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Robert Thomas' testimony fell even flatter, his brusque manner and abrasive personality hardly endearing him to a jury that was sitting in judgment of him. Thomas' basic defense was that he was giving his members what they wanted, and no one had complained about anything until now. The defense argued that the Thomas' bulletin board was private communication between consenting adults who knew what material they were getting. Only five AABBS members were from Tennessee, and none of them from Memphis, the jurisdiction prosecuting them. Thomas sharply denied he had anything to do with child pornography, testifying that he routinely patrolled the bulletin board for possible infractions of the law.
"I go through [the system] on a daily basis, and if I see anything relating to illegal material, I will contact that person, and we will give him a refund and delete them instantly, or possibly call the police," Thomas told the court. "I have done that before."
Thomas claimed he didn't recall the online communications with Lance White, but even if they did take place, he maintained he wasn't soliciting child pornography. As defenses go, I am not a child pornographer, honest, is not one that arouses much sympathy among jurors.
In closing arguments, defense attorney Williams tried to convince the judge that the Miller v. California "local community" guidelines weren't appropriate for a case involving cyberspace. But the judge wasn't buying it. In her instructions to the jurors, Judge Gibbons laid out the standard three-pronged test for obscenity established by Miller: Material is deemed to be obscene if the average person, applying contemporary local community standards, finds that it appeals to the prurient interest; if it depicts in a patently offensive way sexual conduct specifically defined by the applicable state law; and if the work, taken as a whole, lacks serious literary, artistic, political or scientific value. As long as the issue was whether Memphis jurors thought the material was obscene by their own community standards -- not whether their community had the right to impose standards on a nationwide bulletin board -- the Thomases were sunk. For the couple to skate on all the charges, it would have taken at least one juror to stand up and say, "You know, maybe it's just me, but I don't find two dozen steel needles inserted into a screaming woman's vagina patently offensive."
On July 28, the jury returned with their verdict: Robert and Carleen Thomas were guilty of all 10 obscenity charges lodged against them. Robert Thomas was sentenced to 37 months in prison and his wife, 30 months. Both must serve at least 85 percent of their sentence. But Robert Thomas did receive one bit of good news -- in a unanimous decision, the jury found him not guilty of the child-pornography charge, which might have put him behind bars for more than a decade.
While Robert Thomas marks his days as federal inmate #89622-011 in a Missouri prison, and his wife begins her sentence in July, the couple's case is on appeal.
"We're hoping for the best, but expecting the worst," says Carleen Thomas. (Her husband could not be interviewed for this story because he cannot receive calls and is barred from placing collect ones.)
The couple's bulletin board is still up and running, "but it's a day-to-day thing," says Carleen Thomas. Although AABBS isn't currently accepting new members, its old users can still connect at (408) 263-3393. Besides billing itself "The nastiest place on earth!" the AABBS welcome screen now also boasts, "The BBS you have learned to love!" and inexplicably, "The Information Super Highway!"
The Thomas' appeal, handled by attorney Thomas Nolan, contends, among other things, that the Tennessee court lacked jurisdiction to try the Thomases, and that the couple received ineffective representation from their first lawyer, Richard Williams.
"The Thomases were not well served at all [by Williams]," says Nolan. "You need to win in front of a jury. I would have found out how they defend obscenity cases in Memphis, Tennessee. I wouldn't have flown in the morning of the trial -- late. And I wouldn't represent two people who are in different (legal) positions."
"Nolan's decided the only way to get a new trial is to slam me," counters Williams. "He can't even look me in the eye when I pass him in the hall."
Meanwhile, the Thomases face even deeper trouble. A Salt Lake City court has indicted the couple on child-pornography charges, entering as evidence some of the same GIFs that Postal Inspector Dirmeyer testified were not kiddie porn. The Thomases plan to file a motion to dismiss the charges, claiming double jeopardy. But if that is rejected, the case will go to trial on April 5. If that happens, it's hard to see how a Mormon jury in Utah will find the material any less offensive than a Baptist jury in Tennessee did.
Legal and computer experts are left to debate the significance of the Thomas' case for freedom of expression on computer networks: Some believe that there needs to be a new obscenity standard for cyberspace, one based on the virtual community of the Net, rather than the geographic community cited by Miller v. California.