BARTOW, FL – Webmaster Chris Wilson will spend the remaining days of 2005 and at least the first few months of the new year in jail, thanks to prompt and persistent refusals by Judge J. Dale Durrance to requests for the accused site owner’s release.Arrested on October 7 for 300 misdemeanor counts of possessing and distributing obscene materials and one felony count of wholesale promotion of obscene materials, Wilson was free on bail after family members managed to raises $30,000. However, last Friday his bond was revoked and he was returned to jail for allowing sexually explicit images to be uploaded to his website, which prosecutors insist is in violation of state obscenity laws. According to Chip Thullbery, administrative assistant state attorney, the new content contravened pretrial release agreements regardless of whether or not Wilson knew about or authorized their existence on the site.
Larry Walters, attorney for the 28-year-old former police officer, insists that his client did not intend to violate the conditions of his bond and had the images removed as soon as he learned about their existence and possible implications for release. Further, Walters reports that Wilson was “willing to comply with any legal restriction on his release in the future.” Nonetheless, the court ordered Wilson’s bond not only revoked but withdrawn from possible return, effectively incarcerating the man until the court date, which will not be determined any earlier than a pretrial conference to take place on February 7, 2006.
In addition to requesting Wilson’s immediate release, defense asked that Judge Durrance remove himself from the case since his failing eyesight might prove an obstacle to his ability to clearly see the many still images and video clips accused of obscenity and which will require careful observation and consideration in order to properly apply the complex Miller test. The motion was denied without comment, as was a request for a stay of proceedings so that the defense team could file an emergency writ of prohibition to the appellate court. Additionally rejected as a request for a continuance based on the belief that a maximum 30 minute opportunity to address all issues would be insufficient. Among other issues that the defense contends is a conviction that “numerous preliminary issues” remain undecided regarding the case and that the application of obscenity laws on the material in question is inappropriate until they have been resolved.
Some of the items that Walters would like to see addressed include what community standards will be applied to the case, particularly since Wilson had moved out of Polk County, whether the state – and not the federal government – can regulate obscenity under the Commerce Clause, whether the state can present evidence individually or must present all materials “as a whole,” whether illegal seizure exists in the Wilson case, and whether the First and Fourteenth amendments invalidate the state’s obscenity laws. None of these matters are expected to be addressed until March.
All motions by the defense having been rejected, the hearing focused on matters related to the bond revocation. A witness for the state presented a selection of 30 images, including some taken from sets and none of which included any of the online text associated with them. When Wilson’s attorneys objected to apparent cherry picking of images instead of their submission “as a whole,” as well as their acquisition without a warrant, citing Miragaya v. State as precedent, their objections were, once again, overruled without comment. The majority of photos featured images of homosexual fellatio; semi-erect penises, some of which were displayed through glory holes; and a few heterosexual shots of penetration and masturbation.
Cross examination revealed that there was no evidence that Wilson knew anything about the presence of the images on his site, which is hosted in Amsterdam and contains thousands of photos. Additionally, the state’s witness acknowledged that Wilson had never been told to remove anything from his website. Nevertheless, said witness insisted that Wilson should be held accountable for the uploads and they should be seen as a violation of his bond agreement.
Attempts to call Dr. Randy Fischer, an expert witness prepared to testify about the easy online access to similar images on a multitude of adult websites, as well as the normalcy of the sex acts depicted, as well as the legality of the contested photos, were rejected in spite of the fact that Florida law permits defendants in bond revocation proceedings to have witnesses speak in their defense. A number of defense affidavits were submitted, including one by attorney Jeffrey Douglas, who testified about his more than 20 years of legal experience regarding obscenity cases, the common nature of the images, and the unprecedented nature of the day’s proceedings.
Walters contends that the judge’s decision was a violation of state law, since it is ordered that the court conduct an inquiry into whether the community can be protected from danger by imposition of other, non-incarceration, options exist after bond has been breached. “The Florida Constitution guarantees a right to pretrial release,” Walters explained, “ and, therefore, the standard for denying bond is extremely high and generally reserved only for defendants facing capital or life offenses, or those proved to be physically dangerous.”
In spite of these setbacks, defense anticipates that its Petition for Write of Habeas Corpus and Emergency Application for Stay of Bond Revocation Order will receive “prompt attention by the court, given the substantial constitutional rights at stake, and the patently illegal incarceration of Mr. Wilson.”
Wilson is now in what his attorneys call “protective custody,” due to his previous employment in the law enforcement field. Attempts to address issues of possible physical harm to Wilson while in jail were rejected by the court, which Walters described as having become “visibly irritated by attempts to prevent the client from being immediately remanded to custody.”
