Local obscenity lawyer Richard Hertzberg says, "When the state says they don't have to prove intent, they're wrong. They always have to prove intent."
Steve Gendler is a retired DPS major now working as a town marshal in Fountain Hills. He's been a user of the Wish Book since the late Eighties. In all that time, he says, he never got any indication that Shantz intended to keep kiddie porn or other obscene materials on his bulletin board.
"It does seem odd that if he's gonna post illegal items, that he would invite police officers and fellow DPS officers to participate in the board," Gendler observes.
Shantz was indicted under state law, but obscenity-law experts say federal constitutional law applies in this case--specifically, a U.S. Supreme Court decision, Smith v. California, in which it was found that a bookstore owner was not responsible for knowing what was in all of the books he was selling.
The Electronic Frontier Foundation's Godwin says, "Smith v. California says that in order to be prosecuted for the distribution of obscenity, the government has to prove that you knew about the material. . . . I think there are strong similarities between bulletin-board systems and bookstores."
Did Shantz know? He says he never opened the offending files because he was told the CD-ROMs were "bulletin board system ready." And his initial perusal of the files was okay.
Balkan admits that one of the photos mentioned in the indictment--he describes it as a woman holding a horse penis to her mouth--is also on the hard drive of Shantz's computer, which police seized in the raid and returned in January.
That could be proof that Shantz loaded the image onto his hard drive and viewed it there. But Shantz claims he never saw the picture, and has no idea how it got onto his hard drive. It could have been uploaded by a user or the Internet. The person reviewing the files might have missed it.
Balkan isn't eliminating the possibility of evidence tampering. He says, "We do not know what they did to that computer, what they performed, whether they used it or not. I was told verbally that all they did was make a mirror-image back-up. Our inspection of the equipment when it was returned was contrary to that." In any event, it was one file in a million.
The Wish Book reopened January 12, with only two phone lines and no graphics--adult or otherwise. Shantz has plenty of time to tend to the board these days, but he says, "My heart's not in it."
Instead, he focuses on his pending criminal case. It's getting more bizarre every day.
Last Thursday, Maricopa County Superior Court Judge Susan Bolton ordered that the case be presented to a new grand jury. Prosecutor Gail Thackeray had made a big mistake. Shantz had agreed to waive his Fifth Amendment right to silence and testify before the original grand jury that met in March and later indicted him. Even though she had a note to remind herself, Thackeray forgot to call Shantz to the stand. She realized her error after the grand jury had heard all of the other testimony and evidence and had deliberated. The grand jury came back with its sealed decision (an indictment) and learned of Thackeray's mistake; the grand jurors decided they wanted to hear from Shantz and agreed to dismiss their indictment and meet at a later date to hear his testimony.
They did just that, and came back with another indictment.
Shantz and Balkan were not informed of this mishap, so, in effect, Shantz testified before a grand jury that had already indicted him once.
Balkan didn't think that was fair. Neither did Judge Bolton. So now a new grand jury will hear the entire case again.
With all of the mishaps in this case, you'd think the County Attorney's Office would have soured on it. That's not so. In fact, it's stepped up the attack. Thackeray has been replaced as prosecutor by Vince Imbordino, one of the office's top attorneys. After the indictment was dismissed, Balkan gathered in the hallway outside the courtroom with Lorne and Jennifer and a dozen friends whom Lorne has met through the Wish Book. Balkan warned that Shantz will almost certainly be indicted again, but at least this time he will get his opportunity to testify in the proper context.
In his 21-year career as a defense attorney, Balkan says, he has never allowed a client to testify before a grand jury. But Lorne is different, he says. "Lorne's not guilty of a darn thing."
"Amen!" his friends cry. "Hear, hear!
