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Lion’s Den: Pleads Not Guilty

Abilene, Kansas – A veteran First Amendment attorney from the home state of the Lion’s Den Adult Superstore and an attorney from Manhattan appeared on behalf of the adult store before Senior Judge Ronald Ennis this week in Dickinson County District Court.

Michael Murray and Robert Littrell, attorneys for the Lion’s Den, entered pleas of not guilty to all 29 counts of promoting obscenity filed by a grand jury on April 1. Ennis was designated as a special judge for the case that would have normally appeared before Magistrate Judge John Barker.

Murray is from Cleveland, Ohio, the same state where more than one-third of the Lion’s Den Adult Superstores are located.

“I’ve done a fair amount of First Amendment work,” Murray said, but he declined to indicate whether he had represented the adult store chain before.

Special prosecutor Thomas Lemon of the Topeka law firm, Cavanaugh, Smith and Lemon, asked permission to file an amended indictment since the prosecution has since learned the corporate identity of the store located just off Interstate 70 at the Fair Road exit. The complaint formally charges Abilene Retail No. 30 with 29 counts of promoting obscenity, a class A misdemeanor punishable by a fine of up to $1,000 and up to one year in jail.

Lemon said since a corporate identity had been obtained, individuals employed at the Abilene store would likely not be prosecuted.

“In furtherance of my instructions from the grand jury, if a proper corporate identity could be obtained, then it was their intent that the individuals selling things at the store be left alone,” Lemon said.

Despite this week’s hearing being simply an arraignment, the defense already began to give hints as to their strategy. Murray requested that the court release to the defense whatever information it was entitled to regarding the grand jury, including the names and votes of the grand jurors.

Lemon said he wasn’t sure he could agree to that information being released because he was not certain of what Kansas Statutes say about releasing proceeding information once an indictment has been filed.

“We have a reason for requesting this information. It’s not just a fishing expedition,” Murray said. “This grand jury was assembled because of a petition, and we have reason to believe that some of the grand jurors also signed that petition.”

Ennis said he would agree to releasing the names of the jurors, without any reference to the nature of their activities in the proceeding, including how each juror voted.

Littrell asked that even if the defense could not know how each of the 15 jurors specifically voted, they would at least like the tally on each of the 29 counts.

“Twelve individuals have to agree on each particular count,” Littrell said. “And we would at least request the vote tally to know whether or not there are possible problems (with the jurors). If all 15 agree on each count, that’s one thing. But if only 12 of them did, then there may be some issues that we would raise.”

The vote tally of the jurors would not be released at this time, Ennis said. But it could be addressed later in a motion by the defense if they felt it was necessary, he added.

“I think the issue you want to raise is whether some of these people should have even been grand jurors,” Ennis said.

“Exactly,” Murray replied.

Other orders made by Ennis were that copies of the affidavit for the search warrant will be unsealed and released to the defense, and witnesses in the case will be endorsed on the formal complaint.

The case against the adult superstore has been slow going since the grand jury was first convened in late January, and it may be next year before a jury is actually summoned to hear the case. Murray said the defense wished to waive its right to a speedy trial, but that they would be demanding a trial by jury.

“I know cases of this type normally present Constitutional issues, so I want to attempt to establish a meaningful brief schedule,” Ennis said. “But I will defer to (counsel’s) schedules to determine what deadlines we set because I know this isn’t the only case that you have.”

Murray requested that the parties be given 90 days to file any pre-trial motions. Ennis stated that was a reasonable request and instructed counsel that all pre-trial motions and other matters to be considered by the court needed to be filed on or before Oct. 1.

The parties will then be given until Nov. 15 to file any responses to those motions. Arguments on the motions and any evidence that may need to be presented will be heard on Dec. 7. Ennis indicated he wished to set a trial shortly after the Dec. 7 hearing.

Until that time, Ennis placed no restrictions on comments made by the attorneys outside the courtroom, as long as they fall within ethical standards.

“Generally, it’s been my experience that it’s best to let the media observe and report what occurs within the courtroom,” Ennis said. “But I believe that it’s permissible for the parties to make comments on the case outside the court, so long as they are within the guidelines of the ethical standards. So I will defer to the judgement of counsel on whether or not they make comments outside the court.”



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