By Dan Horn
The Cincinnati Enquirer
Three appeals court judges grilled Hamilton County prosecutors Wednesday about an attempt to reinstate old criminal charges against Larry and Jimmy Flynt.
Prosecutors claim the Flynts, owners of the Hustler store in Cincinnati, violated a 1999 deal in which prosecutors dropped pandering obscenity charges and the Flynts promised to never again sell sexually explicit videos in the county.
Prosecutor Mike Allen sought to reinstate the original charges last year after a raid of the store found numerous explicit videos for sale.
But at a hearing Wednesday before the Ohio 1st District Court of Appeals, the judges repeatedly challenged Allen's plan to reinstate the old charges.
The judges will not decide the case for weeks, but the tough questions they asked of prosecutors suggested they are wary of any attempt to hold the Flynts legally responsible for a promise they made five years ago.
"I'm having a hard time with this," Judge Mark Painter said. "If you dismiss a case, it's over. If this were proper, it seems to me you could have everybody in the county on super secret probation indefinitely."
The Flynts' lawyers said it's unfair and unconstitutional to charge their clients with crimes for selling videos that no longer are available at their Hustler store.
They also argued that the 1999 deal should be thrown out because it bans the Flynts from selling all explicit videos, even those that may not violate community standards for obscenity.
"The (1999 deal) is unenforceable because you can't make someone trade away their constitutional right to distribute non-obscene material," said Paul Cambria, one of the Flynts' lawyers.
Judge Ralph Winkler said he was concerned about the 1999 deal because it involved a plea by the Hustler store company, rather than the Flynts as individuals. He questioned whether prosecutors could now charge the Flynts with violating a plea deal that they did not sign.
Assistant Prosecutor Ron Springman said original charges were against the Flynts - not the company - and that the company was permitted to enter a no contest plea only because the Flynts promised to stop selling explicit videos.
If prosecutors don't reinstate the old charges, Springman said, the Flynts will get away with breaking a legally binding deal. And if that happens, he said, the entire plea bargain system would be in jeopardy.
"We're talking about undermining the whole plea bargain process," Springman said.
If the court rules against prosecutorsthey will have to decide whether to bring new charges based on videos now for sale at the Hustler store.
Then it would be up to a jury to decide whether those videos are obscene.
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