By Chris Roberts
By Joe Eskenazi
By Albert Samaha
By Mike Billings
By Rachel Swan
By Erin Sherbert
By Joe Eskenazi
By Albert Samaha
As the bust proceeded, Thomas phoned Keith Henson, the San Jose computer consultant and occasional Internet columnist on the subject of electronic communications privacy. Henson knew Thomas from a 1992 incident in which San Jose police confiscated Thomas' bulletin board, believing it to contain kiddie porn. After reviewing the system, no child pornography was found and Thomas was never charged by police. But now, thanks to Dirmeyer's diligence, the AABBS was being cased by the feds, with a postal inspector from 2,125 miles away leading the investigation.
"I wasn't surprised to hear he was being busted," says Henson. "Robert attracts trouble the way shit attracts flies. Part of it is his personality, and part of it is the type of business he's in. He passed the phone over to Dirmeyer and I told him that if he read any of the e-mail on Robert's system, he'd be violating the Electronic Communications Privacy Act." (The act accords e-mail the same privacy protection as surface mail.)
Thomas alleged in court that Dirmeyer, on his way out the door, shook his finger and warned, "When you get your board back, Robert, if you ever tell your members or warn them about Lance White, I'm going to make it worse for you."
Thomas could only stand and watch as officers carted off his huge investment in computer equipment. At this point, it's hard not to feel a little sorry for Robert Thomas -- but not for very long. Minutes after Dirmeyer left, Thomas phoned the local Mail Boxes Etc. outlet and unleashed a torrent of obscenities at Mrs. Thomas Pennybacker, co-manager of the franchise, for cooperating with authorities.
The Thomas' problems, however, were just beginning. The only thing standing between them and a child-pornography sentence was a jury of 12 God-fearing citizens from Memphis, Tennessee.
"I told Robert there was no way we were going to win a jury trial in Memphis," recalls Richard Williams. "I told him you'll win in front of a court of appeals if you win at all."
If Williams and his clients hoped to have any chance of winning the case, they certainly started off on the wrong foot. Their luggage was lost at the airport, and all three arrived late for their July 18 court appearance, still wearing casual clothes. U.S. District Court Judge Julia Gibbons was not amused.
"I'm not going to make you start picking a jury in your jeans and tennis shoes and knit shirt," Judge Gibbons told Williams. However, I don't like your excuses very much. I think they are poor ones."
Jury selection lasted more than a day, with prospective jurors quizzed extensively about their familiarity with computers and their views on pornography and obscenity. Only four prospective jurors had computers at home, and none of them owned a modem or any communications software, a pre-requisite for understanding the concept of a virtual community. One of the four "wired" jurors might just as well have used his computer as a decorative planter, as this jury selection exchange makes clear:
The Court: Do you have a computer at home?
Prospective Juror Jones: Yes.
The Court: Do you have a modem for that computer?
Jones: Judge, I do not work on the computer. I don't know what is on the computer.
The Court: Who in the family uses the computer?
Jones: My daughter and my wife.
The Court: What do they use it for?
Jones: Good question.
The Court: You really don't know?
Jones: I really don't know.
It was obvious any defense argument that communication in cyberspace should be judged by different standards would fall on deaf ears -- none of the jurors had ever even been online. This would not have been a problem had the Thomases succeeded in having their trial moved to San Francisco or San Jose, as they had petitioned. But in Memphis, they were saddled with a jury that was decidedly analog. Lest readers jump to the conclusion that Tennesseans are a bunch of gap-toothed, moonshine-swilling hillbillies, it should be noted: They don't think much of Californians, either:
Defense Attorney Williams: I think it's also important to let [the jury] know that my clients are from the San Francisco Bay Area, which is very different ....
The Court: Yes, I suppose it is conceivable that we might encounter a juror who suffers from California bias or San Francisco bias.
Opening statements began on July 19, with Assistant U.S. Attorney Dan Newsom laying out the 11 federal charges facing Robert and Carleen Thomas: six counts of interstate transportation of obscene material (singling out six of the lewdest GIFs downloaded by Dirmeyer), three counts of using a common carrier to transport obscene material interstate (six of the bawdiest videotapes mailed to Dirmeyer), one count of criminal conspiracy (charging that the Thomas' bulletin board was an ongoing criminal venture) and one count of causing the transportation of a visual depiction of a minor engaging in sexually explicit conduct (the kiddie-porn charge stemming from Dirmeyer's investigation). Even though Carleen Thomas did not take as significant a role in operating the bulletin board, she was indicted on 10 of the 11 charges faced by her husband, with Robert Thomas alone facing the kiddie-porn charge.