Pornography charges against Dead Kennedys lead singer Jello Biafra and a co-defendant were dismissed Thursday after a Los Angeles Municipal judge declared a mistrial when jurors reported that they were hopelessly deadlocked, 7 to 5 in favor of acquittal.
"Ha-Ha. Y-y-y-e-e-s. We got it," screamed the punk-rock singer, dressed in a three-piece suit, as he triumphantly ran from the courtroom after the decision by Judge Susan E. Isacoff.
"There is such a thing as contempt, however," noted the judge, half-grimacing and half-smiling, before she left the bench.
Biafra, 29, and Michael Bonanno, 27, the general manager of Biafra's Alternative Tentacles Records firm, had been charged with distributing harmful material to minors for having inserted a graphic poster in the now-defunct Dead Kennedys' 1985 "Frankenchrist" album. Similar charges against three co-defendants were dropped before the four-day trial.
Reproduction of Painting
The poster, a reproduction of a surrealistic painting titled "Penile Landscape" by well-known Swiss artist H.R. Giger, depicts 10 sets of male and female genitals engaged in sexual acts.
The jurors, who began their deliberations late Wednesday afternoon, told Isacoff they were solidly split on the two ballots they took before she asked them how they were progressing.
Jurors told reporters that they had been perplexed by complicated jury instructions concerning the definition of harmful matter. They added that the vote appeared to have gone primarily along age lines--with the younger jurors favoring acquittal.
After the dismissal, Deputy City Atty. Michael Guarino, who prosecuted the case, told reporters that he could not refile the charges because they were misdemeanor counts.
Guarino had asked Isacoff to permit him to retry the case, in which event he said he would call expert witnesses to define such terms as obscenity and community standards. But Isacoff replied, "I am not interested in developing a trial-and-error procedure" for the prosecution.
Regard Toward Children
Isacoff added that she did believe that the case deserved to have been heard by a jury and that she also hoped that in the future, Biafra would heed the message of his music and act with more regard toward others, particularly children.
A moment later, after she officially dismissed the case, Biafra bolted from his chair, his arms raised above his head as he screamed his victory howls. Guarino later termed the behavior "the same kind of irresponsibility that we've seen from Day 1 from him as an artist, an individual and a defendant."
As he signed autographs on album jackets and Giger posters for several jury members, Biafra, whose real name is Eric Boucher, said: "The judge had more of a conscience than Mr. Guarino. The judge knew a waste of time when she saw it."
Guarino, who called no expert witnesses during his one-day presentation of evidence, had contended to jurors that they could see with their own eyes that the poster, in and of itself, clearly appealed to prurient interests.
Defense attorneys countered that Biafra, who came in fourth in a 1979 race for San Francisco mayor, was a socially conscious musician who has sought, often through shock methods, to make statements against sexism, racism and man's inhumanity to man. Three art and rock music experts called by the defense testified that the painting by Giger was legitimate art. They also said that even if the poster was ugly, it was meant to complement the lyrics on the "Frankenchrist" album.
The defense also noted that the cover of the album, which has sold about 50,000 copies, contained a warning that the poster inside might be viewed by some as "shocking, repulsive or offensive." Since Biafra's arrest last year, the album no longer contains the poster.
The dismissal was termed a victory for "freedom of expression" by Danny Goldberg, who heads a group called the Musical Majority that has fought against censorship of rock albums. "Probably up in heaven," Goldberg said in a telephone interview, "Elvis Presley, John Lennon, Thomas Jefferson and George Washington are celebrating together that rock and roll and freedom of expression are still alive in America."
The swift mistrial ruling and dismissal came as a surprise to participants, since the jury had never formally indicated that it was deadlocked. Instead, foreman Jane Yuen, 23, told Isacoff it appeared so only after the judge called the panelists into her courtroom at day's end and asked how they were progressing.
Earlier, jurors had asked the court for a further definition of the term "harmful material" and for a copy of the "Frankenchrist" album. After privately discussing this with the lawyers, Isacoff gave jurors a cassette and a tape player but no further instructions.
After the dismissal, juror Brenda Haynes, 21, of Los Angeles, who works in a dress shop, said several older jurors had termed the recording "loud and hard to decipher. . . . It was pretty heated" in the jury room.
Indeed, Haynes noted, one juror threatened to sit in the bathroom until the recording had concluded because of the abrasiveness of its sounds. The woman agreed to continue deliberating only after she was assured that the volume would be turned down.