Judges rule grand jury won’t hear adult store obscenity case

02/18/2014 7:13 AM

02/18/2014 7:13 AM

Eighth Judicial District judges threw out a petition calling for a grand jury investigation of whether the Lion’s Den Adult Superstore violates Kansas obscenity laws, saying the petition didn’t meet new requirements in state law that petitioner Phillip Cosby said he helped to get adopted.

Chief Judge Michael Powers signed the order dismissing the petition on Feb. 10. Cosby said he received notification Friday from the court that the petition had been found to be lacking “sufficient general allegations” to warrant a finding that inquiry may lead to indictment.

‘Does not comply'

“In fact, the court finds that there is no mention whatsoever regarding even general information upon which a grand jury could identify what they were summoned to do,” the order said. “The court therefore finds that the petition does not comply with the law as amended by the Legislature in 2013.”

When contacted by the Journal, Powers said the order pretty much speaks for itself and declined to answer further questions.

The petition filed on Jan. 23 had already cleared one hurdle in January, when a county election official validated 345 signatures — nearly 120 more than required — as registered Dickinson County voters. The store is located on the north side of Interstate Highway 70, just west of Abilene.

Cosby, the Kansas state director of the American Family Association, was not anticipating issues with the form of the petition he filed on Jan. 23, because it was the 10th time he had petitioned to have a grand jury empaneled. He said he is puzzled as to what information would satisfy the requirement.

However, he said if the court will give him some direction on what type of information it seeks or provide an example, he will gather the necessary signatures again on a more detailed petition if necessary.

Our own investigation?

“I can’t imagine they would want us to do our own investigation — that would be commissioning citizens to do what professionals do in law enforcement,” Cosby said.

He said the investigation should be left up to the grand jury, which would decide for itself how to proceed. In the past, he said, some have chosen to visit stores and see what is sold, some send the sheriff as a representative or send a portion of their members.

He said he would recommend that the entire grand jury go to the store, which sells sex toys and videos,with the sheriff and a search warrant. He said each member could purchase three items through the sheriff’s budget for further review and determination of whether the items violate community standards.

Cosby said he will write a letter seeking further clarification from the judges, and then he will comply. He said he does not anticipate any difficulty acquiring sufficient signatures again.

“Usually courts are gracious in dealing with lay persons who are dealing with the law, and they are careful to explain,” he said. “I’ve talked to three attorneys so far, and they’re all scratching their heads.”

Specific, graphic verbiage

Cosby cited Kansas statute 21-6401 as the road map for his petition, saying it contained “specific information with graphic verbiage as to how obscenity is defined.”

“Much of the printing of the explicit words contained in 21-6401 would be a concern to a newspaper editor,” Cosby said in a statement he released.

Cosby said he had testified before the House judiciary committee last summer and encouraged adoption of the new language in the law, but he did not anticipate this result.

He said in a statement there was “some irony here” because he was the one who in 2013 introduced the “sufficient general allegation” wording. That came about because of a 2012 citizens grand jury in Johnson County “being held to a strict single word in their citizen petition.”

It’s more than obscenity

Cosby said that in Johnson County, members of a grand jury were directed by an attorney to explore only possible obscenity violations and overlook any other possible legal violation they may uncover in the course of their investigation, because only obscenity was referenced in the petition.

Cosby testified that grand juries should “enjoy the freedom to investigate, to roam, examine the laws and discover the whole truth.”

Cosby encouraged the addition of the phrase “sufficient general allegations” in an effort to broaden the scope of what a grand jury could explore, but he said it appears that the judges interpreted the wording as requiring more specific information on the petition.

“The independent, autonomous, robust nature of the grand jury was short-stopped in Johnson County; therefore, the Kansas Legislature clarified a general sense of direction,” he said.

2003 case thrown out

When the Lion’s Den store opened in 2003, Cosby helped form an opposition group — Citizens for Strengthening Community Virtues. Group members picketed the store, threatened to report customers to their employers and circulated a petition to empanel a grand jury to charge the Lion’s Den with promoting obscenity.

A grand jury empaneled at that time came back with a 29-count indictment. However, the case was thrown out after a judge found that signatures on the petition didn’t meet state requirements.

Ten misdemeanor charges later were filed by the county attorney related to 10 different sex toys sold at the store, but those charges were dropped after a section of the obscenity statute was found to be “fatally flawed,” Cosby said. After the Legislature corrected the law, charges were not refiled.

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