A state judge who was proposed for the federal bench by Sen. Lloyd Bentsen (D-Tex.) is seeking Supreme Court vindication of his attempt to prosecute an "adult" theater manager on grounds that the projector used to show "Deep Throat" was "a criminal instrument."
Bentsen recommended Ted Butler of San Antonio Nov. 14. At the time, he said in a phone interview Friday, he was unaware that Butler had been accused of "bad faith and harassment" - first by a panel of three federal judges, then by a panel of the 5th U.S. Circuit Court of Appeals, and finally by the full appellate court, 14 to 0.
The case was widely publicized in San Antonio, according to reporters there. An article appeared Feb. 3 in the Nation magazine.
A few weeks ago, Butler asked the White House to drop his name from consideration. A White House source said the request apparently was relayed by Bentsen.
The senator's press aide, Jack DeVore, told a reporter his understanding was that Butler had decided the Justice Department was not going to ask President Carter to nominate him. A department spokesman declined to comment.
Bentsen said, "I do not remember" who had brought the prosecution episode to his attention. But on learning of it, he said, he told Butler "what I thought his alternatives were, and he made his choice."
Informed that DeVore had said Bentsen "did not have anything to do with the withdrawal of Butler's name," Bentsen said his press aide had erred.
Butler was suggested to Bentsen as a candidate by one of the judicial merit selection committees the senator set up. As a matter of policy, DeVore said, Bentsen does not publicize identities of members of the committees.
Along with the names of nine other candidates for the federal bench, butler's was submitted to, and approved by, the Committee on the Federal Judiciary of the Texas State Bar Association.
In addition, Bentsen recalled, he had sent a staff aide to Texas to inquire of lawyers and others about each of the candidates, whose names were published in newspapers around the state.
Despite such precautions, Bentsen said, months went by without anyone calling the prosecution episode to his attention. But because Butler eventually chose to withdraw, Bentsen said, "the system worked."
The "Deep Throat" case began in 1974. In a nine-day period, San Antonio police three times viewed the film. Each time a magistrate held a hearing - at the Fiesta Theater - and within an hour manager Richard C. Dexter was charged with possession of a "criminal instrument," an ordinary 16-millimeter projector.
Four days after the third arrest, the officials repeated the procedure but lodged the charge against employe Wayne Walker. The law defines a criminal instrument as one "specially designed, made, or adapted for the commission of an offense." Conviction carries a maximum penalty of 10 years and $5,000.
Dexter sued Police Chef Emil Peters and Butler, who was then Bexar County criminal district attorney. He has been a state judge for more than three years.
The three-judge panel ruled in July 1975 that Butler and Peters had shown bad faith and a pattern of harassment to halt the showing of "Deep Throat." The panel emphasized that Dexter's multiple arrests had forced him to post bonds totaling $31,000, and that Butler never had asked a state grand jury for an indictment.
In making "a blatant use of an inappropriate statute," the panel said, the officials' effort to prosecute Dexter "cannot have been undertaken with any desire to actually convict [him] of a crime."
Butler and Peters appealed to the Supreme Court. Three years ago, in its first action in the case, the court nullified the panel's ruling on the ground that proper jurisdiction lay in the 5th Circuit.
The 5th Circuit panel then upheld the finding of bad faith and harassment with an opinion precluding the likelihood of an "honest mistake" by the officials. It said the failure to seek indictments implied that they "recognized that they were acting illegally."
In January, the full 5th Circuit adopted the opinion of its panel, which ordered Butler to pay Dexter's legal fees. Butler and Peters now have asked for Supreme Court review. CAPTION: Picture, SEN. LLOYD BENTSEN . . . "the system worked"