PITTSBURGH, PA — Five years ago this month, the U.S. Attorney in Pittsburgh, PA, filed obscenity charges against Extreme Associates and its husband-and-wife owners, Robert Zicari and Janet Romano (known in the adult industry as Rob Black and Lizzie Borden).Since then, the case — much like the career of then-U.S. Attorney General John Ashcroft — has disappeared from the radar, consigned to a limbo-like state no one seems able to explain. Prior to this week, there were no entries in the case docket since August 17th 2007. On Monday, after a telephone inquiry from a reporter for the Pittsburgh Post-Gazette, a telephone status conference was added to the schedule for September 17th.
“In a district where the median time from the filing of a criminal charge to its disposition is 10.3 months, having a case outstanding for five years — even a case that’s been appealed — is unusual,” Paula Reed Ward wrote in her report for the Post-Gazette.
Ward and the observers she contacted theorized the Extreme Associates case is a reflection of obscenity prosecutions nationwide: They create splashy headlines initially, but the furor quickly dies. Even the government’s interest seems lackluster for an administration that promised its social-conservative base it would take action against smut peddlers: Although obscenity prosecutions doubled during President George W. Bush’s first term, there were only 125 filings nationwide between 2002 and 2006.
The difference between the Clinton administration and the present one is the way in which obscenity is approached, according to Todd Lochner, a political science professor at Lewis & Clark College in Oregon.
“It’s not so much the number of obscenity cases they bring, but the qualitative nature of what they’re trying to do by bringing them,” Lochner told the Post-Gazette. “The prosecution is trying to set boundaries as to the acceptable realm of adult material.”
The indicted Extreme Associates material stands as a glaring example of the kinds of content to which the feds object: scatological imagery and apparent abuse of women in the form of simulated rape, torture and murder, all combined with explicit sex.
The Extreme case may get moving again now that the court’s attention has been called to the delay by an outsider. (It’s doubtful Zicari and Romano minded it languishing at the back of a prosecutor’s file cabinet.) Already thrown out once by the trial-court judge, it was reinstated in December 2005 on appeal by the prosecution. In June 2006 the defense failed to get the case examined by the U.S. Supreme Court, and it’s now in the midst of a new round of pretrial motions that began in early 2007. The last activity occurred during the summer of 2007, when Judge Gary L. Lancaster — the same judge who ruled the underlying law implied an unconstitutional ban on private possession of obscenity — said he would schedule oral arguments for the pretrial motions.
Zicari, Romano and Extreme face 10 counts including conspiracy and distribution of obscenity both through the mail and online. The charges are based on five videos acquired by undercover postal inspectors.
Zicari, who is proud to be a defiant poster boy for extremity in word and deed, remains unrepentant. He recently said — in typically profanity-laced form — he expects the government to fail in its quest to convict him, no matter how long the pursuit endures.
In 2002 — before the charges were filed — he told PBS’ “Frontline,” “We’ve got tons of stuff they technically could arrest us for. And when [a raid of another adult studio] happened, I put on our website, I made a big speech: ‘I welcome the LAPD to come on down.’ I said, ‘Come and get me, because we won’t go down without a fight. We will fight this. Regardless of the cost, we will fight it.’
“I just can’t see them coming after us, wasting millions of dollars — taxpayer money — to come for a videotape,” he added. “That’s ridiculous.”
Evidently, the feds disagreed, and they took Zicari up on his challenge.
Assistant U.S. Attorney Mary Beth Buchanan, who filed the charges against Extreme, said at the time the case was about “protecting adults, children, morality [and] the order of society.”
As for the long-overdue trial, defense attorney Jennifer Kinsley indicated her team is in no hurry to litigate. Her clients are not in jail, after all. Observers have remarked that after five years, the prosecution’s job becomes more onerous, because evidence can disappear, society changes and witnesses’ memories fade.
In addition, “I’m sure there are political considerations, but I won’t speculate on that,” she told the Post-Gazette.
According to a Duke University law professor, the case can’t “just go away” without some kind of resolution.
“It can’t disappear altogether,” Lisa Griffin told the Post-Gazette. “As long as it’s a pending case, it’s on someone’s radar.”
Even after the ascension of a new federal administration, the Extreme case — and any other similar cases — will need to be tried or dismissed. A Democratic administration could mean a change in focus for the future, though.
“Pursuing the adult entertainment industry has been a priority of this administration,” Kinsley told the Post-Gazette. “Whoever the next president is, we would hope he will spend his resources on other important issues.”
