Says Sturman jury misled.

By Bruce A. Taylor

Ás a former assistant Cleveland prosecutor and assistant law director, this writer has been involved in the prosecution of hundreds of obscenity cases since the U.S. Supreme Court announced its famous obscenity guidelines in the case of Miller vs. California on June 21, 1973.

Though I continue to represent the city on appeals, most from Cleveland jury convictions for "pandering obscenity" under Ohio law, but also including cases pending in the Ohic Supreme Court and U.S. Court of Appeals dealing with the definition of obscenity, the following comments are one attorney's observations on a sad and misleading result in the trial of Reuben Sturman and his Sovereign News Co. employes.

The major misconception about the trial is that the jury's "major problems" with the Supreme Court's guidelines were the result of a poorly drawn "test" for obscenity. The truth is that the guidelines given to the jury on "prurient interest" were not the same as those announced in the Miller case.

In the instructions given to the jury, the judge gave them a definition of prurient appeal which was responsible for the verdict reached.

A comparison of the judge's charge and the Supreme Court's version will illustrate the basic reason why the federal government's case was so needlessly wasted.

The judge told the jury: "The first prong of the obscenity test is whether the work, taken as a whole, appeals. to the prurient interest of the average, person in the Northern District of Ohio, applying contemporary community standards."

However, on page 24 of its Miller decision, the U.S. Supreme Court dictated that the first part of its three-part test was: "(W)hether the average person, applying contempo-

rary community standards, would find that the work, taken as a whole, appeals to the prurient interest.”

The clear difference between these two revisions is evident, but why the Sturman jury was not simply read the Supreme Court's own definition is not so evident. One explanation is that the attorneys for the defendants are the best in the country in obscenity law and simply overwhelmed and prevailed upon the court to accept their view of what the jury should be told,

This was clear from the opening statement of Sturman's lawyer, Harold Fahringer of Buffalo. Fahringer promised at the start of the trial that his "expert witnesses" would prove that these materials, though disgusting, etc., were not obscene because they do not create a prurient interest in the average

person.

I could agree with Fahringer if that were the law, but since that has absolutely nothing to do with U.S. or Ohio obscenity law, I was startled that the federal prosecutors failed to object.

Both prosecutors are experienced and very excellent trial attorneys but not specialists in obscenity cases. One prosecutor. simply stated that the judge's charge would set the jury straight, despite what the pornogra· phy lawyers said.

This should point out one major lesson. The government must be supported in its effort to train prosecutors with the specialized knowledge necessary to deal with the subtleties of their field of law. The pornography lawyers successfully misdirected the trial on the law, and this confusion was perpetrated in the court's instructions.

The jury cannot be blamed for following the charge; such is their duty. However, given the Supreme Court's true definition, the jury could

have found all the materials obscene.

In saying that average people.do not have a morbid or unhealthy: sexual interest the jury was correct, but obscene materials are not those which make average people desire to engage in the type of depravity portrayed. If this were so, almost nothing would be obscene. This what happened here.

These materials were as obscene as any films or magazines' found ob scene by Cleveland juries, California juries, juries in Tennessee, Florida; New York, Illinois, Texas, Arkansas and the other several states. Nearly every obscenity case tried in America since 1973 has followed the "Miller Test" as the Supreme Court gave it. The convictions which have résulted show the workability of that test.

The Miller Test," properly used allows the average adult person using his local community as a standard, to find that a sexually exe plicit movie or magazine is obscene because it caters to or "appeals to a generally morbid sexual urge.

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This means that if you were to stop an average person and ask him if a Sturman film would appeal to sexually obsessed person, and he said yes, the material could be obscene. It was not designed to mean that it could be legally obscene only if the film made him sexually obsessed This is where the judge's emphasis on the "effect" of the material was in error and misleading.

Of the numerous trials for ob scenity in Cleveland over the past few years, only one jury reached an acquittal because of the test for ob scenity given by the Supreme Court and that was in relation to lea homosexual magazine. Our trials here, and the Larry Flynt conviction in Cincinnati, show that when obscenity is defined as the Supreme Court gave it, juries can reach their verdicts in good faith and with little problem.

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The major emphasis which should come from this tragic trial is that the American criminal justice systém is not infallible or self-healing of society's ills. The plague of obscene movies and magazines is a shameful example of our own weaknesses. The pornography industry ruins countless lives by leading young women and men into a life of prostituted dis respect for our God-given sense of decency.

The public should not excuse por nography and should continue to work for decency and a proper example to our children. We owe at least that much.

Taylor, a lawyer here, is a member of the legal staff of Citizens for De cency Through Law.

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