Attorneys representing a Donora woman charged in a written-word obscenity case are asking a federal judge to suppress evidence seized from her home because they lacked probable cause to take it in the first place.
Karen Fletcher was charged in September 2006 of writing allegedly obscene fictional stories -- some depicting the murder, rape and torture of children -- and selling them to a few subscribers on the Internet. (See "Dirty Words," City Paper, May 10, 2007)
Fletcher's attorneys have alleged that the First Amendment protects the stories and that the government is acting like de facto thought police. Prosecutors have tried to keep the First Amendment out of the case: US Attorney Mary Beth Buchanan has said that while writing the stories wasn't a criminal act, disseminating them online for profit was. But at a Jan. 29 hearing, Fletcher's lawyers will be scrolling down the Bill of Rights to the Fourth Amendment, which prohibits unlawful search and seizure.
In the brief requesting the suppression of evidence, her attorneys allege that Fletcher's home shouldn't have been searched unless there was probable cause to think a crime had been committed -- and that no crime could be shown unless a judge decided the material in question was likely to be obscene. And that, the defense argues, didn't happen prior to the search.
Before a magistrate can issue a search warrant, attorney Warner Mariani writes, he or she must conduct a "specific, rigorous probable-cause analysis" to ensure a crime has likely been committed. But Mariani alleges that FBI agent Christopher A. Cantrell never provided sufficient evidence to demonstrate that the materials contained on the Red Rose Web site were "obscene."
Instead, the brief argues, Cantrell merely made "a simple assertion that the content was of a sexual nature," and that the Web site featured "explicit and graphic 'fantasy' stories describing adults raping and sexually abusing children." That claim alone, taken on its face, was insufficient grounds for issuing a search warrant, the brief argues.
And that breach, the defense contends, led to further civil-rights violations. Once law enforcement swooped in, Red Rose "was restrained from further operation ... resulting in loss of First Amendment rights."
Mariani is also trying to throw out statements Fletcher made to law enforcement during an interview in her home on Feb. 11, 2005. Fletcher was not arrested at that time, but her attorneys maintain that since she was under the control of agents, she should have been read her Miranda Rights, which include the well-known "you have the right to remain silent" warning. They also claim agents led her to believe the situation was not a serious one.
FBI agents "never instructed Fletcher that she was not in custody, and free to leave their presence," the brief argues. "To the contrary, in order to compel [her] responses, the Agents lulled [her] into a false sense of security by stating that her Web site was completely legal."
Margaret Philbin, spokesperson for the U.S. Attorney's office, declined comment for this story; prosecutors would respond to the motion in a court filing by Dec. 10, she said.
U.S. District Judge Joy Flowers Conti is also expected to set a trial date during the Jan. 29 hearing. That could mean Pittsburgh will see two high-profile Internet obscenity cases next year: Buchanan has also brought pornography charges against a hardcore film company, Extreme Associates, which also sells its product online.