This is about the owner of my local comic book store owner. He is currently being defended by the the Comic Book Legal Defense Fund.
Gordon Lee: The Road To Trial
After nearly three years, as many arraignments, and at least two sets of facts all arising from the same incident, amounting to an $80,000 price tag, the case of Georgia v. Gordon Lee is scheduled to finally see trial this August. Busted! examines one of the strangest and most necessary defenses the CBLDF has undertaken.
During Halloween week 2004, Gordon Lee’s comic shop, Legends, of Rome, GA, participated in a trick-or-treat event in downtown Rome by distributing free comics. "Alternative Comics #2," the Free Comic Book Day edition from publisher Alternative Comics for 2004, was inadvertently included in the mix of books being given away. The comic was a single copy among thousands of comics being given away that day, and was accidentally handed to a minor, whose parent filed a complaint with the police.
The comic book features a variety of stories from the company's line, including an excerpt from Nick Bertozzi's now published graphic novel The Salon, depicting the first meeting between Georges Braque and Pablo Picasso. On three pages of the eight page section, Picasso is depicted in the nude, a factually accurate detail for the period during which the story is set. There is no sexual content in the story.
Upon learning of the error in distributing the comic, Lee admitted that a mistake was made and offered to make a public apology for the first of many times. That apology was rejected, however, so days later, Lee was arrested.
While his case moved through the legal system, Lee appealed to the Fund for help in January 2005 by bringing his situation to the attention of Board Member Peter David. The CBLDF Board of Directors voted unanimously to financially support Lee's defense.
At arraignment in Spring 2005, Gordon Lee was charged with violating two laws: 1) Two counts of distributing material depicting nudity or sexual content, a felony; and 2) Five counts of unlawful disposition of materials to minors, a misdemeanor. The felony counts alleged that Lee had distributed the comic to the named victim and to a “John Doe.” Three of the misdemeanor counts were for distributing the single comic to the named victim, with the other two counts alleging that the comic was distributed to “John Does.”
In May 2005 the Fund submitted four motions to dismiss the counts Lee faced. The Fund’s legal team, led by Atlanta lawyer Alan Begner, and coordinated with Cory Begner and Rome criminal expert Paul Cadle, challenged the constitutionality of both the felony and misdemeanors laws, as well as the standing of the John Doe charges. A hearing on those motions was held on December 1, 2005 during which, likely in response to Fund motions, the prosecution dismissed both felony counts and both “John Doe” counts. On January 2, 2006, Judge Salmon dismissed the felony and “John Doe” misdemeanor counts with prejudice, and consolidated the remaining misdemeanor counts from three to two.
The Fund prepared for trial on the two remaining Distribution of Harmful to Minors counts: (1) for “distributing a book, pamphlet, magazine, and printed matter containing pictures, drawings and visual representation and images of a person an portion of the human body which depict sexually explicit nudity, sexual conduct, and sadomasochistic abuse and which is harmful to minors;” and (2) for knowingly furnishing and disseminating to a minor materials “containing explicit and detailed verbal descriptions and narrative accounts of sexual excitement, sexual conduct, and sadomasochistic abuse and which taken as a whole is harmful to minors.” The Fund maintains that the material in question fails to meet the criteria as charged.
The Fund spent the spring of 2006 preparing for trial, which was scheduled for early April, when matters took a strange turn.
On April 2, 2006, the eve of trial, prosecutors contacted Mr. Lee’s counsel to notify them that they intended to dismiss the charges against Lee because, after 18 months, and numerous court appearances, they discovered that they had the wrong victim.
The morning of April 3, prosecutors walked into court and stated their intention to declare the case nolle prosse, meaning that the charges that were to go to trial were dismissed. They later re-filed under a new accusation alleging that Lee handed “Alternative Comics #2” to a six-year-old minor and his nine-year-old brother, instead of solely to the nine-year-old, as had been previously, and repeatedly, declared.
Though the dismissal was a victory in the near term, because it served as an admission that Lee was not guilty of the crimes for which he was accused in October of 2004, it raised abundant questions about how prosecutors arrived at this point.
Lead counsel Alan Begner said, “I have never -- as a criminal trial lawyer for thirty years -- seen a complete changing of the facts like this. Throughout the year and a half before that trial date, through written statements, the investigation, and the presentation of evidence before the grand jury, as well as the written accusation and indictment, the State had steadfastly asserted that the comic book had been handed to the nine-year-old. The dismissal of the charges today reflects the prosecution’s admission that everything that was presented as evidence before was untrue, and that they had stuck to the false facts through procedure after procedure in the case. How did a year and a half of statements based on one set of facts get changed at the last minute to another set of facts?”
Co-counsel Paul Cadle added, “To find out about this significant factual change in the allegations against Gordon at 3 PM on a Sunday when we were supposed to be going to trial at 9 AM on a Monday is disconcerting. It unfortunately has the result of costing Mr. Lee and the Fund tons more time, effort, and money.”
That Monday, Charles Brownstein, the Fund’s Executive Director said, “Today’s proceedings represent one of the stranger legal episodes in the Fund’s twenty-year history, but it is an episode that stands as vindication of our commitment to proving Gordon’s innocence, as well as affirmative evidence of the larger importance of our organization’s purpose. From the start of the courtroom process, our attorneys have proved that Mr. Lee has been unjustly overcharged, and yesterday’s dismissal of that case is the most recent indication that his arrest and the charges brought against him were entirely without merit.”
Going Through the Motions
On May 19, 2006, a new arraignment was held for Mr. Lee on an accusation containing the same two misdemeanor counts of Distribution of Harmful to Minors materials deemed triable under the original accusation, but this time it was for giving Alternative Comics #2 to both the six-year-old and the earlier named nine-year-old. The Fund filed several motions to dismiss and procedural motions on May 30.
Perhaps the most notable of the Fund’s May motions was a motion 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 held 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 asked 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.’”
As for the motion to dismiss the misdemeanors, the Fund’s brief argued that Georgia’s harmful to minors law is, in fact, unconstitutional. In the Memorandum In Support of Defendants Motions To Dismiss, counsel states: “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."
Fund counsel held that the law which Lee is being charged under 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.”
On June 2, shortly before the scheduled hearing on the new motions, prosecutors brought the case back to square one for the second time. They filed a new indictment procured in a special session of the Grand Jury that replaced the second accusation, likely in response to the Fund’s motion to quash the accusation that Lee was entitled to be indicted before the Grand Jury under Georgia law. Prosecutors deliberately failed to inform Lee’s counsel of this development, which mooted the scheduled motions hearing. Lee was arraigned on that new indictment on July 7.
The case will go to trial in the Summer of 2007 under an indictment reading as follows:
And the grand jurors aforesaid in the name and behalf of the citizens of Georgia charge and accuse Gordon Clifford Lee with the offense of EXHIBITION OF HARMFUL MATERIALS TO A MINOR (OCGA 16-12-103) for that the said accused on the 30th DAY OF OCTOBER, 2004, in the County aforesaid, did unlawfully then and there, knowingly furnish and disseminate to a minor, to wit: XXXX XXXX XXXX AND XXXX XXXX XXXX, a book, pamphlet, magazine and printed matter containing pictures, drawings and visual representation and images of a person and portion of the human body which depict sexually explicit nudity, sexual conduct, and sadomasochistic abuse and which is harmful to minors, contrary to the laws of this State, and the good order, peace and dignity thereof.
And the grand jurors aforesaid in the name and behalf of the citizens of Georgia charge and accuse Gordon Clifford Lee with the offense of EXHIBITION OF HARMFUL MATERIALS TO A MINOR (OCGA 16-12-103) for that the said accused on the 30th DAY OF OCTOBER, 2004, in the County aforesaid, did unlawfully then and there, knowingly furnish and disseminate to a minor, to wit: XXXX XXXX XXXX AND XXXX XXXX XXXX, a book, pamphlet, magazine and printed matter containing explicit and detailed verbal descriptions and narrative accounts of sexual excitement, sexual conduct, and sadomasochistic abuse and which taken as a whole is harmful to minors, contrary to the laws of this State, and the good order, peace and dignity thereof.
This marked the third time that Lee was charged as a result of the same incident. It also was the third set of charges pending against Lee, as prosecutors did not formally dismiss either the first indictment, which they claimed would be deemed nolle prosequi, nor did they dismiss the second accusation.
Immediately following the new arraignment, Lee’s attorneys again filed motions in response to the prosecution’s charges, and the two pending accusations, which should have been dismissed. This third set of motions carried the arguments made in earlier motions, including: Motion to Dismiss on grounds that the State Harmful to Minors law is unconstitutional, and a memorandum in support of that motion; and the Motion to Dismiss based on prosecutorial misconduct. Two Demurrer and Motion to Quash documents; another motion to quash, and two procedural motions were also admitted.
The Demurrer and Motion to Quash motions asked the court to dismiss the case on several grounds.
The second indictment fails to identify any harmful material that Mr. Lee is accused of distributing, which does not sufficiently apprise him of what he should be prepared to meet, and renders him unable to prepare his defense or to submit to the court the question of whether he should be required to answer the charge. Further, the new indictment does not describe the offense so plainly that the nature of the offense charged may be easily understood by the jury.
The prosecutors failed to dismiss either of the two earlier cases, including the original indictment, which they admitted before the judge was based on false information. Further, though prosecutors told the judge that the comic was distributed to not to the originally named boy but to his younger brother, the new accusation and later indictment name both the original boy and his younger brother in the conjunctive. In doing so, the prosecutors have failed to name an alleged victim, rendering Mr. Lee unable to prepare a defense.
The current indictment fails to adequately charge Mr. Lee with an offense against the laws of the state of Georgia. This indictment omits the words “taken as a whole” from the charges, failing to meet the standards of violating the Harmful to Minors statute as prosecutors allege. Mr. Lee’s attorneys prayed that:
a) that these demurrers be inquired into;
that they be sustained;
c) that each count of the first Indictment, filed on February 25, 2005 be quashed;
d) that each count of the Accusation, filed on April 3, 2006 be quashed; and
e) that each count of the second Indictment, filed on June 2, 2006 be quashed
A hearing on those motions was held in Fall of 2006 where they were all denied. The court held that this is the third “re-incarnation” of the earlier action brought in 2005, and dismissed all motions, including those alleging prosecutorial misconduct, the challenge to the constitutionality of Georgia’s Exhibition of Harmful Materials to a Minor law (OCGA 16-12-103) and demurrers and motions to quash.
No one, least of all Gordon Lee, ever denied that a mistake was made by accidentally distributing Alternative Comics #2 to a minor. Lee repeatedly offered public and private apology for the mistake. That said, accidentally handing a comic book that is neither obscene nor harmful to minors under the guidance of the U.S. Supreme Court is not a crime. Nor does it merit the systematic overcharging and harassment that Lee has received at the hands of the Rome, GA prosecutors.
“This is a case where an apology should have sufficed,” says CBLDF Executive Director Charles Brownstein, “and instead a man’s livelihood and freedom have hung in the balance for what is going on two years.”
If convicted under the misdemeanor counts Lee still faces, he stands penalties of up to a year in prison and up to $1,000 in fines. That’s a fate the CBLDF is determined to quash.
Brownstein adds, “By June 2007, the Fund spent $80,000 defending Mr. Lee against these unjust charges – a sum that no small retailer, such as Gordon, would have been able to afford. Without the Fund, he would have had to risk personal bankruptcy or pleading to a crime that prosecutors have admitted he is not guilty of committing. Our purpose is to defend retailers like Gordon against such unjust prosecution. And while the cost of proving his innocence is great, it is a pittance in comparison to seeing a member of our business community sold down the river for crimes of which he is innocent."
He concludes, “I can only shake my head at the fact that the case has come this far, and that the prosecution appears ready and willing to sink even more of Rome’s public resources into prosecuting such a merit less misdemeanor. That said, we intend to finish the job we started: to continue our march to prove Mr. Lee’s innocence, and to ensure that no retailer in Georgia is harmed by any bad precedent that could arise from a conviction in this case.”
If the case develops according to schedule, Gordon will at long last have his day in court this August (13th).