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Bulletin - Suppression Motion Granted in Mike Jones Case
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This Bulletin, our first in over one year, brings some some
wonderful news in the Mike Jones Case and it reflects our first
combined email Bulletin to the xxxlaw.net
and adultinternetlaw.com
subscriber lists. If you are new to our Bulletin list, Welcome.
You can expect to receive about five Bulletins per year as legal
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Mike Jones Decison
I am delighted to report that Circuit Court Judge Sharon Prather
Friday afternoon granted our defense motion to suppress all
evidence obtained and deriving from the search warrant executed
against Mike Jones of L&M Enterprises (and founder of CD
Babes) on October 28, 2000. As you probably know, Mike was
indicted for obscenity and child pornography in 2001. Judge
Prather found that the search warrant violated the First and
Fourth Amendments because it authorized a "general
search" for obscene and underage materials in the home and
studio of Mike Jones, that it lacked particularity that might
direct and limit the officers as to what they were to seize,
that the search itself devolved into a constitutionally
impermissible "general search" (in other words, a
fishing expedition) and that it amounted to an improper prior
restraint on speech without adequate judicial oversight. A copy
of the victorious motion to suppress is available for download
in Acrobat format on the front page of xxxlaw.net.
Feel free to share it and post it on your sites.
She held that Mike's business was an active expressive
enterprise publishing images, video, and web sites to the
Internet, and so the scope and scale of the seizure impeded
onging, presumtively protected expression in a manner that did
violence to the Constitution. She found that the warrant and its
execution amounted to an improper prior restraint of speech in
progress. She cited Fort Wayne Books v. Indiana, Marcus v.
Search Warrant, and the Illinois case of People v. Eagle Books
in a decision that she read from the bench Friday afternoon in
the Woodstock Courthouse. Warrants must constrain the officers
by describing with particularlity what is to be seized, and it
just is not good enough for constitutional purposes to direct an
officer to seize "all obscene materials" as this
warrant did. This is a significant victory for both the right to
privacy and the right to free expression.
We have been involved with this case since the day that the
Warrants were executed and the result today is the culmination
of three years of work: Mike Jones and I were attending the AWE
Show in Chicago on a Saturday afternoon in October, 2000, when
he learned from a cell phone call that deputies were in his
house and forcing entry into his studio to execute the warrant
and that they were questioning his children about sexual
matters. The scope of the intrusion was massive in both the home
and in the studio. The officers seized adult tapes held for
private purposes in two bedrooms, seized the computer that
Mike's then- fourteen year old daughter used for schoolwork,
almost all financial records, and every videotape, cdrom,
floppy, peripheral and computer in sight. That night, Reed and I
went to the studio with Mike and saw it virtually empty, except
for some 3 x 5 photographs, a camera, a tripod, backdrops and
furniture.
It was a long and arduous struggle for him to attempt to rebuild
his business, especially because of the onus that attaches to
anyone accused of crime involving images of children. It is
important to note that no one ever claimed that Mike Jones ever
took the pictures claimed to be child pornography which were the
subject of five counts of the indictment. They were recovered by
a forensic analyist from the deleted contents of an Internet
Explorer cache file and all of the suspect images were
thumbnails created and last accessed with minutes of each other
several months before the warrant issued.
We go back to court in roughly thirty days for status to learn
what the State's intentions are. The State can certify that its
case is materially impeded because of the suppression and file
an appeal to the Illinois Appellate Court, 2d District; It is at
least theoretically possible for the State to proceed to trial
on the Obscenity counts using images it obtained outside and
independently of the search, from Mike's web site; and of course
the State can dismiss the indictment. We expect the indictment
to be dismissed. However, if it is not dismissed, we will
aggressivley, zealously, and resolutely try this case to its
conclusion - defending MIke Jones with all of the skill and
experience at our disposal. We do not believe him to be guilty
of any crime at all, and even had today's motion been denied, we
believe the result of a trial would have been his acquittal on
all of the counts.
It is important to acknowledge the significant, invaluable
contributions made by Reed Lee of my office. Reed collaborated
with me extensively in writing the motion to suppress, he
participated fully (despite a fever on the first day of hearing)
in the three days of hearing, including his examination of the
forensic computer analyst from the Illinois Department of State
Police, and Reed wrote the final, winning Brief.
Some of the important legal lessons about the operation of adult
sites we've learned by first hand observation in this case:
1. The importance of keeping redundant off-premises 2257
records. That you should be prepared at all times for an
inspection or warrant with accurate and up to date records. That
all materials essential to the operation of your site must exist
redundantly in another location because, without this practice,
such a police operation may functionally shut you down.
2. The importance of keeping your business computers free of any
browsing unrelated to the operation of your site, and securing
it from others who might do so in your absence.
3. The importance of keeping business operations out of and away
from your home.
It had been my hope to write a longer Bulletin, dealing with the
Can Spam Act, with Celebrity Sites, and containing my
predictions for 2004, but these will have to wait for the next
Bulletin. I do expect to update xxxlaw.net shortly with new
articles about those topics and others. Since the last Bulletin
was sent out, a great many email address of people I've met at
shows, conventions, and groups have become inactive. Please do
let your associates know about our Bulletin and invite them to
join our list, and freely forward it to others. Finally, do take
a look at our new site, adultinternetlaw.com which contains some
valuable articles written by some preeminent authorities on the
law of the adult internet. (Well, actually it's not a new site,
it's been around for some years, but it is a new site for us.) I
am quite honored by Greg and Rich's decision to sell
adultinternetlaw.com to this firm as they, themselves, left the
practice of adult internet law.
All best wishes,
J. D. Obenberger and Associates - Attorneys and Counselors at
Law - 3700 Three First National Plaza - 70 West Madison Street -
Chicago, IL 60602
Office: 312.558.6420 Cell: 312.405.6420 Pager: 312.426.6420 Fax:
312.558.7773
XXXLaw.net
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XXXLaw.net
AdultInternetLaw.com
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J. D. Obenberger and
Associates
Suite 3700 Three First National Plaza
70 West Madison Street
Chicago, Illinois 60602
Phone 312.558.6420
Fax 312.558.7773
Pager 312.426.6420
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