Legal positioning gets hot and heavy in Staunton porn trial


The trial against the owner and cashier of After Hours Video is the first obscenity case in Staunton in recent memory.
HOOK COVER

After ten months of preparation, and screening 27 potential jurors for a total of ten hours over the course of two days, the obscenity trial against Staunton pornography shop After Hours Video, its owner Rick Krial, and cashier Tinsley Embrey almost ended three minutes into the prosecution's opening statement.

"Mr. Embrey, of his own admission," Staunton Commonwealth's Attorney Ray Robertson told the jury in Staunton Circuit Court, "told the police investigator that Krial had hired him to sell porn and run his Staunton store."

Defense attorney Paul Cambria immediately rose to object and requested to speak with Judge Thomas Wood with the jury out of the courtroom.

"He's now told the jury an alleged statement by [Embrey] not subject to cross-examination," said Cambria. "I move you declare a mistrial."

For 35 minutes, Wood consulted several books of case law and Virginia code, and it looked as though the judge might throw out the whole case on Robertson's technical slip-up. In the felony cases Robertson usually argues, prosecutors are allowed to allege a conspiracy between two defendants without an actual conspiracy charge against either defendant. The legal question hinged on whether Robertson could allege a conspiracy between Krial and Embrey in this misdemeanor trial.

Finally, as the gallery held its collective breath, Wood was ready to rule.

"I'm not going to declare a mistrial," he said, "but I don't know what's going to happen if you don't have the evidence you say you're going to have."

With that, the jury returned–- only to be escorted back into the jury room seven minutes later.

It was that kind of day Wednesday, the second day of the scheduled four-day trial. The jury was only privy to 97 minutes of the first three-and-a-half hours of the trial, as each side pulled out all the stops to gain every last inch on the opposition.

When Robertson wished to introduce photographs police took of the inside of After Hours Video taken October 29, 2007–- two weeks after undercover officers purchased the two DVDs in question–- defense attorney Louis Sirkin asked, "What is the relationship between what the store looked like on the 29th to what it was on the 15th?"

"Are you going to introduce evidence that the store looked different two weeks later?" asked Judge Wood.

When the defense continued to press the point, Wood indicated he'd heard enough.

"We're not talking about Macy's with five floors!" said Wood, his booming baritone pushing its upper register. "If it's an accurate portrayal of what the store looked like on the 15th, I'll allow it!"

Not that the prosecution was immune from Wood's scorn. At one point, Robertson expressed concern that the defense could introduce other, more popular adult movies sold in Staunton as evidence of what's acceptable by community standards, including "Deep Throat, The Devil and Miss Jones, or Debbie Does Dallas." Robertson wished to make an important distinction.

"These movies have got plots!" he protested.

"It's people having sex with each other!" shouted Wood, pounding his fist on the bench. "Don't tell me that these movies aren't the same type of movie!"

For all the unusual legal motions today, the trial is about to get a lot more strange tomorrow. The jury will watch the two DVDs in question–- Sugar Britches and City Girls Extreme Gangbangs–- in their entirety, in open court. However, Staunton Circuit Court is arranged such that the jury faces the rest of the courtroom. So while the rest of the court will be able to hear the explicit sex, only the jury will be able to see it on the projector screen, leaving the gallery to watch the jury watching porn.

The trial resumes at 8:15am Thursday morning.

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3 comments

You might say that jury was just going in and out over and over and over again

While I'm not a consumer of pornography, I generally have no problem with it as long as all adults who are participating are doing so freely.

That having been said, it's reasonable, to me, to ask why any video that depicts oral sex wouldn't be illegal because that particular sex act constitutes a felony in Virginia.

You'd think, given the amount of killings which occur within the City of Staunton, that the courts AND THE COMMONWEALTH ATTORNEY have better things to do than to try and put a porn shop out of business ¢Ã¢â??¬” maybe prosecuting DWIs

I'm embarrassed for my ex-girlfriend, who works as the Juvenile prosecutor for this idiot.

I think that as long as the actual film depicting oral sex was not filmed in Virginia, the law about oral sex would be irrelevant to the legality of the video.

Hey, is the oral sex law gender neutral?