CBLDF FILES MOTIONS TO DISMISS LEE CHARGES, ALLEGES PROSECUTORIAL MISCOUNDUCT

[MattBrady]

Adding a touch of offense to their legal strategy in the Gordon Lee case, the Comic Book Legal Defense filed motions in Floyd Country, GA Superior Court to dismiss the charges against Lee last Tuesday, on the basis that the law Lee was accused of breaking is unconstitutional. Additionally, the counsel for the CBLDF is seeking to dismiss the accusation against Lee based on prosecutorial misconduct by the Floyd County District Attorney’s office.

Lee, as Newsarama readers will recall, is accused of two misdemeanor counts of of distribution of materials allegedly “harmful to minors” (pursuant to GA Section 16-12-103). The charges came about when Lee or one of Lee’s employees accidentally gave a minor a copy of Alternative Comics #2 during a Halloween event on October 30th, 2004. The comic, which contains adult language, briefly shows Pablo Picasso in the nude in a historically accurate telling of a period in the artist’s life.

Lee was charged with two felony and five misdemeanor counts in February of last year with giving the comic to a 9-year old boy. Over the course of the preparation for trial, the efforts of the CBLDF’s counsel has resulted in the State of Georgia dropping both felony counts, and three of the five misdemeanors. Lee was scheduled to go to trial in early April of this year, but the case was dismissed at the last moment, and misdemeanor charges were filed based on new facts, and Lee was arraigned under the new accusation on May 19.

It’s the latest developments in the case which responsible for the motion alleging prosecutorial misconduct on the part of the DA, that is, the revelation made less than 18 hours before Lee’s trial was to begin on April 3rd that the comic book handed to a specific nine year old minor (as the charges alleged) was in fact not handed to him, but to his six year old brother. As a result of the last-minute revelation, the charges against Lee were pulled, and new charges were filed based on the revised facts of the case.

Upon that, CBLDF counsel is claiming that the District Attorney is guilty of prosecutorial misconduct given that for the eighteen months the case against Lee was being prepared; it should have known that the allegations made in the Indictment against Lee were false. Additionally, according to the motion, the CBLDF claims that the DA is guilty of prosecutorial misconduct because: it allowed untruthful testimony to be presented in the Grand Jury, under oath; it allowed untruthful testimony of the victim and the victim's family to be presented to the Grand Jury; and it did not tell defendant's counsel until a Sunday afternoon, eighteen hours prior to trial, that the allegations contained in the Indictment were untrue, after much time and expense was incurred bringing out-of-state witnesses to Rome for trial.

The motion alleging misconduct asks the court to: order the District Attorney's office to produce all statements, et al, considered in bringing the charges which they now admit were false; to issue an order finding the DA's office committed prosecutorial misconduct; and to issue an order dismissing all charges against Mr. Lee.

According to a report in the Rome News-Tribune, District Attorney Leigh Patterson said Tuesday that her office has “been honest and above board throughout this case. We forwarded new information to the defense as quickly as we got it.”

The DA’s office plans to file a response to the motion alleging misconduct, according to the paper.

As for the motion to dismiss the misdemeanors, the CBLDF’s motion argues that Georgia’s harmful to minors law is, in fact, unconstitutional. In the Memorandum In Support of Defendants Motions To Dismiss, counsel states: that the depictions of Picasso in the story are lawful and thus the distribution to minors is lawful because:

1) The depictions and story are non-obscene protected material pursuant to the First Amendment of the U.S. constitution;

2) The State has no legitimate interest in banning non-obscene, non-sexually explicit nudity to minors under due process;

3) The proscriptions at issue, as applied to this material, in so far as it requires warning labels, ignores the fact that material with nudity, but not sexually explicit conduct is distributed throughout Floyd County without prosecution, in violation of equal protection guarantees;

4) The proscriptions at issue, as applied to this material, is arbitrary and capricious, in violations of due process;

5) The proscriptions at issue are overbroad because they make illegal material with simple nudity which were not intended to be proscribed, and for which the government has no legitimate reason to make illegal; and

6) The terms used in §§ 16-12-81 and 16-12-103 are vague because they fail to notify citizens and law enforcement as to what material (if any) with simple nudity is prohibited."

The law which Lee is being charged under, according to CBLDF counsel, is “so overbroad” that it could be applied (with requisite charges filed against anyone who would sell) Batman, Superman, or even a Sports Illustrated swimsuit issue, and applied, as it is written to all nudity, no matter the context.

According to the CBLDF, it has spent over $60,000 on the case.

[Scott King]

from the article I'm a tad confused on where things go from here... Maybe I just missed it when reading it. Are there new dates for this to go to a judge or to court or what?

[BlueThunderArmy]

Awesome to see them fighting back, and calling a spade a spade. If other progressives took this approach, we might actually be able to win an election.

[Spaz_Monkey]

As I see this -

If the state continues wiht the prosecution of this case, then they have no choice but to go after every Target, KMart, WalMart, Best Buy, Circuit City, Suncoast Video, Blockbuster, Hollywood Video, and any other store that sells/rents any of the Simpsons season sets. The rampant (yet non-sexual) nudity is offered up as 'humor' time and again. Countless are the episodes showing the exposed backsides of Homer and Bart Simpson, as well as many other supporting characters.

Am I wrong? It's nudity, and children have access to it.

[DeadshotFan]

Holy Crap!
I cannot believe this is happening.
We are talking Rome GA. here right?
I have got to make a trip to actually see this town.
CBLDF in my opinion is turning this into a "event" almost as much as the local prosecutor.
I hope no one in this city sees a copy of Lost Girls.
What a freakin waste of $$$$$$$$$.
If I were a taxpayer in Rome GA. I would be up in arms over all the effort on a comic shop when I am sure not to far away there is a meth lab or two.

[dkc_2001]

I don't think it's fair to go after one medium and ignore another, such as cartoons. Even on Cartoon Network, I've never seen so much ass in my life. Between Dexter's Lab, My Gym Partner's a Monkey, Kids Next Door, etc., you can hardly claim a six or a nine year old has never seen a naked person. What crap.

[kalorama]

Well, you had to have seen the prosecutorial misconduct charge coming a mile away. Wasting 18 months of peoples' time and lives (and taxpayer money) prosecuting a case based on inaccurate/false testimony was inexcusable. Doesn't matter whether it was intentional or an oversight (which is ridiculously hard to swallow), the prosecutors, by moving forward under those circumstances, acted improperly and failed to do their jobs.

[Bill Myers]

Originally Posted by kalorama

Well, you had to have seen the prosecutorial misconduct charge coming a mile away. Wasting 18 months of peoples' time and lives (and taxpayer money) prosecuting a case based on inaccurate/false testimony was inexcusable. Doesn't matter whether it was intentional or an oversight (which is ridiculously hard to swallow), the prosecutors, by moving forward under those circumstances, acted improperly and failed to do their jobs.

Well said, kalorama. Well said.

[EmeraldGuy32]

hell godamn yes

[hellblazerxx]

Originally Posted by DeadshotFan

Holy Crap!
I cannot believe this is happening.
We are talking Rome GA. here right?
I have got to make a trip to actually see this town.
CBLDF in my opinion is turning this into a "event" almost as much as the local prosecutor.
I hope no one in this city sees a copy of Lost Girls.
What a freakin waste of $$$$$$$$$.
If I were a taxpayer in Rome GA. I would be up in arms over all the effort on a comic shop when I am sure not to far away there is a meth lab or two.

Dude dont waste your time coming to this "fart in the wind" town. It is nothing more than a bunch of bible beating holy rollers with nothing better to do than go on crusades to clean up the evils of their "fair" town.
As a tax paying, law abiding citizen it has upset me to no ends that the District Attorney's office would carry on this charade for over 18 months. Since the beginning when Gordon was brought up on these ________ charges it was going to be nothing more than a crusade for Lee Patterson to make a name for herself here in this county.

[johnchrist]

Hell yeah, go CBDLDF! F____ the Man!

[Ebon]

Originally Posted by hellblazerxx

Since the beginning when Gordon was brought up on these ________ charges it was going to be nothing more than a crusade for Lee Patterson to make a name for herself here in this county.

That's usually how it goes when these sorts of nuisance laws are brought up. They never raid the strip clubs or sex toy vendors unless (1) Someone on a strong 'law and order' platform is up for re-election or (2) you have a prosecutor with ambitions that way who needs a few 'easy wins' to wave around and show that he's 'returning good old fashioned morals to the city'.

[Blind Assassin]

this case has more twists than Law and Order.

Glad to see the CBLD going on the offense here.

As laid out, there arguments seem pretty cut and dried, but I know nothing of law, so I will wait and see how a judge rules, along with the rest of you.

[kadymae]

What I'm finding so amusing here is that I think the local DA had a case where s/he thought they would make a lot of political hay prosecuiting a comic book store and ...

... whoops! Had no idea about the CBLDF.

I think they'll discover that the light at the end of the tunnel was a oncoming train.

[Renonevada2000]

If the CBLDF can prove misconduct, can they sue the DA's office to recover the expenses incurred in flying in witnesses, etc. for that first, cancelled trial?