Saturday, May 31, 2003

Pandering conviction voided

Appeals court says Dute didn't get fair trial

By Dan Horn
The Cincinnati Enquirer

An appeals court on Friday threw out the conviction of an Anderson Township woman who was sentenced to a year in prison for selling videotapes of her sexual encounters.

Jennifer Dute, who has served seven months of her sentence, was granted a new trial and could be freed from prison after a bond hearing Monday.

In a 2-1 decision, a panel of the Ohio 1st District Court of Appeals found that Dute did not get a fair trial and received too harsh a sentence.

The ruling is a setback for the Hamilton County prosecutor's office, which lost a similar obscenity case in 2001. Prosecutor Mike Allen, who like his predecessors has taken a tough stance on pornography, vowed Friday to appeal the 1st District's ruling to the Ohio Supreme Court.

Dute's lawyer, H. Louis Sirkin, said the ruling is vindication for his client, who hopes to return home next week to her husband and 1-year-old son.

But Sirkin said the ruling is bittersweet because Dute already has served more than half of her prison sentence. Dute had asked last year to remain free pending the outcome of her appeal, but a different panel of the appeals court voted 2-1 against her.

"As a result of that, this woman has spent seven months in jail," Sirkin said. "How do you give that back to her?"

Dute, 32, was convicted of pandering obscenity for selling a series of videos showing her having sex with multiple partners. Her 61-year-old husband, Alan, was accused of shooting the videos but was found not guilty of the pandering charges.

During her trial, Dute's attorneys argued that she was singled out by law enforcement because she sold her videos on a Web site that ridiculed Hamilton County Sheriff Simon L. Leis, a staunch opponent of pornography.

The appeals court determined that Dute did not get a fair trial because Judge Patrick Dinkelacker refused to allow defense attorneys to show jurors a similar explicit video available in Hamilton County.

The availability of other videos is relevant in obscenity cases because juries must determine whether a particular community's standards tolerate the sale of explicit materials.

The court also found that the judge should have declared a mistrial after several jurors admitted they had heard or read media reports about previous pandering charges against Dute.

"The information was highly prejudicial," wrote Judge Rupert Doan, who was joined in the majority opinion by Judge Mark Painter. "The trial court erred in refusing to grant a mistrial."

In his dissenting opinion, Judge Ralph Winkler said he did not believe the refusal to declare a mistrial or to allow other videos into evidence justified a new trial. He also said that after watching Dute's videos, he has no doubt the jury that convicted her made the right decision.

"The Dute videotapes are clearly obscene - they are garbage," Judge Winkler wrote. "I know it, and the jurors who decided this case knew it."


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