Tuesday, May 22, 2001

Obscenity jury acquits shop owner

Law ambiguous, foreman says

By Marie McCain
The Cincinnati Enquirer

        A Hamilton County jury wrestled over whether three adult videos were obscene. On Monday, after nearly three days of deliberations, it decided they were not.

        The six men and six women on a Hamilton County Common Pleas Court jury acquitted Pendleton store owner Elyse Metcalf of three counts of pandering obscenity for selling the movies to undercover police.

        After watching the videos for more than four hours in open court, jurors thought the prosecution did not eliminate reasonable doubt under complex state law dealing with obscenity.

        “We decided what we decided because we looked at the evidence and the law and we felt that the law was ambiguous,” said Mike Hellebusch, the jury foreman. “It left room for reasonable doubt.”

        This case and its outcome are significant because the trial was the first recent court test of Hamilton County's community standards — what its residents believe is obscene.

        “We just keep getting fed this story that the people don't want it and that our community standards are dif ferent. I maintain that they are not different and that our politicians are not in touch with reality,” said H. Louis Sirkin, one of Ms. Metcalf's attorneys.

        Hamilton County Prosecutor Mike Allen said he was disappointed by Monday's verdict, however, he considers it an isolated occurrence that in no way predicts the outcome of future trials.

        “It was the decision of this particular jury on this particular date. I don't feel the state could have done any more than we did. This is not going to discourage us,” he said.

        One of the videos, Jeff Stryker's Underground — which depicts gay sex — was previously targeted by the county.

        It was the same video sold in 1999 by Larry Flynt's Hustler store, and led to similar charges against Mr. Flynt. In a deal with prosecutors, Mr. Flynt pleaded guilty to pandering obscenity and agreed to stop selling explicit tapes in Hamilton County.

        In June, the video will again be evidence in the trial of Joe Neuhaus, owner of Tip Top Magazines, who faces six counts of pandering obscenity.

        After Monday's verdict, Mr. Flynt's brother, Jimmy, said he was happy Ms. Metcalf “beat Hamilton County's finest.”

        “I hope it frees a few neurotics,” he said. “I made a mistake. I should have went ahead and tried it. ... I'm just glad she won. I knew the videos in question did not meet the obscenity standard in Ohio.”

        Ms. Metcalf has said that she opened her store, Elyse's Passion, in the hope of liberating the “sexually repressive climate” of Cincinnati. She intends to continue that mission, her attorney said.

        But her days in court aren't over.

        She'll next face off against city of Cincinnati prosecutors who say she is in violation of city law because she isn't licensed to run a sexually oriented business.

        A 1996 ordinance requires that owners and employees of sexually oriented stores have licenses.

        In a related case, Mr. Sirkin and Cincinnati Assistant Prosecutor Melanie Reising argued on Monday before the 1st District Court of Appeals whether the city's licensing laws for sexually oriented businesses should be enforced.

        Phil Burress, president of Citizens for Community Values, an anti-porn group, played down the impact of Monday's jury finding.

        “There is no one case (where) community standards are set,” he said. “If that was true, then (Ms. Metcalf) never would have been allowed to sell these (videos) when Larry Flynt pleaded guilty two years ago. ... There will be more cases. There will be more wins. There will be more losses.”

        He said that within weeks his group intends to introduce legislation in the Statehouse outlawing certain sex acts on video.

        “The only travesty that could possibly occur is if we become like Columbus, Cleveland, Toledo or Dayton that are overrun with hard-core pornography. That would happen if we stopped prosecuting,” he said.

        Mr. Hellebusch agreed that one jury's decision won't define a county's standards on obscenity.

        “We were only 12 people (asked) to speak for the entire community. I think we were definitely a diverse group. But we were still only 12 people, each with our own opinions. I think that each community — Hamilton County is a very large area with very diverse communities — needs to set that standard for itself.”


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