Supreme Court denies Jesus Castillo case

The Comic Book Legal Defense Fund has learned that the U.S. Supreme Court denied Jesus Castillo's petition for writ of certiorari, bringing his three-year quest for justice to a close. Castillo is presently serving a period of unsupervised probation.

The CBLDF has been providing counsel for Castillo since his arrest in 2000 when he was charged with two counts of obscenity for selling adult comic books to adults. The Fund's lawyers persuaded the court to try the two counts separately and waged a fierce courtroom battle that included expert testimony from Scott McCloud and Professor Susan Napier. The State prosecutor did not offer contradictory testimony, but secured a guilty verdict with a closing argument stating, "I don't care what type of evidence or what type of testimony is out there, use your rationality, use your common sense. Comic books, traditionally what we think of, are for kids. This is in a store directly across from an elementary school and it is put in a medium, in a forum, to directly appeal to kids. That is why we are here, ladies and gentlemen. … We're here to get this off the shelf." Castillo was found guilty and sentenced to 180 days in jail, a year probation, and a $4,000 fine.

Immediately following the first trial, the State dropped the second obscenity count while the Fund prepared its appeal. In 2002 the Appeals court rendered a 2-1 split decision upholding the conviction. Justice Tom James, writing in dissent, would have reversed the conviction on the ground that the State did not provide sufficient evidence that Castillo had knowledge of the content and character of the offending comic book. On the strength of James' dissent, the Fund filed a Petition for Discretionary Review to the Texas Court of Criminal Appeals, which was denied. At the end of the road for Texas Justice, the Fund took the case to the U.S. Supreme Court.

Fund Legal Counsel Burton Joseph explains, "It is rare that the Supreme Court accepts individual criminal cases for consideration. In the Castillo case, in spite of the odds, CBLDF appealed to the Supreme Court on the chance that they would reverse what appeared to be an unjust and unconstitutional decision in the Texas courts. The principle was important, but we knew the odds were long."

"Unfortunately, fighting the right battles is not a guarantee of winning," Fund Director Charles Brownstein says. "The Fund put up a strong fight for Castillo against the rising tide of repression. We were successful in knocking out the second charge against Jesus and in getting a sentence where no actual jail time was served, but unfortunately the higher courts would not correct the blinding injustice at the heart of this case."

Fund board member Peter David says, "When dealing with the denseness of the 'Protect the children!' censorship hysteria in Texas, coupled with the unlikelihood that the Supreme Court would hear the case, this was almost a hopeless cause from the get-go. However, oftentimes it's the hopeless causes that are the ones worth fighting. This unfortunate and spectacularly unjust outcome doesn't change that."

Burton Joseph adds, "One thing is clear, with every defeat of the First Amendment, the censors gain courage to pursue their unconstitutional ends. The Castillo case is among the most appalling cases of injustice ever to come to the attention of CBLDF. Conservative communities are quick to condemn comic book artists and publishers without an understanding that they enjoy the full panoply of First Amendment rights."

"This case bodes badly for the First Amendment," Brownstein comments. "By choosing to deny Jesus' plea for justice, the Supreme Court has allowed a precedent to stand that allows a man to be convicted of obscenity charges without adequate proof being presented that the work he is convicted for selling is constitutionally obscene. All because the medium the alleged obscenity was placed in 'is for kids.'"

Fund board member Neil Gaiman says, "I think the hardest thing to believe is that Jesus was found guilty of selling an adult comic, from the adult section of the store, to an adult police officer, and convicted because the DA convinced the jury that all comics are really intended for children. I can't imagine a world in which the same argument would have worked for books or for films -- and I'm afraid that highlights why comics retailers (and artists and writers and publishers) still need a Defense Fund, and still need to be defended."

"Perhaps the worst thing about the decision is the chilling effect it will have on everyone else working with comics and graphic novels," says attorney and Fund board member Louise Nemschoff, adding, "As we approach another election year, we can expect to see an increase in such attacks on free expression. Now, more than ever, we need the CBLDF to both educate the public and defend those working in the industry from further incursion on First Amendment rights. It deserves our whole-hearted support."

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