…Judge Shore granted [City Prosecutor] Hazard’s motion to prohibit Olson’s attorney Tom Tosdal from mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial.
“The State’s Vandalism Statute does not mention First Amendment rights,” ruled Judge Shore.
The trial, stated the judge, should only focus on whether or not Olson is guilty of vandalism and not what his motivations behind the vandalism were. Shore cited the case, Mackinney v. Nielsen 69 F.3d 1002 (9th Cir.1995), where a man was acquitted after a court ruled that use of chalk was not considered vandalism. The law was later changed to define vandalism as defacement “with graffiti or other inscribed material.”…
I didn’t know Judge’s can ban an attorney’s line of defense/offense ahead of time. If I rob a bank, couldn’t my lawyer argue “space aliens made him do it, and not only that, his rights under the the 19th Amendment allowing women’s suffrage he was allowed to do so. That’s our story and we’re sticking to it.” No doubt similar defenses have appeared over the years.
Back to this case. A well-known (ahem) Constitutional defense may be appropriate. I think so, and probably others, but more narrowly: which and what defense or prosecution maneuver is allowed is one of the main points of a trial, but not the whole strategy, I always assumed.
It’s a bit more complicated than that. The state/prosecution already has had to vet its strategy before the grand jury and convince it to indict. The defense, however, is under no obligation to reveal its strategy ahead of time, to the judge or anyone else. However, the judge can, after the trial begins, prohibit a given defense (whether that defense would be based on constitutional or some other grounds). So many defense attorneys file a brief with the court outlining what their strategy will be(especially if it’s an unorthodox strategy) to avoid the setback of having that defense invalidated in open court and to have to think up an alternative after the trial has already begun.
Sure they can. Otherwise my entire defense strategy could consist of filibustering the trial by arguing every ridiculous irrelevant thing I can think of.
The point is that the guy is charged with vandalism, and one’s free speech rights are irrelevant to the charge. Exercising free speech is not a valid affirmative defense for vandalism.
Coercion is a valid defense for some crimes, so you could make an argument that the space aliens coerced you into robbing the bank to fund their intergalactic war of independence. But that’s also an affirmative defense; the burden of proof is on the defendant to prove that the coercion actually occurred.
But one’s rights under the 19th Amendment are irrelevant. There is no possible way such an issue could have any bearing on whether or not the defendant is guilty of bank robbery. If he feels the government violated his rights under the 19th Amendment somehow, then he can file a civil suit, but if he tries to make such an argument in his bank robbery case, the judge will rightfully tell him to shut up. And he can be charged with contempt if he continues to try to argue it.
Of course, if they feel the judgement is wrong, they can appeal. Presumably the judge has a basis for the exclusions (valid precedents). If he’s being a dickweed, he’ll simply be letting the appeal court set some precedents.
What are the odds there are setttled cases about the difference between vandalism and free speech? Presumably the argument is that since chalk is not permanent damage, it would not fall in the same category as for example spray painting. Or is it? Interesting, since many locales allow chalk sidewalk drawings as a form of street art/perormance.
Or does it rely on words? Obscenities are not always covered by free speech.
“The state’s vandalism law dos not mention free speech.” Well, it does not mean that free speech is overridden by the law, does it?
IANAL (though not for lack of trying), but I think the trial is to determine whether the person engaged in actions that broke the law. Whether the law should exist is an issue that can be raised on appeal, but above the trial court’s pay grade.
In other words, the defense strategy would be to invite jury nullification, and they aren’t supposed to do that.
Nobody is denying he has a right to free speech.
The vandalism law says causing damage to express that free speech is illegal.
The issue is whether chalk is damage. Thus, content is irrelevant.
The courts decided it was not, but the law has changed since then.
So the question is still, is chalk “defacement”? Or does the damage need to be more permanent?
There is the “free speech” issue to be raised (later, on appeal, if the judge refuses to hear it in his court) to argue that the damage from chalk on public sidewalks is minimal enough that it should not be allowed to infringe on the right to free speech. Especially if it is on the sidewalk, not on the building itself…
Yes, a judge may prohibit counsel - either the prosecutor or defense counsel - from raising certain points or making certain arguments if they are irrelevant, unduly prejudicial, obscene, illegal, etc. If the judge gets it wrong, counsel may appeal.
An anti-graffiti ordinance is typically, and ought to be, content-neutral. It doesn’t say you can’t believe something or share your views with people; it does say you can’t commit vandalism in doing so.
I personally doubt that using water-soluble chalk amounts to vandalism, but the judge or jury may think otherwise.
As I said earlier, in many cities you will find sidewalk artists who do chalk drawings. If these are not prosecuted for vandalism in that city but a written message is, then I see a free speech case itching to be appealed.