Post by H. JekyllFound this today on the PACER docket for Frank's case: ----
This really confuses me. Hodge heard the case and ----
==> A search of local (Albany, GA) news sites finds that Richard Hodge
-actually retired as magistrate judge last November, but was recently
-honored by other magistate judges in the region.
==> For folks in this corner of cyberspace, McCoy's case is big. In
Albany Georgia, marijuana busts are much more important. hj
Please advise me so I understand better. I recall McCoy wrote stories,
with sex and little kids. Is that the basis of a criminal case against
him? Or is more involved (like pictures or actions) ?
Here is every thing known about Frank's case and trial.
Posted, I believe, by Baal in another newsgroup several
weeks ago.
If you wish to, you can monitor this, as well. You can sign up for the
federal court system and as long as you don't accrue $5 worth of
charges in a year, it's free. Each "page" is $0.08.
U.S. District Court
Georgia Middle District (Albany)
CRIMINAL DOCKET FOR CASE #: 1:07-cr-00018-WLS-RLH-1
Case title: U.S.A. v. McCoy
Date Filed: 06/13/2007
Assigned to: Judge W. Louis Sands
Referred to: U.S. Mag. Judge Richard L. Hodge
Defendant (1)
Frank Russell McCoy represented by Stephen R. Glassroth
Federal Defenders of the MD GA
Suite 400
440 Martin Luther King, Jr. Blvd.
Macon, GA 31201
478-743-4747
Fax: 478-207-3419
ATTORNEY TO BE NOTICED
Pending Counts
Disposition
18:1462: IMPORT OR TRANSPORT OBSCENE MATTER
(1)
Highest Offense Level (Opening)
Felony
Terminated Counts
Disposition
None
Highest Offense Level (Terminated)
None
Complaints
Disposition
None
Plaintiff
U.S.A. represented by James N. Crane
P.O. Box 366
Albany, GA 31702
229-430-7754
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Date Filed # Docket Text
06/13/2007 1 SEALED INDICTMENT as to Frank Russell McCoy (1) count(s)
1. (jbk, ) (Entered: 06/15/2007)
06/13/2007 2 Indictment signature page (Un-redacted) re: 1 Indictment
(Sealed): as to Frank Russell McCoy. (jbk, ) (Entered: 06/15/2007)
06/13/2007 3 Arrest Warrant Issued at the direction of Judge W. Louis
Sands in case as to Frank Russell McCoy. (jbk, ) (Entered: 06/15/2007)
01/09/2008 Arrest of Frank Russell McCoy in District of Minnesota.
(jbk) (Entered: 01/22/2008)
01/10/2008 4 MOTION to Unseal Case by U.S.A. as to Frank Russell
McCoy.. Motion(s) referred to Richard L. Hodge.(wks) (Entered:
01/10/2008)
01/10/2008 5 ORDER granting 4 Motion to Unseal Case as to Frank
Russell McCoy (1). Ordered by Judge Richard L. Hodge on 1/10/08. (wks)
(Entered: 01/10/2008)
01/16/2008 6 Order appointing the Federal Defender, Inc. to represent
Frank Russell McCoy. Ordered by U.S. Mag. Judge Richard L. Hodge on
1/16/08. (wks) (Entered: 01/16/2008)
01/22/2008 7 Rule 5(c)(3) Documents Received as to Frank Russell
McCoy (jbk) (Entered: 01/22/2008)
01/23/2008 8 NOTICE OF ATTORNEY APPEARANCE: Stephen R. Glassroth
appearing for Frank Russell McCoy (Glassroth, Stephen) (Entered:
01/23/2008)
01/23/2008 9 ORDER directing USMS to purchase defendant a one-way bus
ticket to Anoka, MN and to reimburse defendant per diem as to Frank
Russell McCoy. Ordered by U.S. Mag. Judge Richard L. Hodge on 1/23/08.
(jbk) (Entered: 01/23/2008)
01/23/2008 10 Minute Entry for proceedings held before U.S. Mag.
Judge Richard L. Hodge:ARRAIGNMENT held on 1/23/2008 as to Frank
Russell McCoy (1) Count 1., BOND HEARING as to Frank Russell McCoy
held on 1/23/2008, INITIAL APPEARANCE as to Frank Russell McCoy held
on 1/23/2008 (Court Reporter:Tape Recorded.) (wks) (Entered:
01/23/2008)
01/23/2008 11 STANDARD PRETRIAL ORDER as to Frank Russell McCoy.
Ordered by U.S. Mag. Judge Richard L. Hodge on 1/23/08. (wks)
(Entered: 01/23/2008)
01/23/2008 12 PLEA SHEET as to Frank Russell McCoy (jbk) (Entered:
01/24/2008)
01/23/2008 13 NOTICE of Estimated Sentencing Guidelines as to Frank
Russell McCoy Range of between 33 and 41 months. (jbk) (Entered:
01/24/2008)
01/23/2008 14 Appearance Bond Entered as to Frank Russell McCoy in
amount of $ 25,000 UNSECURED (jbk) (Entered: 01/24/2008)
01/23/2008 15 ORDER Setting Conditions of Release as to Frank Russell
McCoy (1) $25,000 UNSECURED. Ordered by U.S. Mag. Judge Richard L.
Hodge on 1/23/08. (jbk) (Entered: 01/24/2008)
01/29/2008 16 SEALED MOTION by U.S.A. as to Frank Russell McCoy..
Motion(s) referred to Richard L. Hodge.(jbk) (Entered: 01/30/2008)
01/29/2008 17 ORDER granting [16 Sealed Motion as to Frank Russell
McCoy (1). Ordered by U.S. Mag. Judge Richard L. Hodge on 1/29/08.
(jbk) (Entered: 01/30/2008)
01/29/2008 18 Sealed Document by U.S.A. as to Frank Russell McCoy
(Attachments: # Exhibit)(jbk) (Entered: 01/30/2008)
01/29/2008 19 Sealed Document by U.S.A. as to Frank Russell McCoy
(jbk) (Entered: 01/30/2008)
01/30/2008 20 MOTION for Discovery by Frank Russell McCoy.. Motion(s)
referred to Richard L. Hodge.(Glassroth, Stephen) (Entered:
01/30/2008)
01/31/2008 21 Arrest Warrant as to Frank Russell McCoy executed on
01/09/08. (jbk) (Entered: 02/04/2008)
Court hearing obscenity case
"A case involving a Minnesota man charged in federal court with
distributing obscene stories via the Internet has been put on the June
trial calendar, authorities say.
Frank Russell McCoy was indicted in July 2007 and arraigned last
January, court documents show. A second set of court documents first
filed in April 2008 and with the last entry filed Jan. 29, 2008 has
been sealed by the U.S. District Court in Albany, according to the
U.S. Government's court document management service known as PACER.
McCoy, who operates a Web site that provides access to explicit
stories depicting incest and sex with children, was indicted June 13,
2007, with transporting obscene matters, court records show.
The indictment alleges that McCoy knowingly used an interactive
computer service to allow access to "obscene matters" and did aid
users of his site to view the material.
The indictment specifically lists three Web sites where McCoy is
alleged to have posted "'fantasy' stories describing in explicit and
graphic detail the sexual abuse, rape and murder of children.""
(jbk) (Entered: 02/04/2008)
Case No. I :07-CR-18-WLS
The Defendant's Unopposed Motion/or a Continuance of the above-styled
matter to the October 2009 trial term (Doc. 102) having been read and
considered, the Court finds:
1. that the Defendant has moved for this continuance pursuant to
18 U.S.C. § 3161 (h)(8)(B)(ii) -maintaining that this particular
prosecution "is so unusual [and] [] complex, due
to ... the nature of the prosecution, [] [and] the existence of novel
questions of fact or law, that it [] [would be] unreasonable to expect
adequate preparation for. . .the trial itself within the time limit[]
established", which is currently the June 2009 trial term; and,
2. that counsel for the Defendant represents that the government
does not oppose the instant request for a continuance;
THEREFORE, the Court finds that the ends of justice served by the
granting of this continuance outweigh the interests of the public and
the defendant in a speedy trial.
The Court having made the foregoing findings, the Defendant's
Motion for Continuance (Doc. 102) is hereby GRANTED and the matter is
hereby continued to the October 2009 trial term
of the Albany Division of the Middle District of Georgia.
IT IS FURTHER ORDERED that the time period occasioned by this
continuance is excluded
from the calculations of time contemplated by the Speedy Trial Act, 18
U.S.c. § 3161, et seq.
So ORDERED this 3rd day of April, 2009.
W. Louis Sands
United States District Judge
?
http://pacer.psc.uscourts.gov/
http://query.nytimes.com/gst/fullpage.html?res=9B06E0DB1E3EF93BA1575AC0A9619C8B63&sec=&spon=&pagewanted=all
5/3/2010 Baal wrote:
Within the last week or so, someone posted an message containing some new
information on Frank's case/status. This poster claimed that the trial was
over, and no verdict was expected any time soon. (This is a paraphrase...I
cannot now find the original message so I may have garbled it somewhat.)
Here is what I have been able to find out:
Frank waived his right to a jury trial; in this particular instance, that
was probably a very wise move.
Frank's trial was apparently held over two days: January 12 -13th, 2010.
The following document is the "Defendant's Closing Argument" as submitted
by Frank's counsel. I must admit to being surprised both as to the vigour
of the defence raised by Frank's counsel, but also as to the weakness of
the prosecution's case.
Any emphases (bold, italics, etc.) are as in the original document, with
the sole exception of the Id. references.
Baal <***@Usenet.org>
PGP Key: http://wwwkeys.pgp.net:11371/pks/lookup?op=get&search=0x1E92C0E8
PGP Key Fingerprint: 40E4 E9BB D084 22D5 3DE9 66B8 08E3 638C 1E92 C0E8
Retired Lecturer, Encryption and Data Security, Pedo U, Usenet Campus
- --
Sed quis custodiet ipsos Custodes?" -- "Who will watch the Watchmen?"
-- Juvenal, Satires, VI, 347. circa 128 AD
"If you read the same things as others and say the same things they say,
then you're perceived as intelligent. I'm a bit more independent and
radical and consider intelligence the ability to think about matters on
your own and ask a lot of skeptical questions to get at the real truth,
not just what you're told it is."
-- iWoz - Steve Wozniak 2006
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
UNITED STATES OF AMERICA
v.
Case No. 1:07-CR-18-WLS
FRANK RUSSELL MCCOY
DEFENDANT'S CLOSING ARGUMENT
Mr. McCoy should be acquitted, not only because the
government did not satisfy its burden of /proving/ that his
writings are legally obscene, but also because the Defendant
/disproved/ the bare allegation that his writings are legally
obscene. Shortly before trial, Mr. McCoy stipulated to all
elements of the charged offense, except for the notion that
his writings are legally obscene. (Doc. 143). His stipulations
were thereafter formally accepted by the government the day
before trial, and the Parties then re-entered the stipulations
jointly (Docs. 145 and 146). This left only a single issue
to be proven at trial. The issue was, therefore, whether or
not the government could prove, beyond a reasonable doubt,
that Mr. McCoy's writings fit the legal definition of
"obscenity" under the standard announced by the Court in
/Miller/ /v./ /California/, 413 U.S. 15 (1973).
Ironically, the government's evidentiary presentation at
trial consisted exclusively of evidentiary support for /only/
the elements of the offense to which Mr. McCoy had already
stipulated. In the end, the government introduced absolutely no
evidence (other than the stories themselves) on which this Court
could base a determination of any of the prongs of the /Miller/
obscenity test. The government did not introduce any evidence as
to the particulars of any applicable "community" or "decency"
standards, against which this Court could gauge the works'
relative offensiveness, nor did
1
the government introduce _any_ evidence as to what does or does
not constitute "literary value", against which this Court could
gauge the relative literary value of these stories. If all the
cumulative evidence introduced by the government in this case
were stripped away (all of which was covered by the Parties'
stipulations anyway), the government's case-in-chief consists of
nothing more than introducing the stories into the record, and
having Agent Brant read a short fraction of a single story aloud.
In light of such a bleak evidentiary record, in a criminal case
nonetheless, on what basis would the government have this Court
conclude that these fictional stories are lacking in "serious
literary value"?1
Following the government's failure to meet its burden as
to the only issue in dispute at trial, Mr. McCoy moved for a
judgment of acquittal pursuant to Fed. R. Crim. P. 29. Following
which, the Court decided that the motion shall be carried with
the case. Mr. McCoy's motion argued, /inter/ /alia/, that since the
government had failed to offer any evidence, let alone prove,
that his writings lack serious literary value; that if it were to
become incumbent on the Defendant to /disprove/ /the/ /notion/, that
the presumption of innocence will have been cast aside in this
case, and an impermissible shifting of the burden of proof in a
criminal case will have been effected. Nevertheless, Mr. McCoy's
case-in-chief aptly carried the shifted burden; and, in the end,
the Defendant successfully /disproved/
-------------
1 The government appears to maintain that literary
analysis and criticism is not a learned profession -- a patent
absurdity. (See Trial Transcript at 153, wherein government
counsel notes that literary analysis does not require an
expert, unlike the inquiry as to "how an atom is put together";
and Government's Closing Argument, Doc. 159 at 18, where the
government maintains that Professor "Richardson's opinion of
the defendant's stories is entirely based upon his subjective
view of how he and "people who study literature" might view
the defendant's stories... [which somehow makes his opinion]
irrelevant to and inconsistent with the determination the Court
must make regarding how a reasonable person would assign value
to these stories." Thus, the government appears to characterize
"reasonable people" and "those who study literature" in mutually
exclusive categories!
2
what the government had /failed/ /to/ /prove/ in its case-in-chief;
namely, the allegation that these writings lack /serious/ literary
value. Indeed, the government's own closing argument highlights
the fact that it offered no evidence whatsoever as to the only
issue at trial by noting that "it is plain that they [Mr.
McCoy's writings] lack serious literary, artistic, political, or
scientific value, in light of the material as a whole." (Doc. 159
at 13). Mr. McCoy maintains that there is nothing "plain" about
it at all -- if that were the case, the study of literature, and
the humanities in general, would be superfluous.
During his case-in-chief, the Defendant introduced the
testimony of Professor Gary Richardson. (See Trial Transcript,
Day-1, pp. 167 - 190; and Day-2, pp. 1 - 62). Professor
Richardson, a 26-year veteran Professor and Chairman of
the Department of English at Mercer University, has had a
distinguished career including numerous post-doctoral fellowships
at prestigious institutions, a Fulbright Scholarship, membership
in numerous honor societies, as well as numerous scholarly
publications in peer-reviewed journals and anthologies. (Trial
Transcript, Day-1, pp. 167 - 170). The Professor's substantive
direct-examination testimony began by explaining the difference
between "literary" and other forms of writing as, "[with regards
to literary writing] we are more often than not talking about
imaginative writing, which can be either narrative or lyric,
[and] which is meant to be shared between an author and an
audience." (Id. at 171). The Professor then explained some of
the many ways in which "value" can be ascribed to literature as
follows: (1) experimentation as to form might constitute value in
a work, (2) the use of language might manifest value in a work;
or, (3) the ability to draw on the human experience in a way that
would be enlightening or insightful to its audience. (Id. at 173 -
174).
3
When asked whether "literary value" can be objectively,
or universally, determined, the Professor answered that it
can; and that notwithstanding each of our personal biases and
prejudices, whether we do or do not enjoy a particular piece
of literature, is quite independent from its relative literary
value. (Id. at 176 -- 177). Thus, the Professor explained that
if work manifests the above-discussed literary characteristics,
then it probably has a degree of value, and that degree could
be measured by gauging /how/ /well/ the writer accomplishes what
he wishes to accomplish. (Id.). The Professor was then asked
to describe the methodology by which he analyzed Mr. McCoy's
works. His response was that he employed an analytical technique
called "close-reading", which he explained to mean that rather
than merely read works for their plot, the Professor looked
at the way in which Mr. McCoy's works deployed language;
intertextuality (the reexamination of and reworking of older
existing narratives); elements of parody and spoof; the use
of folk tale traditions; the use of conventions associated
with science fiction or with fantasy as a way of presenting a
particular narrative; as well as the use of structural devices
in the presentation of serial narratives. (Id. at 177 -- 178).
The Professor further described the "close reading" analytical
technique as a careful reading of a text, looking beyond the
simple plot line, with a particular regard to the use and
employment of all literary devices and narrative strategies.
(Id. at 177 -- 179).
Dr. Richardson's direct-testimony went on to relate that
he had in fact read all 240 stories charged (as a single count)
in this case; that he had performed a "close reading" analysis
of each one; and that he had arrived at an informed opinion, of
which he was reasonably certain, as to the relative literary
value of the body of work as a whole. (Id. at 179 -- 180). The
Professor then expressed his conclusion to the effect that this
work manifested a serious literary effort, and a significant
amount of literary value. (Id. at 180 -- 181). When the Professor
was then asked /why/ it is his opinion that Mr. that Mr.
4
McCoy's work manifests a serious and worthy literary effort,
and is consequentially imbued with serious literary value, the
Professor responded that when the 240 stories are read, along
with their prologues and epilogues, the unmistakable impression
is that the author is "attempting to undertake an artistic
rendering". (Id. at 184).
The Professor was then asked to describe some literary
devices, constructs, and mechanisms that are routinely employed
in this body of work. In response to which, Dr. Richardson
related, by way of example, that these writings employ a
particular element of spoof and satirical literature, called
"reader entrapment", that was most notably used by Jonathan
Swift in the 18th Century (Id. at 184 - 186). By way of further
example, the Professor testified that these writings also
incorporate a technique called the "interpolated tale", which
is the introduction of a separate narrative within the midst of
a broader narrative in an attempt to provide background or to
explain a current situation or the psychology of a particular
people. (Id. at 187). When asked how Mr. McCoy's writings
manifest intertextuality, the Professor noted that the Defendant
uses anything from Abbott and Costello to Grimm's Fairytales
to Victorian (literary) erotica as touchstones, and "we see a
kind of dialogue going on within the work as he uses devices and
mechanisms and transforms and reconfigures these devices in ways
that knowledgeable readers would find interesting and satisfying
as an artistic effort." (Id. at 187).
As to the author's use of language and his variations on
the use of language, the Professor noted that Mr. McCoy is
"quite good at attempting to maintain an appropriate voice
and a language for particular characters... and [that] his
descriptions... are quite energetic. (Id. at 187 - 188).
Regarding variations on the narrative point-of-view, the
Professor testified that "[w]hereas most
5
pornography is generally considered to reflect a male narrative,
a male visual gaze... [Mr. McCoy's writings reflect] points of
view [that] were all over the map... [sometimes] women and even
some of the children in these stories [were employed] as the
central consciousness[,] so that we are really getting the story
from their point of view (Id. at 188). Discussing the author's
choice of subject matter, the Professor testified that the child
characters in many of these stories appear to have "manifest[ed]
what Carl Jung would have called an "Electra Complex" in which
they have transferred their emotional affection to their father[]
in an attempt to, in some instances, supplant their mothers and
become their father's lover." (Id. at 188 -- 189).
By way of further explanation for the basis for his
conclusion that these 240 stories, taken as a whole, do have
serious literary value, the Professor explained that:
"the variety of approaches, despite the general focus
on one or two standard plots, suggests an attempt to
bring to bear literary devices, mechanisms, [and] forms
in such a way as to make a serious effort at speaking
to the topics in a way that reflects serious thought
and serious artistry... [s]o does it have serious
intent? Yes, it does. Is the matter that it concerns or
addresses serious? Yes, it is. And therefore, it has
serious value from the perspective of those of us who
study literature." (Trial Transcript, Day-2, pp. 4 - 5).
The Professor then testified about the entirety of the story
"Rapesuzy", a fragment of which was read into the record by
Agent Brant; in doing so, the Professor noted that: "[i]n this
case, sex is both degenerate, which [it] is not in P.D. James'
work ["Children of Men"], and murderous[,] and [yet it is also]
ultimately generative, which is an intriguing concept." (Id. at 5
- 7) (see also id. at 55 -- 57). The Professor was then asked if
disturbing subject matter can, alone, deprive a work of "serious
literary value" -- Dr. Richardson noted that "I have become, and
most of my colleagues in literary [studies], have become wary of
saying that because of a particular kind of presentation, a piece
of
6
literarute -- a work could be deemed nonliterary because of
the existence of material that's troubling to any of our
sensibilities or moral compasses, for that matter."
(Id. at 7 - 8).
Next, the Professor was asked about the 18 hand-picked
stories to which the government has attempted to reduce this
case. The Professor testified that he was familiar with that
particular sub-set, and that the selection appeared to be of
primarily shorter length pieces, through which it is more
difficult to gauge literary value than the longer pieces because
"narrative operates primarily through character development, in
our increasing awareness of the complexity of motivation and
psychology within characters... [and] every time you chose a very
short piece as a selection it becomes increasingly difficult to
see that." (Id. at 8 -- 9). Nonetheless, the Professor noted that
even these 18 shorter pieces manifest interesting literary and
artistic characteristics in that "[m]ost of them operate on an
interesting principle of inversion, usually of expectations among
the readers or the characters themselves... " (Id. at 10 - 11).
Regarding the manifestations of the mechanisms of parody
and spoof, demonstrated in this body of work as a whole, the
Professor testified that Mr. McCoy's writings display frequent
use of "some recognizable literary form... and will parody that
and will spoof the very form of that work... he also tends to
pull his readers into his stories and establish certain kinds
of expectations... only to invert those and thereby parody the
expectations of the audience, thinking that they know what is
going to happen, when, in fact, they don't." (Id. at 11 - 12).
The Professor further testified in this regard that this class
of inversion-parody and spoof was popular in Seventeenth and
Eighteenth Century English literature. (Id. at 12 -- 13). The
Professor was then asked about the different ways in which an
author may deliver a narrative and how those methods were
employed
7
by Mr. McCoy. The Professor testified that this body of work
"utilizes numerous points of view", and that it "also uses
numerous forms... [such as] science fiction, he [also] uses folk
tales, he [also] utilizes rather traditional romance formulas
with very different kinds of characters involved." (Id. at 16 -
17). Dr. Richardson also testified that some of these stories
even employ experimental narrative strategies, such as developing
a narrative entirely through dialogue (with no narrator's voice
at all). (Id. at 17).
As to the thematic explorations undertaken by this body of
work, the Professor testified that his analysis focused on "three
interrelated themes and then a kind of political thematic." (Id.
at 17 -18). Those were "the nature of love"; "the difference
between love and sexuality"; the "nature of sexuality"; and "the
ways in which society in some senses helps us construct and
indeed occasionally coerces us to relate sexually to the rest
of the world and those around us." (Id. at 18). The Professor
also noted that there is a pervasive political theme to Mr.
Mcoy's body of work, noting that "I would make the observation
that there's a political theme here that our culture has become
increasingly more repressive in terms of sexual mores over the
last at least 40 years, and Mr. McCoy's stories seem to insist
that that conversation needs to be reopened with some degree of
seriousness, and these stories seem to be a way to insist upon
that." (Id. at 18). At which point, the Professor's direct-
examination testimony ended with him reiterating his conclusion
that this body of work, all 240 stories, taken as a whole -- and
viewed with regards to narrative strategies and narrative devices
employed, various thematic explorations, and the use of language
-- "*does* *have* *serious* *literary* *value*." (Id. at 18 - 19)
(emphasis supplied).
8
The Professor's cross-examination testimony reiterated his
conclusion that "people who study literature would find his
[Mr. McCoy's] stories to have serious literary value." (Id. at
25). Also on cross-examination, when government counsel tried
to distinguish between performing a "close reading" of a work,
and analyzing a work "as a whole" -- the Professor dispelled any
notion of inconsistency between the two terms by noting that
close reading "is a technique of reading stories that can be
deployed in the totality of a work." (Id. at 43 -- 44). Still
on cross-examination, government counsel asked the Professor to
name a similar piece of literature that does not have serious
literary value; to which the Professor responded that this kind
of material is not part of his recreational reading or within
the purview of his normal teaching -- however, if he were to go
to an adult bookstore, he could surely find a similar work that
would not be imbued with serious literary value. (Id. at 51 --
51). The Professor, when pressed further on naming something
similar but without "serious literary value", noted that there
are certain passages in the Marquis de Sade's work that do not
have serious literary value -- however, Dr. Richardson again
reiterated his finding that all of Mr. McCoy's works at the heart
of this case do have serious literary value. (Id. at 52 -- 53).
Lastly, on re-direct examination, the Professor confirmed that
he had applied the "close reading"analytical technique to the
entirety of each and every one of the 240 stories at the heart of
this case. (Id. at 59).
Therefore, Mr. McCoy's case-in-chief thoroughly /disproved/
the government's /unproven/ allegation that his writings lack
serious literary value. Neither did the government offer any
evidence (either in its case-in-chief, or as rebuttal evidence)
that in any way detracts from the substance of Dr. Richardson's
testimony; nor did the government's cross-examination
undercut any of the Professor's direct-examination testimony.
Nevertheless, the government's closing argument advances a number
of surprising assertions that invite the Defendant's response.
9
The government's closing argument relates that "[n]othing
in the defendant's description[s] of his work or its genesis
suggest[s] that he intended the stories to be perceived as having
serious literary, artistic, political or scientific value."
(Government's Closing Argument, Doc. 159 at 14) (emphasis in
original). This statement was made by the government in an
attempt to justify its statement that Professor Richardson's
opinions are "either not relevant or simply not credible".
(Id. at 13 - 14). Obviously, it is not a necessary element
of "literary value" that an author's prologues or epilogues
"suggest" that he "intended" the fiction to be perceived as
having literary value. The value of a work is independent of any
"intent" that may be "suggested" by something that is, or isn't,
part of a prologue.
The government, while resting on the naked and unfounded
assertion that "it is *plain* that they [Mr. McCoy's writings] lack
serious literary... value, in light of the material as a whole"
(id. at 13), complains that:
"[Professor] Richardson's testimony regarding literary
quality and societal acceptance and relative political
and literary value of the defendant's stories further
lacks relevance to the ultimate determination this
Court must make _because_it_is_predicated_on_his_points_
_of_reference_ to Marxist literature in the 1930s,
feminist literature in the 1970s, African-American
literature 50 years ago, and the distant "prosecutions"
of Henry Miller, James Joyce, and DH Lawrence . . . This
historical literature is not only too remote in time to
be relevant in this trial (with respect to the first
two prongs of the obscenity test), it is so different
in kind that _it_lacks_a_credible_basis_for_comparison_
_drawing_ or ascribing political or literary value to the
defendant's stories."
(Id. at 17) (emphases supplied)
10
This particular statement by the government not only defies
logic, but constitutes a serious misrepresentation of the
record.2 Professor Richardson's opinion as to /why/ Mr. McCoy's
stories manifest serious literary value (described in ample
detail /supra/) _was_not_ predicated on points of reference to
literature that "is so different in kind that it lacks a credible
basis for comparison drawing." During that portion of the
Professor's direct-examination testimony, the following exchange
took place:
DEFENSE COUNSEL: I see. Professor, to shift topics
here for a moment, what are the various methods []
professional[s] such as yourself use to analyze
literature?
PROFESSOR RICHARDSON: Well, of course, like lawyers
have become conversant with the rules and methodologies
of analyzing a statute, for example, those of us who
spend our lives reading literature become conversant
with the deployment of certain literary characteristics
within pieces of literature. We, therefore, recognize
them when we see them. We spend a great deal of time
thinking about ways in which literature might be valued.
I said, a few moments ago, politics. Politics is a very
broad topic and comes from, you know, a great number of
perspectives. For example, a classic Marxist in the '30s
would look at representation of the struggles of the
working class as being valuable, having persuasive cultural
value. A feminist in the '70s would look at a work, even
a classic work, that made vivid for its audience the
nature, the difference of women's experience from male
experience. The very existence of the African-American
Canon today reflects a steady work for the past 50 years
by people who have suggested that literature written by
African-Americans provides access to an element of
American experience that is otherwise unavailable and,
sadly to say, was for many years was not accepted as
literature. Of course, there's certain activities that
the classic instances of Henry Miller and James Joyce
and DH Lawrence, all of whom were at one point prosecuted
for obscenity, suggest that -- particularly in those three
instances -- that sexual material may be in some senses
too cutting edge for the contemporary audience, but
--------------
2 This is not the only incorrect characterization of the record
effected by the government in this case. The government, since
the outset of this case, in almost every pleading, and repeatedly
throughout the trial of this case (see e.g., Trial Transcript,
Day-1, pp. 32, 36, 46) refers to the plot-lines of Mr. McCoy's
fictional writings as involving, /inter/ /alia/, murders
of children. This, more than anything, proves that neither
government counsel, nor its agents, have ever actually read
through this body of work. Mr. McCoy maintains that murder is not
an element in any of his plot-lines, and when the Court conducts
its own review of this body of work that will be borne out.
11
will subsequently be recognized as extremely valuable as
long as the literary quality is sufficient to make that
experience available to the audience. (Trial Transcript,
Day-1, at pp. 175 - 176).
Thus, the Professor was only being asked what are some of the
various methods for analyzing literature, which he explained
as an evolving discipline. The Professor was noting the fact
that those who study literature become "conversant with the
deployment of certain literary characteristics". Further, the
Professor offered a number of examples such as the suggestions
that "literature written by African-Americans [is now viewed
to] provide[] access to an element of [the] American experience
that... sadly to say, was for many years was not accepted as
literature".
The government also maintains that "[Professor]
Richardson made several statements on cross examination that
belie the credibility of his opinion regarding the seriousness
of the defendant's use of literary devices in his stories."
(Doc. 159 at 18). In support of this assertion, the government
notes that the Professor "testified that he would not list the
act of testifying in this case as part of his professional
credentials, even though it is common for expert witnesses to
note trial experience on their resumes." (Id.). This assertion is
problematic on several grounds: (1) the Professor is a 26-year
veteran professor and noted scholar of English and American
literature, and compared with the rest of his curriculum vita,
the act of testifying in a criminal case (uncommon for English
professors) is manifestly insignificant, and therefore has
absolutely no bearing on the credibility of his opinion; (2) the
government's bare assertion that "it is common for expert trial
witnesses to note trial experience on their resumes" neither
establishes that "commonality" as a fact, nor connects it to
the credibility of the Professor's opinions. By way of further
"support" for the government's attack on the credibility of the
Professor's opinion, the government notes that the
12
Professor "testified that he has no knowledge whether the
defendant's stories have been published or sold in a reputable
book store... " (Id. at 19). The Professor's knowledge, or lack
thereof, about the circulation of these stories in bookstores
(reputable or otherwise) has absolutely no bearing on the
credibility of his professional opinion as to the relative
literary merit of those works. The government also raised the
notion Mr. McCoy's work had not been "peer-reviewed". (Id.).
This assertion is also problematic on a number of grounds:
(1) whether or not Mr. McCoy's stories had been the subject
of "peer-review" has no bearing on the credibility of Dr.
Richardson's professional opinion as to their relative literary
value; (2) "peer-review" is a mechanism by which scientific
findings and other scholarly (non-fiction) writing is subjected
to scrutiny by a particular segment of the scholastic community;
(3) the government should be reminded that it *arrested* *and*
*indicted* Mr. McCoy for allowing others to read his stories, in
light of which it seems disingenuous to complain about the work
not having been subjected to /enough/ peer-review.
Having satisfied itself with its attacks on the
"credibility" of the Professor's opinion, the government's
closing argument returns to its foundational position,
proclaiming that the Professor's opinion "is not necessary for
the Court to determine whether the defendant's stories have
serious literary... value" (Id. at 19). What the government
failed to do in this case was to provide the Court with *any*
basis on which a determination as to lack of serious literary
value might be based. It is, therefore, the prosecutor's _opinion_
that these stories are /obviously/ without literary value, which
in a manner asks for a conviction based on nothing more than
government counsel's opinion.
But on an occasion of this serious and dangerous complexion,
when an American citizen is brought before a court of justice for
having ventured to do nothing more than to narrate some
13
fictional tales of his own invention, Mr. McCoy prays that more
would be required by way of proof of lack of literary value than
the unfounded expression of the prosecutor's opinion. Mr. McCoy
therefore asks that this Court not suffer so dreadful an example
to go abroad into the world as the ruin of an upright man founded
on nothing more than the prosecutor's uninformed opinion to the
effect that "it is plain that they [Mr. McCoy's writings] lack
serious literary... value" (Doc. 150 at 13).
Dated: This 3rd day of February, 2010.
Respectfully submitted,
Cynthia W. Roseberry - Executive Director
Federal Defender Program - Middle District of Georgia
By:
/s/ Morad Fakhimi
MORAD FAKHIMI
PA Bar ID. 204228 - DC Bar ID. 974050
Federal Defender Program - Middle District of Georgia
440 Martin Luther King, Jr. Boulevard, Suite 400
Macon, Georgia 31201
Tel: (478) 743-4747 - Fax: (478) 207-3419
14
CERTIFICATE OF SERVICE
I, Morad Fakhimi, hereby certify that on February 3, 2010, I
electronically filed the foregoing with the Clerk of Court using
the CM/ECF system which will send notification of such to all
counsel of record.
/s/ Morad Fakhimi
MORAD FAKHIMI
FEDERAL DEFENDERS OF THE
MIDDLE DISTRICT OF GEORGIA, INC.
440 Martin Luther King, Jr. Blvd.
Suite 400
Post Office Box 996
Macon, Georgia 31202-0996
Phone: (478) 743-4747
Fax: (478) 207-3419
***@fd.org
PA Bar ID. 204228
DC Bar ID. 974050
15
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