, which was denied via a postcard which said only, "On this day, the Appellant's Petition for Discretionary Review has been refused."
“We could have argued at the state level, asking for them to reconsider that decision, but we had nothing to argue, because they gave us nothing to argue – they gave us a one word: refused,” Brownstein said. “At this stage of the game, our next step is to petition with the Supreme Court.
“We’re aware that the chances are slim of the Supreme Court hearing the case, given the current configuration of the Court, but at the same time, it’s our obligation to this community to fight this case as far as we can fight it, and as long as there’s even the slightest chance of legal remedy, especially because we know we’re right, then we have to fight for it. So - that’s why we’re deciding to petition the Supreme Court and we’ll see what happens.”
Brownstein acknowledged that while the final outcome is unknown, the process of appealing a case to the Supreme Court will be two things: long and costly. Filing the case alone will carry a nearly $10,000 tab, and that’s not counting printing costs which can be high, as all documents submitted to the Supreme Court must be offset printed, or attorney fees. From start to finish, Brownstein feels that this segment fo the Castillo case could cost the Fund upwards of $50,000.
Brownstein said he plans for the appeal to be filed with the Supreme Court by the end of the year, and expect to hear something from the Court during the first half of 2003. If the Court decides to hear the case, there’s no set timeframe for when the case would be tried.
“It’s going to be a slow process – the Supreme Court hears a few cases per year,” Brownstein said. “Our attorneys have told us to expect to wait at least three months before we hear an answer one way or the other. If they do decide to hear it, then it probably bodes well for the case, because the Supreme Court is unlikely to hear a case unless it looks to disturb the state-level verdict. That would be good in this case, because it would certainly set a precedent in terms of what is obscene material, and comics being recognized as literary material that appeals to adults. We’ll see if that happens.”
And Brownstein isn’t looking to catch his breath, even if this case does turn out in Castillo’s favor. “I’m worried that this will be just the start of an active period in the courtroom for the Fund,” Brownstein said. “After all, this happened near an election year, most likely for political reasons. This election season was pretty rough, and I’m figuring 2004 will be even uglier.”
“There’s no other remedy at this point, at the sate levels,” Brownstein told Newsarama. “At this point, if there’s any chance the Supreme Court will hear it, we’re obligated to do so.”
The case dates back to November 1999. According to CBLDF reports:
<blockquote>A retailer in southern Texas contacted the Fund following the publication of a fire and brimstone letter in his town newspaper. Beginning "Be thee not deceived!" the letter attacks the comic shop for the "dynamics of deception" it employs to lure innocent children into the store.
According to the letter's author, Pokemon is the tool by which children are entrapped in a "den of iniquity" where they are exposed to comics with "unwholesome themes and exceptionally sensually alluring covers." After a lengthy tirade, the letter concludes: "Yes, they are comics, not magazines. What young child would pay a lick of attention to a magazine! But put your trash in the form of a comic book and, voila, you've got them!"
The retailer remembers this letter writer's visit to the store quite well, and the comics to which he objected were mainstream superhero titles from DC, Image, and other publishers. In a rage that the owner refused to immediately remove this "filth" from the premises, the customer attempted to convince all of the store's patrons to leave immediately.
The letter appeared in the paper shortly thereafter. Surprisingly, the same letter was reprinted again a few days later. When asked why he had printed such a venomous letter twice over the course of a week, the paper's editor claimed that it was an honest mistake. Then he printed it again.
The letter was later printed in a local PTA newsletter. The article mentioned that the store was "under investigation" by a city council woman in response to citizen complaints. At the time, the owners were unaware of any such investigation. The only complaint they had received in recent memory was from a mother outraged over the store's price for Pokémon cards. "You'll regret this," she had exclaimed, storming out of the store. "I know very important people, all I'd have to do is tell them what you're selling here."
In January, police entered the shop and arrested the 21-year-old store manager for selling a copy of Demon Beast Invasion: The Fallen #2 to an undercover police officer investigating the store. A short time later, he was arrested again for selling a another adult manga comic to a member of the PTA. Needless to say, both the PTA member and the police officer are adults, and the arresting officer even noted that the comics were segregated from the rest of the store in an enclosed "Adults Only" section. Nevertheless, the state contends that these comics are so utterly without merit that they are not even safe for adults to read. The store manager faces two counts of obscenity, which carry a maximum penalty of five years in jail and a $20,000 fine.
Both comics involved are print adaptations of Legend of the Overfiend, a series of Japanese anime films that have sold over 14 million copies worldwide. The series is clearly designed for adults and contains many violent and sexually explicit scenes. Recognized as a classic of its genre, Overfiend embodies many themes prevalent throughout much hentai (i.e. adult) anime and manga. Widely available in America, the Overfiend videos and comics carry the clearly printed advisory warning "Absolutely Not for Children."
The store manager formally applied for CBLDF support, and in February 2000 the Fund's board of directors voted to indemnify him for all legal fees stemming from this case, including his bail.
Since the charge of obscenity must be measured against community standards, the Fund's first order of business was to secure competent local counsel familiar with the community in which the case is to be tried.
CBLDF Legal Counsel Burton Joseph procured the services of one of the best legal teams in Texas, including a trial lawyer who has years of experience as a District Attorney himself. This attorney was also familiar with the presiding judge and the city council woman who appears to have agitated for the investigation of the store.
This is not insignificant in light of the highly charged political situation in Texas, particularly in the city in which the case is to be tried. In the 1980s, the city was the scene of a long, embittered battle between local authorities and the owners of the city's many adult bookstores, video stores, and gentlemen's clubs. It was a war of attrition, in which the authorities finally ceded that the First Amendment guarantees such establishments the right to operate in a law-abiding fashion.
The city council woman involved in our case first made a name for herself with an agenda promising to "clean up" the city and threatening renewed action against purveyors of adult entertainment. Local observers tell us that this same woman stands a good chance of being elected the city's next mayor. The conviction of a comics retailer for selling obscene materials would be a "family values" victory and would doubtless play well on the stump.</blockquote>
The retailer lost the case at the trial level. “We had three experts, who were not disputed, but that did not change the jury coming down with a guilty verdict on the strength of prejudicial testimony on the part of the prosecution,” Brownstein noted. “Castillo was convicted for promoting obscenity by selling an adult manga to an adult in a Dallas comic book store.
According to the Fund, in the original trial, the Prosecution successfully secured Castillo's conviction by introducing prejudicial comments about the store's proximity to an elementary school and exploiting the common misperception of comics as a children's medium. The conviction was arrived at despite unchallenged expert testimony from the Defense and without using the "Miller Test" to determine whether the whole of the work in question was constitutionally obscene.
The “Miller Test” is a three-pronged “test” which asks whether the average person, applying contemporary adult community standards, would find that the work, taken as a whole, appeals to the prurient interest (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion); and whether the average person, applying contemporary adult community standards, would find that the work depicts or describes, in a patently offensive way, sexual conduct (i.e.: ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; lewd exhibition of the genitals; or sado-masochistic sexual abuse); and whether a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (Miller v. California, 4l3 U.S. l5, 24-25 (1973))
More on the case, as reported by the Dallas Observer, can be read <a href="http://www.dallasobserver.com/issues/2001-01-04/news.html" target="_blank"> here</a>.
Castillo was convicted in August of 2000.
The first appeal upheld the conviction in a split 2-1 decision last July, to which the Fund offered a Petition for Discretionary Review, which was denied via a postcard which said only, "On this day, the Appellant's Petition for Discretionary Review has been refused."
“We could have argued at the state level, asking for them to reconsider that decision, but we had nothing to argue, because they gave us nothing to argue – they gave us a one word: refused,” Brownstein said. “At this stage of the game, our next step is to petition with the Supreme Court.
“We’re aware that the chances are slim of the Supreme Court hearing the case, given the current configuration of the Court, but at the same time, it’s our obligation to this community to fight this case as far as we can fight it, and as long as there’s even the slightest chance of legal remedy, especially because we know we’re right, then we have to fight for it. So - that’s why we’re deciding to petition the Supreme Court and we’ll see what happens.”
Brownstein acknowledged that while the final outcome is unknown, the process of appealing a case to the Supreme Court will be two things: long and costly. Filing the case alone will carry a nearly $10,000 tab, and that’s not counting printing costs which can be high, as all documents submitted to the Supreme Court must be offset printed, or attorney fees. From start to finish, Brownstein feels that this segment fo the Castillo case could cost the Fund upwards of $50,000.
Brownstein said he plans for the appeal to be filed with the Supreme Court by the end of the year, and expect to hear something from the Court during the first half of 2003. If the Court decides to hear the case, there’s no set timeframe for when the case would be tried.
“It’s going to be a slow process – the Supreme Court hears a few cases per year,” Brownstein said. “Our attorneys have told us to expect to wait at least three months before we hear an answer one way or the other. If they do decide to hear it, then it probably bodes well for the case, because the Supreme Court is unlikely to hear a case unless it looks to disturb the state-level verdict. That would be good in this case, because it would certainly set a precedent in terms of what is obscene material, and comics being recognized as literary material that appeals to adults. We’ll see if that happens.”
And Brownstein isn’t looking to catch his breath, even if this case does turn out in Castillo’s favor. “I’m worried that this will be just the start of an active period in the courtroom for the Fund,” Brownstein said. “After all, this happened near an election year, most likely for political reasons. This election season was pretty rough, and I’m figuring 2004 will be even uglier.”