When we heard that the appeal of the case of retail clerk Jesus Castillo to the U.S. Supreme Court had been denied (see 'Castillo Supreme Court Appeal Denied'), we talked to Castillo (see 'On Probation for Selling Comics -- Interview with Jesus Castillo') and to Comic Book Legal Defense Fund Executive Director Charles Brownstein about the implications of the case.
Was there a political motivation to this prosecution?
I do know that there was political motivation, according to our attorneys. Mary Poss was a city councilwoman who was behind the initial investigation of Keith's Comics, and at the time she was slated to be running for mayor pro tem of the Dallas City Council, and she was trying to push through a bill which would kind of re-draft the zoning standards for Dallas. So there was a political connection.
The timeline that I have begins in November of '99 when Stonewall Jackson Elementary, which is the school across the street, published a warning that reported that 'offensive materials including videos and comics are available for viewing by minors at this location,' when in fact Keith's Comics had three levels of racking. They had a general section which took up about 80%-90% of the store; they had an eighteen and over section that was cordoned off at the back of the store; and then the most explicit material was kept in a box behind the counter and only sold to adults with ID. On the strength of that particular elementary school article, a formal investigation was instigated by city council member Mary Poss, who was preparing for an election.
What are the lessons learned? Could this case have been won?
I think that the way this case shook down, the Fund did the best job that it could. What it ultimately came down to was the whim of a tired jury. The fund brought in three experts to testify on the merit of the medium, the merit of the work in question, and the community standards of Dallas while the state prosecutor brought in no experts and simply the arresting police officer. And that testimony took a full five days of court time, and then there was a recess for the weekend, and everyone came back on Monday for closing arguments. And when the closing arguments were given, we went first and reminded the jury that the work was not proven to be Constitutionally obscene; that we have expert testimony that was not contradicted that explained the literary, artistic, and cultural value of the work in question; and without conflicting testimony they had to side with the experts.
And when the prosecution went last, she entered prejudicial statements. She said, 'It doesn't matter what kind of experts or evidence you have, use your common sense. Comics are primarily what we think of as for kids, and they're putting this smut in the medium to appeal to our kids. It's being sold in a store right across the street from an elementary school, let's get it off the shelves.' Well, the judge had instructed all parties that the proximity of the store to the school was not relevant in this case. Everybody knew that, but the prosecutor introduced that statement in the closing arguments rather shrewdly, and I think distorted a bit of the jury's perceptions. So when they came out less than an hour later with a guilty verdict, it was, to my reading, a fairly knee-jerk emotional reaction. And once that occurred, the die was cast. So there was no legal error.
When we took this case to the appeals court, we came back with a split decision with two of the justices upholding the decision because there were no legal errors made, and one of the justices voting to overturn the decision because there wasn't adequate evidence that the suit rested on the content and character of the work. When we filed a motion for discretionary review with the Texas Court of Criminal Appeals -- the highest authority in this state for this kind of a matter -- and got back a denial, it was pretty clear we were nearing the end of the road. But on the principle of the matter, on the grounds that the work was not Constitutionally obscene, and the principle of the matter that the work in question was sold by an adult to an adult, in an adults only section of the store, we felt that it was our moral duty to take this case as far as the legal system would allow it. And we knew walking in that it was a very, very long shot that the Supreme Court would hear this case. The Supreme Court hears between two and five percent of all cases brought before it. However, as long as there was a possibility of justice being served, we had to move forward. And so, I think that the Fund waged an aggressive defense.
Clearly our aggressive defense is what got the second charge against Jesus dropped -- that would be the sale of the Legend of the Overfiend comic -- so I think that we did a good job. Unfortunately, we were working against a very conservative community that had a very narrow vision of what this medium was capable of, and considered prejudicial statements in their final decision. I think in the future when the Fund receives a case like this -- and at this stage of the game it really is a matter of 'when' and not 'if' -- we need to be as aggressive as we were last time and perhaps a bit more cutthroat. And what that requires then is the full support of the community so that next time there is no appeal because we win on the first shot.
Considering that you think the problem was that the jury considered prejudicial statements, do you think that the case would have been better tried by a judge instead of asking for a jury?
Jeez, I don't know. That's like a 'what if the sky was green?' theory. I can't make a determination on that.
In terms of lessons learned, it sounds like there's not much the Fund could have done differently; that one of the lessons learned is, 'there are going to be some losses.'
That's right. And the truth is that fighting the right battles is not a guarantee of winning the right battles. Especially given the current American political climate wherein we're seeing more precedents and more laws being created to actively attack and actively censor certain materials. And with Act 858 in Arkansas; and Protect on a federal level; and recent convenience store and video busts in Ohio, Pennsylvania, and California; what is clear to me is that we're moving into an election climate that is going to be actively attacking retailers of adult material. In that kind of a climate, you've got to fight your best fight, but you have to be aware that you're going to be fighting some pretty conservative communities that actively disagree with you. The point is that the fight must be fought, and I think that in this particular case if the Fund hadn't been there to pay for the defense, then we're looking at the owner of the shop that Jesus worked in and possibly Jesus himself being financially wiped out. We might have been looking at him being tried on both counts as opposed to just one count. We might have seen him actually serving jail time as opposed to serving a suspended sentence that's unsupervised. So the fact that the Fund was there made it so that the situation wasn't as bad as it could have been and that's part of why the Fund is there. We need to be watchdogs and we'll continue to be watchdogs, and as we move forward I believe that job is going to become much more urgent and perhaps much more difficult.
We asked Jesus about lessons learned, and he said Keith pulled out his adult section and now doesn't sell anything above about an 'R.' Is that going to have to be what some retailers in certain communities have to do in order to avoid being prosecuted?
Well, right there is a tangible example of the chilling effect that this case has had upon the First Amendment rights of Keith's Comics, Keith's customers, and perhaps all of Dallas. And that right there is a good example of the negative effects of this case. The truth is that retailers have the right to responsibly (and that is the key word here) display and sell adult merchandise to adults. But unfortunately in volatile political times, it is up to the discretion of each individual retailer what their product mix is going to be, and as to whether they're going to take the risk of displaying, and carrying, and selling adult material. What they need to know is that if they choose to carry it, they need to be responsible about how they do it. And should trouble arrive at their doorstep the Fund is ready at a moment's notice to assist them.
Any other comments on this case?
Just that this case in particular is as clear a sign of the times as we need for the environment that we're going to be facing in the coming year. Consequently, the Fund is prepared to bulk up its resources and shore up its allies to ensure that when these prosecutions for laws that are being created this year come down, that we'll be ready and able to fight. But it's going to require the continued support of the community that so generously supported our case for Jesus.
What's the strategy of the Fund going to be in future cases of this sort?
I think as we move forward though this changing political climate we're going to have to come out with both barrels blazing from the very beginning of every case. I think that what's been happening steadily with the Castillo case and with all of the amicus activity in South Carolina, Arkansas, and California is that the Fund's profile has been steadily rising in legal circles, and the evidence of that is how many more interviews we're giving to legal and national publications. Consequently when we have a case like this in the future, when people hear the name Comic Book Legal Defense Fund they're not going to chuckle and go 'what's that?' they're going to say 'oh, those guys, they're going to put us through hell.' And I think the strategy is to come out swinging right away and knock 'em out in the first round.