By Sharon Turco and Dan Horn
The Cincinnati Enquirer
A judge was asked Wednesday to decide whether Larry and Jimmy Flynt should face new criminal charges for breaking an old promise to stop selling sexually explicit videos in Hamilton County.
In an unusual legal maneuver, Prosecutor Mike Allen sought to reinstate 15 felony charges that were originally filed against the Flynts in 1998.
The pandering obscenity charges were dropped in 1999 when the Flynts agreed to stop selling explicit videos from their Hustler store in downtown Cincinnati and promised to never again sell such videos in the county.
Allen said Jimmy Flynt broke that promise when he recently began selling videos from a different store in Cincinnati.
"They made a deal and decided to violate it," Allen said. "It's not something I relish, it's not something Sheriff (Simon) Leis relishes. But, by God, if they make a deal they have to live up to it."
A sheriff's office raid Tuesday on the Hustler store on Elm Street produced evidence that the Flynts violated the plea agreement, Allen said.
Jimmy Flynt, owner of the Elm Street store, said he began selling explicit videos several months ago after deciding the deal he struck with prosecutors in 1999 was unfair.
He said he decided to back out of the deal because he should not be prohibited from selling the kind of explicit material that is available elsewhere in the community, either from private dealers or satellite television.
"There are some real constitutional questions with that agreement," Flynt said.
He said he no longer sells the videos involved in the original plea bargain and thinks it's absurd to revive 5-year-old charges.
Flynt said he suspects Leis and Allen are just out to settle an old score with him and his brother.
"They don't have any love for either of us," he said.
The move to reinstate the charges is the latest in a long line of legal battles between the Flynts and Hamilton County officials. The battles began in the 1970s, when then-Prosecutor Leis pursued charges against Larry Flynt's Hustler magazine.
The 1998 case involves the sale of videos from Hustler News & Gifts. Until the plea deal, the Flynts had faced years in prison if they had been convicted of pandering obscenity.
Instead, the Hustler News & Gifts corporation pleaded guilty to two charges of pandering obscenity. In return, prosecutors dropped the remaining charges and the Flynts made their promise that "they will not in the future, disseminate or cause to be disseminated, any sexually explicit videos in Hamilton County, Ohio."
The agreement also provided that if any of the terms of the agreement are violated, the plea becomes null and void and all charges in the original indictment will be reinstated.
"This agreement was not the result of some handshake that occurred on the Courthouse steps," Allen said. "It was an explicit arrangement made with a court's approval - a judicial agreement, if you will - not subject to unilateral interpretation.
"When you make a deal that requires a court's approval, you best be thinking about keeping it."
A motion asking the court to find the Flynts breached their plea agreement, declare the plea agreement null and void and reinstate all charges in the original indictment was filed Wednesday afternoon. Should Judge Patrick Dinkelacker decide to grant the motion, a warrant for the Flynts' arrest will be issued, Allen said.
Attorneys for the Flynts say they don't believe the plea deal was breached.
"We don't believe that legally the people who agreed to the plea have breached it," said one of their lawyers, Jennifer Kinsley.
Even if the agreement was breached, she said, "We believe it's unconstitutional because it takes away (the Flynts') First Amendment rights." If the motion leads to another obscenity trial, a jury will once again be asked to determine Hamilton County's community standards.
A community's standard - or its tolerance for explicit material - is a subjective matter that is decided case by case.
The jury must decide whether the videos have any educational, artistic or scientific value, and whether the content is more extreme than material available elsewhere in the community.
Prosecutors have gotten mixed results in recent years when they have pursued obscenity charges.
Elyse Metcalf was acquitted after a jury determined the explicit videos she sold were not obscene. Another county resident, Jennifer Dute, was convicted of obscenity charges - but her conviction was recently overturned on appeal.
Allen seemed undaunted Wednesday.
"We're going to put it before the public and let a jury of 12 people decide," Allen said.
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