By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
The court stenographer is cracking slightly off-color jokes. Two young male prosecutors who've stopped by are thumbing through the racy evidence, trying their damnedest to maintain sober looks. Even Judge Ralph Taite is reminiscing about a funny thing that happened at a long-ago blue-movie trial. Everybody, it seems, is enjoying his work.
The only glum face belongs to 22-year-old Brenda Woodson, the defendant. Dressed up for court in a charcoal suit and white blouse, she's pursing her lips, clutching her hands and sitting upright and rigid at the defense table.
Usually, this work-a-day misdemeanor court concerns itself with bad behavior on the road. Tucked behind the jury box and tacked to the paneled walls are hand-drawn diagrams of streets and intersections, black-and-white tracings of the errant paths of people who drink too much and try to drive home.
On this Wednesday in mid-April, though, the court has something more challenging on its plate than a routine DWI. Unlike a driving violation, the crime alleged has no posted speed limits, no scientific breath test and few double yellow lines.
Although roughly two dozen stores around Dallas rent or sell movies depicting unsimulated sexual acts between consenting adults and are licensed to do so under city codes, Dallas police vice officers routinely wander into the stores, pick out one or two particularly graphic titles and file misdemeanor promotion-of-obscenity charges against the clerk who rang up the sale.
That's right. The clerk. Not the owners, who in this case have led prosperous lives in Dallas, circulating in the ranks of respectable society. Gary Hartstein and Paul Radnitz, the principal owners of New Fine Arts Video, are nowhere near the defense table today because it's the city's policy to register its distaste for the burgeoning porn industry by prosecuting only the working sods who run the stuff through the scanner and put the money in the till.
These enforcement actions, which happen once or twice a month at New Fine Arts, appear to be more political accommodation than anti-porn crusade. They do next to nothing to stamp out smut. The ritual does, however, allow Dallas police and prosecutors to say they're doing something when complaining residents or the Center for Decency--backed by notables such as real estate mogul Ebby Halliday and car dealer Ray Huffines--ask what's being done to push back the licentious tide.
The vice squad's busts, which have been going on routinely for the past decade, are a problem for one group of people, and one alone: the low-wage store clerks who are criminally charged.
Over the past 18 months, 14 clerks working at New Fine Arts Video's two Dallas stores have picked up 22 movie-related obscenity charges, each punishable by up to a year in jail and a $4,000 fine. Woodson's came last August, when undercover vice officer Craig Reynerson plunked down $43.50 for Euro Angels #20, a six-scene European title featuring a lot of close-ups of some decidedly unromantic sex.
"I don't remember him coming in, but I remember the day because it was my birthday," Woodson recalls. "When they came back and charged me, I cried. A little later I quit...I didn't especially enjoy working there." Woodson says she took the job because she needed the money, and 10 bucks an hour at the relatively clean, well-lighted porno superstore was better than anything else she could find at night. Living alone, she needed to pay rent and her tuition at Collin County Community College, where she's taking 3-D computer animation. She's going on to Prairie View A&M next year.
In the past, Woodson's bosses would have encouraged her to plead guilty and would have ponied up for her fine, usually around $1,000. There are clerks working in Dallas porno shops with more than 50 such convictions to their names.
Over the last 18 months, though, New Fine Arts and another large shop, Amazing Superstore, have taken a different tack. They began hiring Andrew Chatham, a fresh-faced lawyer who recently worked as a public defender, and they've been taking the cases to trial. To everyone's surprise, Chatham has won every one--11 in a row going into Woodson's. He has forced 17 other charges to be dropped.
Chatham's success rests in part on changing sexual attitudes, which have no doubt loosened in Dallas over the years. It is still a stronghold of "red states" social conservatism, but Dallas is the kind of city where one week a group will hold a golf tournament with topless dancers tending the flagsticks, and the next week someone will be teeing it up to support a decency campaign.
Chatham's main line of defense, though, has to do with fairness. Is it right to issue a shop a $750-a-year license to sell graphic adult material, then prosecute bottom-rung employees for selling that very thing? Dallas jurors have a keen sense of justice, Chatham has found--whether they like their erotica strong, weak or not at all. And when it comes to hypocrisy and flawed policy, they know it when they see it.
"I grew up in the free love era," Suzie Samano, the court reporter, blurts out to nobody in particular. "Now I raise flowers and look at birds. That's when you know you're getting real old."
Samano, who's been working for Taite since he took the bench in 1988, asks bailiff Keith Birdsong whether he gets the Victoria's Secret lingerie catalog. "The sexiest magazine in my house is Redbook," says the jovial, balding Birdsong. His answer is followed by a general discussion about the merits of various Victoria's Secret underwear models and the authenticity of their upper curves. "Tyra Banks' are as fake as a three-dollar bill," pipes in Carmen Pearson, the lead prosecutor. "You know she paid for those."
Even Judge Taite gets into the act, recalling from the bench how a Baptist minister was brought in by prosecutors as an expert witness at a long-ago obscenity trial. "When they turned off the lights and were about to show the film, he got up and left the room," Taite says, chuckling. "Everybody was telling him, 'Hey, you're supposed to watch.'"
After Taite takes the bench and rules in the prosecutors' favor on several motions, allowing the trial to begin, 18 prospective jurors file in, a panel that will be whittled down to a jury of six.
"You didn't imagine it was going to be this interesting in misdemeanor court," Chatham tells the group during his turn at the questioning, when his courtroom personality starts to emerge. He's upbeat, funny, sharp, but never smug. Among his questions, he asks if anyone would be too uncomfortable to sit and watch a hard-core movie, which is answered by a middle-aged woman in the second row. "I'm a little uncomfortable watching with strangers. It might be different with people I know," she says. After a few giggles in the galley, then a few laughs, Chatham's face erupts in a big, sunny smile.
All along, he's easing the panel into what it's about to see. "Just because it's explicit doesn't mean it's obscene," he says. "I can buy this tape. It is perfectly legal to own." Until a jury finds it to be obscene, he says, "the material is presumed to be legal to sell." Even if it is deemed obscene, the criminal code concerns promotion--selling--not simple possession of the tape.
After a while, Chatham has the group talking and listening, volunteering more than anyone wants to know. They're so open, in fact, that they begin to work against his efforts to pick a sympathetic jury. A biker type with long hair and a bushy blond beard says he has more than a passing knowledge of movies in which everyone is busily nude, and he likes them just fine. "It would have to be pretty weird, I mean way out there," says the man, whose hulking chest and belly are covered in a blue T-shirt printed with an image of the World Trade Center, a flag and the words "God Bless America."
The judge dismisses him "for cause," meaning there's no way he could be fair and impartial toward the state's ideas on porn. Another man is dismissed after he takes issue with the Texas obscenity code's inclusion of sodomy as a potentially bad thing.
"They're a chatty bunch," Chatham says at the break. "I had a guy one time who raised his hand and said, 'I love porn!'" Asked what type of jurors he is looking to weed out, Chatham mentions the obvious "ultra-right-wingers." But there's a combination of jurors he imagines might be even more likely to convict. "One attractive woman and five men," he says. "They'd be falling all over themselves to be chivalrous. That's my nightmare jury."
For their part, Pearson and co-prosecutor Michael Jarrett are at a disadvantage. They have little experience trying obscenity cases, which land in the assorted courts before various prosecution teams, and the two are corrected several times by Chatham as they try to explain the law.
The law of the land on obscenity for the past 29 years, set out by the U.S. Supreme Court in the landmark Miller v. California case, makes porn a local issue. Rather than set out a laundry list of dos and don'ts limiting the First Amendment right to free expression, the high court left the matter to local courts.
Jurors are asked to determine whether sexually charged material is acceptable under "contemporary community standards," a moving target that is set, movie-by-movie, after viewing the film. To find a movie obscene, jurors must also find that it depicts specific sex acts in a "patently offensive way" and lacks serious artistic, political or scientific value.
During the jury questioning, Jarrett makes some general points: that community standards means the whole state of Texas, not just Dallas County. "Normal sexual acts are still obscene under the law," Jarrett tells the panel. "The fact that it's on the shelf doesn't mean it's not obscene."
In time, a jury of four women and two men is seated and Jarrett and Pearson begin presenting their evidence, opening with the police officer who made the bust.
Reynerson told the jury he picked out Euro Angels #20, Anal Retentive because he was familiar with its director, who is known for super-hard-core productions. He also says he chose it because of the multiple photos on the cover previewing the sex acts performed in the film. Reynerson paid the clerk, who happened to be Woodson. She put the tape in a black plastic bag, walked it past the security gate and handed it to Reynerson as he left.
The officer went back to his office, viewed the tape, wrote an affidavit describing its contents in legal terms (in Texas law, the act performed by the former White House intern on the recent president is called "oral sodomy") and a magistrate issued a warrant for Woodson's arrest. Another officer went back to the store to obtain Woodson's name, so they'd know whom to charge. Dallas' dirty-tape cases are processed in such assembly-line fashion that police sent Woodson a form letter requesting that she turn herself in.
A month after she did and posted a $500 bond, prosecutors offered Woodson a plea bargain of a day in jail and a $1,000 fine.
After Reynerson's testimony, the prosecutors wheeled out a television, dimmed the lights and began rolling the two-hour, 20-minute tape.
What the jury got was straight-ahead, nonviolent porn, opening with a scene featuring two men and one woman coupling in all ways physically possible, with a big emphasis on the moving parts. By the time the lengthy scene ended, the jurors got a refresher course on the transfer of human DNA.
While Reynerson's job required him to view and outline the entire tape, which moved from sex scene to sex scene without even the pretext of a plot, the jury got the drift after about 30 minutes and asked that it be stopped.
"Kind of the same thing over and over," bailiff Lori Meyers muttered after the jurors left for another break. As they went out, Chatham marched in with a pile of exhibits: copies of several newspapers, including the Dallas Observer; recent issues of two girlie magazines, Penthouse and Hustler; two porno tapes in their box covers and the R-rated Hollywood hit Basic Instinct.
"Oh, boy," the court reporter chirped. "More movies!"
Chatham explains he wants to use his little collection to show the jury that Euro Angels #20 is no different from material for sale to adults at corner liquor and convenience stores, that the porno box covers are all pretty much alike and that mainstream Hollywood releases show some moderately explicit lovemaking, and throw in a dose of bloody violence to boot.
Basic Instinct, a 1992 film starring Michael Douglas and Sharon Stone, opens with the scene of a beautiful woman, naked, grinding away on top of a man while lashing his arms to the bedposts with silk scarves. As things reach a climax, literally, she pulls out an ice pick and furiously stabs the poor guy in the chest. We don't see genitals, but we don't miss a single moment of the murderous pick-work.
As for Hustler and Penthouse, the current issues show what could be still shots from the County Criminal Court No. 4 matinee, a fact not lost on two friends of the prosecutors who stopped by and, oh-so-briefly, browsed through the slick-covered magazines.
As for the Observer and the other papers, they are intended to show that widely circulated publications, even some large dailies, run ads for shops such as New Fine Arts Video. When the big dailies carry the ads, they tend to be postage-stamp-sized and placed among the movie listings or sports pages. Still, they run.
"Nobody would carry any of this if it didn't sell," Chatham says. "If it's selling in Dallas and San Antonio and Houston and Austin and Amarillo, you have to say it's acceptable under contemporary community standards."
All of this might be illustrative, but the jury isn't going to see the Hollywood murder scene or the men's magazines. Pearson and Jarrett object to the introduction of these outside materials as irrelevant to the narrow question of whether Euro Angels #20 is obscene and whether Woodson sold it. Taite agrees and rules in their favor. Chatham says later that some Dallas judges have let him present this broader look at community standards. Some have not. There's been no need to test the legal issues, because so far he's never lost a case and needed to appeal.
More important to the outcome of the trial, he introduces a copy of the store's license and the section of the Dallas city ordinance it's issued under. The code requires porn shops to obtain licenses to sell adult material, and it spells out what sex acts and displays of nudity fall under the law.
Euro Angels #20 pretty much covers them all.
First, however, Jarrett, a young man with gelled, brush-cut hair and a similarly cropped delivery, begins the final arguments with a brief outline of the state's case.
"This is no time to change the law," he tells the panel. "Obscenity. That's what it was...It was not two consenting adults having loving sex. That's not what we saw. What we saw was graphic, disgusting, vile, perverted. I think we'll all agree on that."
Reminding the jury that it should consider community standards not just in Dallas, but across the state, Jarrett says, "It's obscene in Dallas, in Houston, in Longview, in Waco, in Quanah.
"Next question. Did the defendant know the character and content of what she was selling? She knew what she was getting into. There were 5,000 pornographic, obscene videos on the shelf. She sold them every day. When this particular video came across, she knew what was in it. No question about it."
Yes, he says, the store was licensed to sell tapes depicting people in sexual acts, but not obscene ones. "If you have a store, and you're selling liquor when you're only allowed to sell beer or wine, you're violating the law," Jarrett says.
Chatham, speaking next, continues Jarrett's analogy. "This is like giving someone a license to sell beer and then arresting the clerks for selling beer. They are allowed to sell these videos in the city of Dallas. The city does not allow [films depicting] bestiality. They do not allow masochism, sadism, rape or torture. Why? Because those things are dangerous. Those things incite violence. This movie didn't have any of those things. You may not approve of it--I have no idea--but it fits in with contemporary community standards in other areas of the state.
"To say this movie was somehow different than the other 5,000 videos...How was Brenda to know if this was somewhat different? They didn't put on any evidence that this tape was any different than any other X-rated movie in there."
Although he says he doesn't lecture jurors on the First Amendment, Chatham does put the issue of personal freedom out there for consideration. "The government wants to legislate morality. These movies are in Dallas, in Garland, all over the state. We allow people to have different ideas. It's a founding principle of this nation. They have utterly failed to prove this is obscene and that it isn't a part of American diversity. A government lawyer wants to say it's vulgar--you sell that, and you're going to jail. That isn't what happens in America."
Last comes Pearson, who gives the state's rebuttal. "Ladies and gentlemen, don't let them confuse you..."
She says it's clear the tape and its explicit cover passed before Woodson's eyes, that she sold it and that it's obscene.
The jurors are tuned to every word, especially when Pearson moves in close, leans on the jury box and speaks quietly to the middle of the group, where three women jurors are seated. Pearson asks them what their Sunday school teacher would think about the movie, what their pastor would think. "What's the community? Tyler. Big Spring. Your preacher. Your Sunday school teacher," she says.
Religion. Morality. Free expression. American diversity. With only a reporter and a prosecutor trainee watching in the empty spectator benches, these are the issues on the table this day in misdemeanor court.
The jury repairs to deliberate, and Taite goes back to the court's other business, taking a guilty plea from an orange jumpsuit-clad inmate charged with disorderly conduct and vandalism of a car.
She had good reason to be concerned. The jury turned out to have no tolerance for strong porn.
"In our minds, it was totally obscene," recalls juror Doug Enders, who, along with the jury foreman, Dennis Dillon, discussed the case later. "We were about to convict her."
Enders, a 35-year-old computer consultant from Irving, says that if Dillon had not meticulously run through all the legal issues in the judge's instructions, they would have found Woodson guilty.
But Dillon, an executive with a poultry company, wondered about the license and Woodson's role as a clerk. What exactly is New Fine Arts Video West supposed to be selling? The jury took a break and asked to see the copy of the license and the Dallas ordinance that covers it.
The code, they noticed, uses precisely the same language to define dirty movies as the state's obscenity statute, meaning the store is licensed to sell movies such as Euro Angels #20 that show adult actors involved in a wide variety of sex acts.
"The city allows the sale of it. It's legal to sell," Enders says. "That sealed it for us. I don't see how they expect to win any cases like this."
He says the jury also questioned why a sales clerk, and not the store's owners or managers, was on trial. They might have taken a different view if someone more responsible for the store's wares were at the defense table, not because of the legal issues but because they were so stunned by the tape. "We were looking around to see if he was out there," Enders says.
Hartstein and his uncle, Paul Radnitz, are the principal partners in a company that owns 13 porno-tape stores in Texas, from Brownsville to Abilene, Dallas and Kaufman County to El Paso. "This is the only place where we're getting this kind of problem," Hartstein says of the busts. "It's harassment."
If it is, its only effect has been to add a few dollars to the cost of doing business. Neither Hartstein nor Radnitz has a single charge against him in Dallas County criminal records. They live in large homes in Plano, drive expensive imported cars and enjoy a prosperous anonymity. In fact, Radnitz and his wife were featured recently in The Dallas Morning News in a Sunday feature about their long and happy relationship. It didn't mention what he does for a living.
The routine charges have been a headache, Radnitz says. They raise labor and legal costs. "I have to raise the pay scale. We're just like any other employer. We have a 401(k), hospitalization, paid holidays...This is harmless entertainment for adults who seek that sort of entertainment," says Radnitz, who doesn't especially talk up the end of his product line that makes it into court. "They show this stuff to jurors. They think it's disgusting. After the initial shock wears off, boredom sets in. It's boring."
In the early 1990s, major legal battles with the city "washed out," in Radnitz's words, and Dallas police settled into the habit of buying tapes--because under current federal law, they can't be confiscated--and busting clerks, who are the only people on which a simple criminal case can be made conveniently.
Even those efforts have abated slightly in recent years, the owners say, but vice-squad buys are still routine. Lately, Dallas police have focused on tapes and DVDs that combine the sex with some particularly offensive behavior, Hartstein says. "We stopped carrying Max Hardcore. They seemed to be focusing on it." His reference is to a particularly sleazy, low-budget line of tapes named for their director/producer/actor in which the women actors are pointedly demeaned.
Captain Jack Bragg, head of the 22-man Dallas vice unit, says that is precisely the result he's trying to achieve. "We read their trade magazines," he says of the Southern California-based adult-entertainment industry. "They know what is regulated in various parts of the country, what they can send where. If we didn't do what we're doing, they'd flood this area with even stronger materials. Enforcement holds them back."
Bragg says his officers target "the most egregious materials," although under his definitions, that would include a lot of the films in the stores. "We also respond to complaints," he says. "I hear from the Center for Decency and the American Decency Association, and there's another group out of Oklahoma City, the Video Vigilantes, that we hear from from time to time. Then I have the mother whose son ends up with a tape and so on and so on. There are people at the grassroots level who don't want to see this community flooded with filth."
Bragg says county prosecutors might do a better job than him explaining why clerks are targeted, but he gave it a try: "The owner doesn't sell it, they're hard to find, they have shell corporations, all that kind of jazz. Obviously we'd like to go after the pigs and scumbags in a way that wouldn't make the Supreme Court jump. But they left it up to vice captain, who has to gather it up, charge who we can and send it to the jury."
Until recently, he says, the exercise ended in plea-bargained convictions for the clerks. "They paid their fines and went along. Now, just because some lawyer has figured out how to bumfuzzle a jury, that doesn't relieve me of my responsibility to enforce the law."
It's debatable, though, whether the old way of doing things does much besides loading down sales clerks with criminal records. The tapes and the stores have gone on largely unaffected.
That is, until Chatham took the case of John Wallace, who had been charged with selling a hard-core video at New Fine Arts' store on Mockingbird Lane in early 2000.
"He didn't want to take a plea, because he didn't think he did anything wrong," Chatham says. The owners were leery of letting a young lawyer take on such a complex case, but once the trial began, the prosecutors showed themselves to be so rusty in presenting an obscenity case that the judge directed the jury to find Wallace not guilty as a matter of law.
With Woodson's acquittal, Chatham's winning streak now runs to 12. "That was the toughest one I've had," he says. Some juries have been more laissez-faire about obscenity than hers. Others have seized on the hypocrisy of going after low-paid clerks. "I try to make them ask, 'Who are we punishing and why?'" Chatham says. "Juries can have a great sense of fairness. That law is not a wooden thing."
Woodson, who had never been to court in her life, says she's relieved to have the trial behind her, and not have a sex-crime conviction following her through life.
"Personally, I think that tape is disgusting," she says. Some of the tapes she rented and sold were erotic, she says, and she would recommend them to women customers looking to take home a thrill. She took a few free rentals home herself, although her film tastes run more to sci-fi.
"There were all kinds of tapes and all kinds of customers," Woodson says, explaining that the patrons ranged from the clean-cut couples, to men with weekly porn habits, to weirdos in search of bestiality scenes.
After the bust, though, she'd had enough of porn-store work. "I'd been there a year and half," she says. "You get tired working around so much smut."