SUPREME COURT REFUSES TO HEAR CASTILLO CASE

[MattBrady]

Bringing a case to a frustrating conclusion, the Comic Book Legal Defense Fund has confirmed for Newsarama that the Supreme Court will not hear Texas comic book retailer Jesus Castillo’s case, allowing an ominous precedent for the industry to stand.

As regular Newsarama readers recall, Castillo was charged with two counts of obscenity for selling adult comic books to adults in 2000. The Fund had been aiding Castillo’s defense since his local trial, providing expert witnesses, and initially persuading the local court to try the two obscenity counts separately.

In an argument that sets the common view of comics back a good thirty years, the Texas state prosecutor secured a guilty verdict with a closing argument in which she said, “I don’t care what type of evidence or what type of testimony is out there, use your rationality, use your common sense. Comic books, traditionally what we think of, are for kids. This is in a store directly across from an elementary school and it is put in a medium, in a forum, to directly appeal to kids. That is why we are here, ladies and gentlemen. … We’re here to get this off the shelf.”

The State won, and as a result, Castillo was sentenced to 180 days in jail, a year probation, and a $4,000 fine. Again – in the eyes of Texas, selling a comic book created for adults, from the adult section of the shop, to an adult was deemed a crime because, in the prosecutor’s eyes, all comics are for kids.

Following their win, Texas dropped the second obscenity count. The Fund, meanwhile, prepared its appeal on Castillo’s behalf, only to have the State Appeals Court deliver a 2-1 split decision in favor of the conviction. Writing in his dissent, Justice Tom James, stated that he would have reversed the conviction on the ground that the State did not provide sufficient evidence that Castillo had knowledge of the content and character of the offending comic book. It was on the basis of James’ dissent that the Fund filed a Petition for Discretionary Review to the Texas Court of Criminal Appeals (on the grounds that a judge stated that he felt a lower court’s decision could have been wrong), which was ultimately denied. Appealing to the U.S. Supreme Court was the last chance for a reversal of Castillo’s conviction, and the striking down of a dangerous precedent for comics shop owners across the country.

”Fundamentally, this is a very, very disappointing decision,” CBLDF Executive Directo Charles Brownstein told Newsarama. “We were hoping that the Supreme Court would recognize the Constitutional implications of this case, and decide to hear it. Obviously, we knew it was a long shot – the Supreme Court hears, at best 2-5% of the cases that come before them. So, we knew walking in, that this was going to be unlikely, but we also knew we owe it to this community, not to mention that we owe it to Jesus to keep fighting as far as we could. What has occurred here is that a very bad precedent has been allowed to stand – a man can be convicted of obscenity charges without the work in question being proved Constitutionally obscene. This is a precedent that may come back and haunt us again, in Texas, or in other places. This is exactly what we kept fighting to avoid.”

Brownstein also noted the outrightbreaking of the court’s guidelines by the prosecution with, he feels, aided in the State’s initial win. “This was a verdict that was reached on prejudicial testimony,” Brownstein said. “The attorneys were instructed not to enter into consideration the proximity of the comics store to a school, and the prosecutor deliberately snuck that into her closing arguments, and it stayed on the record, thus bringing out the jury’s prejudices. It boggles the mind that the State did not bring any evidence as to the obscenity of the comic in question. They simply said, ‘Comics are for kids, don’t let our kids see this filth,’ and won over a jury.

“So, what this decision has done is mocked our medium, mocked the ability of adults to make intelligent choices for themselves, and mocked out Constitution. So, we’re disappointed. It steels our resolve moving into 2004, and it’s a sign, to us anyway, of the very troubled times that we are living in.”

CBLDF Chief Legal Counsel Burton Joseph said: “One thing is clear, with every defeat of the First Amendment, the censors gain courage to pursue their unconstitutional ends. The Castillo case is among the most appalling cases of injustice ever to come to the attention of CBLDF. Conservative communities are quick to condemn comic book artists and publishers without an understanding that they enjoy the full panoply of First Amendment rights.”

What should chill every comic shop owner to the core about the Supreme Court’s refusal to hear the case is that now, everyone can follow Texas’ lead. With the precedent set, as is always the case, all a prosecutor in a different state need do is point to the law of Texas, and the judicial rigors the decision against Castillo withheld, implying fitness in the judicial system. That is, it’s been tested, and has come away the victor – it’s a solid precedent.

Although, as Brownstein said, the CBLDF will be there the next time a local prosecutor realizes a “save the children” campaign will guarantee them votes in the coming election. “We now have our template for how to and how not to fight another case like this,” Brownstein said. “It didn’t work largely because of an unwise jury decision in Texas. The second charge was dropped though, after this case was decided, and speculation at the time was that we wouldn’t have lost the second time, because the State was not as prepared as we were, as they could offer no evidence that the comic in question was Constitutionally obscene. So, it was a bit of a fluke on the jury’s part that they believed the prosecutor over our experts, and came up with a hastily decided verdict.

“But I don’t think that means the way we handled the case was wrong. It was a split decision on appeal. We had 2 to 1. The two that voted to uphold the verdict found that there was not legal error made in the original jury verdict. That’s a lot different than saying it was a bad decision. The one who voted to overturn the decision said that there wasn’t adequate evidence that Jesus knew the content and character of the work. What that suggests to our attorney was that our case was strongly made, but it was the whim of the jury. So I think that if there is a next time, we will be able to go in and make a very strong defense. Of course as the Fund grows older, our allies grow stronger and more numerous. So I’m confident that with the continued support of the community, we will be able to wage a fist rate defense on the local court level.”

And yes, it did cost the Fund a lot of money for what could be seen, in the end, as a futile endeavor. After all, the Fund lost at every turn, right? That’s not quite the correct way to look at it, Brownstein says.

”The way the law works is that although you fight he right battles, it doesn’t mean that you’re going to win them – but it doesn’t mean that you stop fighting either. Even though this one didn’t work out as satisfactorily as we had wished, the Fund is still going to be there, the Fund is still going to be fighting. The fact that the Fund was there got the second charge against Jesus knocked out before it went to trial, and it got his sentence knocked down to a much better place than it could have been. And of course, it was the community’s support that paid for this case, and not the owner of the store Jesus worked at, and not Jesus – which is what we’re here for.

“All told, the Fund was able to minimize the degree of human loss in this case, which is part of our mission, but again, we’re here to fight bad precedents and bad laws as well. Unfortunately, this is one that we’re going to keep with us, and we’re going to have to fight it the next time it rears its ugly head.”

For an interview with Castillo from December, along with a background on the case, click here.

[BuckySinister]

Jesus Christ, but this kind of blind censorship pisses me off. Just when you think that Teenagers From Mars overstates its case, something like this pops up. Grr.

[BillReed]

Dammit. This is asinine of them. Rhargh...dammit, Texas.

The general public needs to have awareness of comics. 90% of comics are not for kids. They need to realize this.

[Cayman]

What comics were involved?

Cay

[TVerBeek]

There's a reason they call it "the court of last resort". Especially in the last 10-20 years, it's a dangerous place to take an appeal on Bill of Rights questions.

This is something to think about the next time (and any time) you vote for the person who'll hold the office that selects Supreme Court justices, and the Senators who consent to their appointment. I don't know who all the candidates will be, but I know one of them will do nothing at all to put more free-speech supportive judges on the bench.

[Dan Feeser]

Damn!

[csGuy]

I guess there's not much to say besides "not good".

[kevin75]

as a texan, i ask all of you to not judge us by a few morons. this is utter and complete horse$h!#. if he were selling it kids, that is one thing, but to adults?!? next thing you know, someone is gonna get arrested for selling a copy of preacher or the punisher.

[D-ski]

Originally posted by Cayman
What comics were involved?

Cay

Jesus was convicted for selling a copy of "Demon Beast Invasion" # 2.

The second charge of selling a copy of the anime "Legend of the Overfiend" was dropped after the first conviction.

I've not seen an issue of Demon Beast, but I have seen some of the more grisly parts of Overfiend, and those involve aliens with multi-tentacled sex organs destroying cutsie anime girls.

Pretty grim stuff.

A brief rundown of the case from Aug. 2002:

http://icv2.com/articles/home/1718.html

[Brian Denham]

Could a sign posted on the front window of the store saying in legalese that "This store carries items called comic books, graphic novels and, or manga which may or may be offensive to some people. Comics and literature are not exclusively the domain of children. By entering this store you are agreeing that comics are not for children. Material deemed inappropriate for minors will not be sold or displayed to them."

Or something like that...?

[Alex Clarke Kent]

I also think this case is a pile of Bantha Fodder. I can't even see how the DA got this case past a Grand Jury to trial begin with. And the trial jury must have been a bunch of nimrods too.

[Brian Denham]

Oh yeah, by the way, I first saw the videos in question when I was 12 years old. I was walking around a small anime convention in Dallas and some dumbass retailer had them on a tv displayed at his booth. I only watched for a minute and I was so disgusted I had to turn away.

You know when I was 12 the local bookstores used to carry unbagged copies of Porn magazines on the bottom shelf where I could easily access them. All the local kids would go look at these magazines and sometimes the retailers would stare at us until we put them back.

And my High School had a smoking lounge for students. All of this was around Dallas. What the heck has happened in the last 20 years?

People are getting sued over things that was no big deal a generation ago. Very sad.

[Harry Tzvi Keusch]

What comics were involved?

This is totally irrelevant (unless it's just for curiosity's sake, Cay). It makes no difference!! It doesn't matter if it was hard core porn. The point is that since it was in a area restricted and clearly labeled for adults, and the comic was sold to an adult, there should have been no charge. Castillo was convicted because "comics are for kids". This is a sad day for our comunity.

[Gordon Lee]

As a retailer who had the aid of the CBLF back in `91 for very similar charges, and with the hindsight that came from this, I can see where the issues got muddy to the jury. Also, as someone who learned from the experience and got his paralegal degree as an indirect result of the incident in `91, I am better prepared to deal with the BS that can come from this type of a witch hunt.

I have both the CBLDF & the ACLU phone numbers nearby for easy access (if I ever need them).

While I am not privy to the details of the case, I am aware that the local federal judge would strike this down in a heartbeat. He thought it was ridiculus then, and I imagine he still would. The ACLU, due to their financial standing, won't aid you unless you get a guilty conviction and you can give them an adequate argument to aid you where they feel they can win in an appeal depending on various charges.

I was lucky. After all the $$ the DA's office spent to try & convict me, I only ended up with a $300 fine, and a suspended sentence.
Remember, hindsight is 20/20 - and as the CBLDF learn, each case is a stepping stone with possible errors - but they do learn!

Originally, I was told about the chances of getting a Supreme Court appeal and the costs involved. If I really thought we had a chance then, I would have thoroughly agreed to do so. But you're talking 2.5% of cases submitted actually being heard. Last I read somewhere, I want to say the odds are now even less.

Please recall, this was going on when the flag-burning issue was a big news story - the person was trying to get media attention for his case and how he felt his Constitutional Rights where being abused and overlooked.

All of the Larry Flynt cases were also being heard.

My attorney & I had the longest arguments/discussions over doing many of the same things - just to get media attention over my court case.

Now, it's 10+ years later. Would I be outspoken dealing with this today? Yes. I'm sure I can find an American Flag just the right size to use as a blind fold or diaper. Remember: Attention.

Finally, here's something I learned from my paralegal classes. A jury member is NOT randomly picked as you may have heard. If you can find someone who has served on a jury, ask the person if they have served more than once. If they have, ask them if they ever came back with a decision against the DA's office. Most likely, they ALWAYS agreed with the DA, and after the case has been tried, the DA re-submits his/her name back on the jury pool.

This way, the next time a jury needs to be picked, the DA picks names from his "agreed with me" list and everyonce in a great while someone new is added.

But if your decision wasn't the one the DA wanted, you are bumped off of the jury list. Permanently, in most cases.

[Cayman]

Originally posted by Harry Tzvi Keusch
This is totally irrelevant (unless it's just for curiosity's sake, Cay). It makes no difference!! It doesn't matter if it was hard core porn. The point is that since it was in a area restricted and clearly labeled for adults, and the comic was sold to an adult, there should have been no charge. Castillo was convicted because "comics are for kids". This is a sad day for our comunity.

It really was just for curiosity's sake. It wasn't mentioned in the article as far as I could see.

Cay

[punkmonkey]

Boy, this is truly moronic. I don't think the comic in question is really fit for anyone to read, but that is certainly the fellows choice. THe clincher of course is that doggone argument that "comics are for kids"! I think the judge should be forced to sit in at a comic shop during new comics day and count how many "kids" come in to buy comics (not card games, mind you) against the number of adults (at least as far as age is concerned). The comic shop I used to go to in North Carolina had maybe 2 people under age 18 who were on the subscriber list (out of about 200)! This is why comics need better promotion and exposure -- a jury sat there and completely swallowed this argument that comics are just for kids without knowing any better!
Sure, there do need to be more comics produced for kids, but c'mon!

[Skanderbeg]

Ah yes, America, land of the free. Mwahahaha. Yes, now I understand why the Arabs/Muslims hate America, they are envious of your freedom, yeah that's it.

[littlewolvie]

Originally posted by D-ski
I've not seen an issue of Demon Beast, but I have seen some of the more grisly parts of Overfiend, and those involve aliens with multi-tentacled sex organs destroying cutsie anime girls.
Pretty grim stuff.

Demon Beast (Invasion) is of the same kind. More tentacles if you want. Both are based on Japanese anime. Legend of the Overfiend is better known as the first part of Urotsukidoji. I agree it's not something you should give to a 12-year old. But it's not really the end of the world either. Over here you can buy it without any problem. The age limit is not even 18, it's 16. If the retailer sold it to an adult and separated this kind of comics (or rather manga in this case) from his other comics, I really don't see what the big deal was. I have the impression this is a case of people judging something they don't know a thing about. Only in the States, I guess... 'sigh'

[BLACKBRIAR]

Originally posted by littlewolvie
Only in the States, I guess... 'sigh'

Wow, you guys live in a really shitty country.

[Ogami Itto]

Originally posted by BLACKBRIAR
Wow, you guys live in a really shitty country.

Hey, there's plenty of things wrong with this country, but none make it shitty.

I'm from NYC. I am also a former prosecutor (low-level assistant) and I can tell you first-hand, we had too many trivial assaults and drug cases on our hands to deal with cases where some overly-sensitive parent found a cause she thought was important to fight for and the higher ups in the prosecutor's office needed to appeal to the family-values voters.

I am disgusted by the tactics of the prosecutor in this case, and have followed the case from the beginning because of the statements made in the prosecution's closing. Unfortunately, they made an easy tactical decision in order to win. We all know at least 5 people personally who would say that comics are for kids, and that was their trump card, the final blow so to speak. There comes a point when all the expert witnesses in the world are just ignored when what they testify to runs contrary to every belief the juror has on the subject. The prosecution knew all of this, and struck the right chord with these jurors.

We all know that the majority of America still believes that comics are for kids. Don't lie to yourselves and think to the contrary. This is not Japan, where comics are ingrained as a viable form of literature. Instead, we must accept that the majority of this country is ignorant to comics as literature and art, and we must work to change this myth.

Comic-book fan-boys who come out of their parent's basements just for comics are just one of the problems in changing people's perceptions of the medium as being more than just for kids. Fan-boys are seen as young men who have yet to grow up and move on from their childhoods. But what we really need is for these fan-boys to grow up and get jobs and move out, and still buy their comic books. I can tell you that being an established professional makes introducing comics to my young relatives that much easier than if I was a fan-boy living in my parent's basement with no real prospects in life.

That's just one of the things that needs to change in order to get rid of the myth that comics are just for kids. We all need to do our part. Speak intelligently to those who ask you about comics and about why you read them. Try not to get into too many public disagreements about who can kick whose butt in the comics. (that's what Heroclix is for!) And for Pete's sake, read something other than comics, and don't count Harry Potter.

There's more to this, but I have to catch some Z's.

[NotYourAverageX]

Only in the States...more like only in Texas!

[punkmonkey]

Originally posted by Skanderbeg
Ah yes, America, land of the free. Mwahahaha. Yes, now I understand why the Arabs/Muslims hate America, they are envious of your freedom, yeah that's it.

Don't be fooled -- we still have got it way better than they do. There's still plenty to be envious of -- and much abuse of freedom to be sickened by.

[MattBrady]

let's keep the discussion to the topic at hand, rather than an opportunity for everyone to whip it out, throw it on the table, and use this particular decision to measure America as a whole against any other given country.

MattB

[NotYourAverageX]

Matt...country bashing aside...this can only have BAD implications for comic store owners. Will this precedent be set only for Texas, or for the whole of the U.S.?

I feel really sorry for the dude who had to go jail. Instead of politicising the issue to the extreme, lets spare a thought for him.

[OcCaM]

Yeh what Matty said!

Besides, any country that does not have BlackBriar in it, can't be all bad!

And who says TExans aren't all bad? Doesn't Bush come from there?