The lawyer for the Comic Book Legal Defense Fund (CBLDF) has filed an appeal to the highest criminal court in Texas in the obscenity conviction of Jesus Castillo, manager of a Dallas comic store.  Castillo was convicted by a jury in August 2000 of 'display of obscenity' for selling Demon Beast Invasion #2 to an adult.  He was sentenced to 180 days in jail, a year's probation, and a $4,000 fine. 

This second appeal, a Petition for Discretionary Review, is being made after the Fifth District Court of Appeals upheld Castillo's conviction in July in a 2-1 decision.  The dissenter, Justice Tom James, agreed with the majority that the comic was obscene, but felt that it was not clear that Castillo knew what the content was. 

The original conviction was surprising.  The store in question handled its adult materials carefully, with three display areas:  its general display area, an 18 and up section in the back of the store, and explicit adult materials kept in a box behind the counter.  Store employees also required proof of age before selling adult materials to younger customers.  But in its closing arguments, the prosecution used the store's proximity to a school and the comic format to argue that the product was designed to appeal to children.  Here's an excerpt from that closing argument:

'And, again, why are we here?  ... This medium, the medium that this obscenity is placed in is done so in an appealing manner to children.  Comic books, and 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.  I want to re-emphasize that the fact that all this smut is out there, does not mean it's acceptable and is decent by our community.  We're here to get this off the shelf.'

The jury rejected expert testimony from Scott McCloud and Susan Napier, who addressed the work's literary, cultural, and artistic merit.  A second charge, for selling Legend of the Overfiend to an adult, was dropped after the conviction on the first.

If the conviction cannot be overturned, the consequences for the store manager are going to be severe -- the loss of his freedom for six months and a criminal record for handling a constitutionally protected publication in a responsible way.  It's ironic that just as the nation's most respected publications are talking about the way comics are addressing serious issues (see 'New York Times Covers Green Lantern #154'), a retailer is fighting to keep from going to jail for selling an adult comic to an adult.