Movie (hard) time averted

Durham County Superior Court is a solemn and gloomy place, where people alleged to be society’s most serious offenders are tried for egregious crimes. Besides the accused killers, child molesters and rapists on trial last week, Larry Partée, a 58-year-old resident of Preiss-Steele Place, an affordable housing complex for the elderly or disabled, was on trial for a felony charge: knowingly advertising for sale or selling more than 100 pirated DVDs for private or commercial gain.

That Partée’s case rose to the fifth floor of the courthouse raises questions about the priorities of the district attorney’s office. The case, which included a civil and a criminal trial, cost far more to investigate and try than the value of the DVDs. (See box, this page.)

Last fall, in an interview with the Independent, Durham Assistant District Attorney Doretta Walker characterized Partée as “small potatoes” and his case as “nothing special.” Yet, emboldened by a training session on intellectual property and copyright violations, Walker pursued and obtained a grand jury indictment against Partée. (See “Free movies or felonious activity?,” Sept. 20, 2006, and “Housing authority critic evicted for selling DVDs,” Dec. 13, 2006.)

The criminal trial occupied a courtroom for two days, further burdening an overtaxed county court system. The median age of a pending felony case in Durham Superior Court is more than 10 months; the state-wide median is eight-and-a-half months.

And the verdict? Not guilty.

Last June, Partée, president of the Preiss-Steele tenants’ association, posted flyers in the building’s elevators announcing he had movies available for viewing. He also showed free movies to residents in the library and multi-purpose room, he testified, “because most don’t have the money or can’t get out except to go to the doctor.” When Preiss-Steele property manager Tammy Atkins saw the flyers, she didn’t call Partée, but immediately paged Durham Police Officer John Massimo, who is assigned to public housing. “I knew that a few of the movies listed were still in theaters,” Atkins testified.

Atkins summoned Partée to her office. She, Massimo and Partée went to Partée’s third-floor apartment, where he relinquished the DVDs to police. Since Partée had more than 100 allegedly pirated discs and was suspected of selling them, he was charged with a felony, which carries a penalty of up to 15 months in jail, a $150,000 fine, or both. He was arrested and released on $2,500 unsecured bond.

As part of a plea bargain, Walker had offered to reduce the charges to a misdemeanor, with a maximum jail time of 120 days or five years probation. Partée, who is chronically ill and receives $900 a month in Social Security disability benefits, turned down the deal; a criminal conviction could impact his eligibility for public housing.

Partée had already paid for the mere suspicion of being a criminal. Last August, DHA revoked Partée’s Section 8 voucher, and in December, the Housing Authority won a civil trial and evicted him a week before Christmas in connection with the criminal allegations. Partée’s court-appointed lawyer, Dan Read, successfully argued for Partée to stay in his apartment until the case was finished.

The trial featured minor theatrics by the prosecution. Walker toted to the witness stand the box of DVDs, which weighed no more than 20 pounds, as if lugging a concrete block across the courtroom. The expert witness, Bennett Cale, a private investigator and retired FBI agent trained in identifying pirated recordings and busting counterfeiters, was paid at least $300 in hourly fees and mileage by the Motion Picture Association of America for his testimony. On the witness stand, Cale spent nearly 10 minutes silently pulling each DVD from its case and examining it as if grading a diamond. “Everyone I see here is pirated,” he testified.

The only evidence of sale offered by the prosecution was testimony from Preiss-Steele resident Emma Manuel, who said Partée sold her two DVDs, totaling less than $15, “to help the association.” A receipt, written by Partée, included an IOU for $6 she still owed him. However, on the witness stand, Partée countered that Manuel had asked him to buy the DVDs for her at a store and that his personal collection had already been confiscated.

Read noted in his closing arguments that there was no evidence Partée sold the DVDs or profited from a sale; merely possessing them isn’t against the law. Other than a desktop computer, he had no copying equipment, nor did the fliers mention the movies were for sale or list a price. The arrest was payback, Read concluded, because as association president, Partée had complained about poor conditions, including dirty public bathrooms, overflowing trash cans and a lack of air-conditioning in common areas at Preiss-Steele.

Partée’s complaints weren’t unfounded. Last September, the city’s Department of Housing sent a letter to Preiss-Steele pointing out six violations, including the bathrooms, heating and air-conditioning system, and back entrances that were inaccessible to the handicapped. Constance Stancil, director of the Durham Neighborhood Services Department, said most violations have been corrected except for the heating and air-conditioning system, which she added, was installed improperly during the building’s construction, as were the back doors.

“Atkins chose to bust a troublemaker,” Read told the jury. “Now’s the time for you to say this is ridiculous.”

In her closing arguments, Walker contended that Partée, who testified he worked as a journalist, college registrar and schoolteacher, was trying to outfox the legal system on a technicality.

“We know he’s selling these,” she told the jury, as the box of DVDs sat on the railing. “He’s crafty. He’s educated. He’s a man of the world. He knew he shouldn’t put the price on there, advertise them for sale. We feel for his conditions, but he still committed a crime.”

The jury deliberated five hours, asking for clarification about the meaning of “reasonable doubt” and “advertising.” They could have found him guilty of the felony or a lesser misdemeanor charge of selling two DVDs to Manuel. They chose to acquit him.

Jury foreman John McDonald later said jurors weighed whether Partée intended to sell the DVDs even though the flyer didn’t explicitly say so. “A lot of people put up flyers for things to sell, but there’s not a price on them,” McDonald said.

However, the jury concluded there wasn’t enough evidence that Partée had sold any discs. “There was a receipt, which he had a story for,” McDonald said. “Whether it was true or not, that’s what we had. I didn’t see any incontrovertible proof that he’d done anything. Several people had their own opinions, but we couldn’t justify it based on what we’d seen.”

After the jury acquitted Partée, he stood outside the courtroom and began to cry. He had spent those five hours, he said, “thinking about going to jail.”

Meanwhile, Walker headed for the elevator. She said she wasn’t surprised by the verdict in the first of her counterfeit cases to go to trial. Asked how many hours she had spent on Partée’s case, she answered: “I wouldn’t have any idea.”

A day after the verdict, a judge ruled that Partée could remain at Preiss-Steele as long as he paid his rent on time.

“No one’s been hurt by anything Larry’s done,” Read said. “Unfortunately, they can’t see that and leave him alone.”