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.I haven't read the arguments, but I wish the odds weren't so long and that the court would have taken this case. "Convict for the kids" is about as asinine an argument as the day is long.
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."
Thanks to SCOTUSBlog for the reference.