Evidence Malfunction Could Cost Prosecutors Two Counts in Stagliano Trial


(Editor's Note: Richard Abowitz is covering John Stagliano's obscenity trial in Washington, D.C. for Reason. Follow Abowitz on Twitter for breaking news, and keep up to date with Reason's Stagliano coverage at this link.)

Two counts, one CD

It isn't often that a federal prosecution, years in the making, literally crashes in the middle of a trial. But in the case against adult director, producer and (most relevant to this case) distributor John Stagliano, a literal computer crash in front of the jury today could very well make two of the seven counts against him vanish by 10 AM tomorrow morning.  

The government hoped to convict on counts three and seven (using an interactive computer service for the purpose of transmitting obscene material across state lines, and making that material available to minors, respectively), by using only a single piece of evidence: Exhibit 9, a CD-R containing a downloaded trailer for Fetish Fanatic 5. Today that evidence was exposed as corrupted. Exhibit 9 at first lacked audio, and then froze entirely and crashed.

After the jury was removed from the room, it was revealed that FBI Special Agent Daniel Bradley's download of the Fetish Fanatic trailer at a Washington, D.C. restaurant/bar had been captured using a program that one prosecutor admitted to the judge was "unreliable." After further efforts, it became clear that the government's recording has irregular glitches and a section of missing audio—at the very least.

Agent Bradley then took the stand and admitted that it would be "impossible" for him to remember the entire 8 minute, 33 second 4 minute, 48 second trailer, which he viewed on January 21, 2008. In fact, it appeared he could not even remember if the glitches and audio problems on the CD-R were part of the original trailer!

Judge Richard Leon then reminded the shell-shocked prosecution that when the government tries to convict a man of two serious crimes based on a single piece of evidence, it had better make sure the evidence is beyond reproach. That is clearly not the case here. The relationship between the CD-R and what agent Bradley viewed nearly 17 months ago is unclear even to Bradley himself.

The prosecution attempted to compare the sloppy capture of the movie trailer to a recording of a grainy surveillance video during a robbery: It might not be of pristine quality, but you can still use it as evidence. But as Stagliano's lawyers retorted, the government's analogy is fatally flawed because this is a First Amendment case, and the trailer as viewed by the FBI must be judged obscene in its entirety by the jury. That is obviously not possible with a damaged, incomplete recording.

Still, Judge Leon did not immediately throw out the unreliable CD-R and the two charges connected to it, which together could bring Stagliano a maximum seven years in prison. Rather, he is waiting until 10 AM tomorrow to rule on a motion to strike the evidence. I will Tweet the ruling tomorrow in as close to real time as possible.

(Disclosure: John Stagliano has been a donor to Reason Foundation, the nonprofit that publishes this website.)

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  1. So wait, if I watched porn at work I’d get fired, but an FBI agent watches it while working?

    1. As well as the entire SEC.

      1. And MMS…

    2. But he’s working hard. So very hard.

      1. he was “hard”?

        1. It took someone this long to get that?

          (shakes head)

          1. I thought you might’ve been riffing on Silence of the Lambs and the “it was cold, so very cold”.

  2. He couldn’t even be bothered to check that his download was good? This is too rich.

    1. I have a sneaking suspicion he used some sort of free pirating software, which, as you clearly know, are often very unreliable.

  3. Would’ve been funny if the agent had to describe the events in the trailer for the jury.

    1. Unfortunately he couldn’t remember.

      We need some truth serum, stat!

    2. Can you describe the film for us?

      Man I can’t remember. I mean I’ve seen way too much porn since then to keep it all straight. And I mean I’ve seen some really sick shit. Lemme tell you ! There was this midget and this clown, right…

      1. and it was called “The Aristocrats”!

  4. If Stagliano wouldn’t force this obscene material on us we wouldn’t have to watch it.

    1. That was supposed to be in response to Tingy Wah.

  5. Just finished reeading the newspaper and watching the TV news.

    Amazing how much coverage this case got.

  6. Though my sympathy lies with the defense, I can imagine the dumbstruck feeling of woe and fury that must have passed through Agent Bradley’s stomach when his Memorex malfunctioned. Yikes.

    Let’s hope the rest of the offending material is on Betamax, HD-DVD, and Laserdisc.

    1. Why would you hope that the rest of the material can be used as evidence? You’re more concerned about the hurt feelings of the DA than the guy facing years in jail for filming consenting sexual acts between adults and then selling it to other consenting adults?

      1. prole, he listed all technologies that lost out as successful media, implying that he hopes their evidence can only be played on players that no one has any more.

        1. you would have thought that the Betamax reference was enough of a hint.

          1. Throwing in a clay tablet would have made it bulletproof.

            1. “Cuneiform” is a funnier word.

          2. I would’ve gone with Capacitance Electronic Disc.

  7. I will hope to Tweet the ruling tomorrow

    Richard Nixon must be turning in his grave.

  8. If the judge were sane he’d have had the bailiff bitch slap the prosecution across the face for wasting his and the court’s time and then had the prosecution and their A/V equipment physically thrown out of courtroom.

  9. Again, why is reason not organizing a protest?

    50 “Obama is a Cunt” signs would go a long way in making a point.

    1. Why is JB not organizing a protest? I haven’t used my “Obama is a Cunt” sign in months.

      1. JB’s sloganeering acumen is sadly, sadly lacking.

  10. it was revealed that FBI Special Agent Daniel Bradley’s download of the Fetish Fanatic trailer at a Washington, D.C. restaurant/bar

    You have got to be shitting me.

    1. I don’t know what’s worse, the location the FBI chose to “research” which potentially exposes porn to others who were not expecting it, or the fact the government felt any need to devote any resources to the subject.

      1. I guess since we found bin Laden, they had to find something to do.

  11. Ok, I couldnt be happier if this case goes down in flames, but none of this makes any sense.

    Why was he downloading it in a restaurant? Is that what made it viewable to minors or something, that he could view/download it in a public place? That can’t be right. Does he not have an internet connection at home or work?

    Second, how did he download it? He needed a unreliable program’? What so it was being streamed from some website in a format that does not easily allow one to just go to the right URL and download it in a sensible movie format. Ok maybe I can believe that. SO what then, he used a screen capture program to get it? Still, at that point he should have the file on his computer and presumably burned it to a CD-R to bring it in to the courtroom. Ok so maybe he CD-R got dinged. It happens, he should still have the original file somewhere. Why wouldn’t he just tell the judge that and go get it? ‘Unreliable program’, what the hell does that mean, I’m sure he viewed the trailer at leats once after the download, if he did, it isnt the program’s fault he used to download it. Has the judge never had a scratched CD? It looks to be that this was probably just a bunch of computer-illiterate people BSing and fumbling for a bit.

    1. Furthermore, why doesn’t he just BUY the DVD, instead of using unreliable download process?

    2. “”Why was he downloading it in a restaurant? Is that what made it viewable to minors or something, that he could view/download it in a public place?””

      It think it goes to their point, in a lame LEO way. If the FBI agent could download it in front of kids, then kids could see it. Therefore kids could see it and Stagliano should go to jail. Downloading it in a public place would have more negative weight than downloading it at home.

      It’s an attempt to sensationalize the evidence.

  12. It’s obvious what happened. He watched it so many times, he wore the video out.

  13. Fuck!

  14. “Lionel Hutz: Mr. Simpson, don’t you worry. I saw an episode of Matlock in a bar last night. The sound was down, but I think I got the gist of it. ”

  15. They don’t call them famous but incompetent for nothing. This is trial law 101. What a bunch of clowns.

  16. I was an alternate juror at a trial where the prime pieces of evidence were calls from the jailhouse by the (already incarcerated) accused. The sound quality was incredibly bad. I mean, there was no way to decipher anything being said. The prosecution insisted that the transcript they provided was completely accurate, derived, somehow, by “experts.”
    The jury convicted the guy.

    1. Blame Hollywood and dumb ass shows like CSI. Most forensic “science” is just bullshit invented by cops to convince people. What the hell kind of “expert” can transcribe illegible audio tapes? Now, I could see where you could mix them down and make it where the tape was more audible. But if that is what you did, play the remixed tape. There is no way that evidence should have passed the Daubert test. I blame the judge as much or more than I blame the jury.

      1. The defense attorney (probably a P.D.) was no gem, either. Why not hammer the point? Why not subpoena the “expert” to the stand to try to explain just how he made sense of the mess? The attorney was just basically shuffling papers. And what’s a few more years in prison for one black druggie, anyway?
        I don’t think anyone in that courtroom, maybe not even the defendent, really cared.
        I’ve seen it a hundred times, but I was more personally involved with this one. It still makes me a bit queasy. (Although I wouldn’t doubt at all that the guy really did try to have a couple ounces of marijuana smuggled into his cell — which was the allegation.)

        1. The expert never testified? That is disgraceful. There is no foundation for the evidence without the expert. How do we know the prosecutor didn’t just type up the transcript in his office? That is just sorry lawyering.

      2. “”Blame Hollywood and dumb ass shows like CSI.””

        Why? Can’t I blame stupid people instead?

  17. I’m still trying to figure out why the agent went to a bar to download this stuff.

    I think the speculation that he was using some kind cheapass pirating freeware to do it is probably right on point, too. I wonder if that could be relevant to admissibility somehow.

    1. Why was the FBI using freeware? Why couldn’t they have just bought the stuff?

    2. I can’t believe in FBI Special Agent is actually getting paid to do something so useless…OK, I can believe it.

  18. “(using an interactive computer service for the purpose of transmitting obscene material across state lines, and making that material available to minors, respectively)”

    In what form was the “material” when it crossed state lines?

  19. I call bullshit on all of this. They thought that the jury wouldn’t convict on those counts, which would lead to a precedent, so they faked the mess-up. Gov’t is stupid, but it at least looks at the evidence ONCE to make sure it works.

  20. In what form was the “material” when it crossed state lines?

    Interesting. Especially if the material is encrypted. I can see an argument now:

    “Your honor, what crossed state lines wasn’t obscene. It was gibberish. [Show screen of what encrypted message looks like.]

    It did not become material that is even potentially obscene until Officer Friendly here took the affirmative step of converting it, via decryption, into a video file. That conversion occurred entirely intrastate. While this material may have been obscene before encryption in California, and after decryption in DC, at no time did obscene material cross a state line. The only thing that crossed state lines was gibberish. Move for dismissal.”

    1. But all video content, including completely innocuous content, transmitted over the Internet is “gibberish” when in transmission. By that logic, one might say that businesses like the iTunes Store devote their efforts to transmitting billions of items of gibberish every year.

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