By Dan Horn
The Cincinnati Enquirer

Jennifer Dute was ordered to remain in prison Thursday while she appeals her conviction for selling obscene videotapes of her sexual encounters.

The 2-1 decision by the Ohio First District Court of Appeals brought a strong rebuke from the dissenting judge, who argued that it made no sense to keep a non-violent offender behind bars during the appeals process.

The judge, Mark Painter, said Ms. Dute stands a good chance of winning her appeal but now will likely serve her entire one-year sentence before finding out if she is successful.

"The appeal is not frivolous," Judge Painter wrote. "By making her serve her sentence before her appeal is decided, the majority may be denying this defendant justice."

The decision adds more controversy to a case that already had plenty.

Ms. Dute was sentenced to one year even though defendants convicted of pandering obscenity - the same charge against Ms. Dute - often get probation instead of prison.

State records show that of Ohio's 44,000 inmates, 38 are in prison solely because of convictions for pandering obscenity.

Ms. Dute, the mother of a 7-month-old boy, had asked for an appeal bond that would have allowed her to stay out of prison pending the outcome of her appeal.

But two appeals court judges, Lee Hildebrandt and Ralph Winkler, voted against her release. They did not issue a written opinion, although Judge Painter wrote a short dissent.

Prosecutor Mike Allen defended the court's decision Thursday, saying Ms. Dute had been convicted after a fair trial and should now serve her time. "There's no reason to grant an appeal bond," Mr. Allen said.

Ms. Dute's lawyer, H. Louis Sirkin, could not be reached, but previously has said his client may have been singled out by law enforcement because she sold her videos on a Web site that ridiculed Hamilton County Sheriff Simon L. Leis, a staunch opponent of pornography.

At her trial last month, Mr. Sirkin argued that sexually explicit videos are widely available in Hamilton County via mail order and satellite TV. An Enquirer investigation last year found that at least 21,000 county residents had ordered explicit videos from mail order companies in 2000 alone.

The availability of explicit videos is relevant in obscenity cases because juries must determine whether a particular community's standards tolerate sale of explicit materials.

In Ms. Dute's case, the 32-year-old Anderson Township woman sold a series of videos showing her having sex with multiple partners. Ms. Dute's husband, Alan, 61, was accused of shooting the videos but was found not guilty of the pandering charges.

Judge Painter argued in his dissent that Ms. Dute should be granted an appeal bond because "we cannot refund the prison term to her" if her appeal succeeds.

E-mail dhorn@enquirer.com