Bent Corner

More details have emerged concerning the case against comic book retailer Gordon Lee. The Rome-News Tribune is reporting that Floyd County District Attorney Leigh Patterson met with Lee’s defense attorneys and came to an agreement:

Patterson said the case was dismissed after the district attorney met with Lee’s counsel and decided that a measure other than prosecution could be taken in resolving the case.

“He did a written apology to the victims in the case,” said Patterson.

It’s a shame this couldn’t have happened a long time ago. I’ve long held the opinion that this case should have been settled along time ago with a plea bargain agreement. It now looks as though that is the case.

Word out of the New York Comic Con is that all charges against Georgia comic book retailer Gordon Lee have been dismissed. Writer Neil Gaiman and Comic Book Legal Defense Fund (CBLDF) board member broke the news at a panel Friday evening.

CBLDF Executive Director Charles Brownstein spoke with Matt Brady at Newsarama about this latest development.

If you’ve been reading this blog for awhile, you probably know that my opinions about the Gordon Lee case differ greatly then most of the online comic book community. I don’t see Gordon Lee so much as a champion of the First Amendment, but as a comic book retailer that did something incredibly stupid. He allowed a comic book intended for adults (Alternative Comics #2) to get into the hands of a small child.

Does that mean I think he should go to prison? No, of course not. I do think he made a huge mistake.

One of my problems with this case has been that I never sensed any sort of remorse on the part of Lee. He allowed a comic that contained both male and female nudity and contained references to masturbation and oral sex to get into the trick-or-treat bag of a 6-year old child.

I believe that was an incredibly dumb thing to do.

It’s not like this was even the first time Lee had done something like this. He was convicted in the early 90’s of distributing obscene materials. Sandra Allen of Rome, Georgia became alarmed when her kid came home with comic books purchased from Lee’s comic book shop that she thought were pornographic.

Sandra Allen went to Gordon Lee’s comic book shop and found more of what she believed to be pornographic comic books on display to anyone entering the shop. Allen purchased two adult comics from Lee’s shop, Debbie Does Dallas and Final Taboo and took them directly to the Rome Police and filed a complaint.

My hope in all this is that Gordon Lee will be more careful when it comes to adult comic books.  Is that asking too much?

Charles Brownstein, Executive Director of the Comic Book Legal Defense Fund (CBLDF) was interviewed by his friend and Newsarama administrator Matt Brady. The purpose of the interview was to discuss the Gordon Lee trial. There was something said in the interview that I found interesting. Specifically, it’s something Brownstein said about why the trial ended in a mistrial:

Before the jury was brought in, lead counsel Alan Begner brought some motions before the judge, including an oral motion in limine asking the judge to instruct prosecutors that their witnesses could not admit statements referring to Gordon’s previous criminal conviction for selling adult comics to an adult.

The phrase “selling adult comics to an adult” refers to Gordon Lee being convicted in the early 90’s of distributing obscene materials. It’s a phrase that gets mentioned a lot. It’s normally followed with the explanation that this prior conviction has nothing to do with his current legal troubles because that involved an adult and this involves a very young child.

What if the two cases are more connected then it seems?

Sandra Allen of Rome, Georgia was the adult that Lee was convicted of selling obscene material to. She wasn’t a comic book reader. She wasn’t a reader of obscene material. She was a mother of a child that came home from Lee’s comic book shop with a comic that she judged to be pornographic. It bothered her that her minor aged child could somehow get his hands on something she felt was pornographic. She didn’t understand how the neighborhood comic book shop could sell her son something she thought to be obscene. She decided she would make a visit to the comic book shop and check things out for herself.

On November 1, 1991 Sandra Allen went to Gordon Lee’s comic book shop and found more of what she believed to be pornographic on display to anyone entering the shop. Allen purchased two adult comics from Lee’s shop, Debbie Does Dallas and Final Taboo and took them directly to the Rome Police and made a complaint.

Upon receiving the two books, Rome Police Officer Marshall Smith took the two books to Floyd County Superior Court Judge Robert Salmon. After reviewing the two books purchased at Lee’s store, Judge Salmon issued an affidavit stating that there was probable cause to believe that pornographic materials were being sold at Lee’s comic book store. Based on the affidavit and the two books, Judge Salmon issued a search warrant for Lee’s comic book shop.

Over 300 allegedly obscene books and magazines were found and seized at Gordon Lee’s comic book shop by Rome Police. Lee was eventually convicted. His conviction stemmed not from the seized books and magazines, but from the two books purchased by Sandra Allen.

The seized books and magazines were not part of Lee’s trial.

Technically it’s true that Lee’s prior conviction was for selling “adult comics to an adult“. The comics being Debbie Does Dallas and Final Taboo and the adult being Sandra Allen. What is often overlooked is the reason Sandra Allen even went to Lee’s comic book shop and purchased the obscene comics in the first place. It wasn’t because she was looking for titillating reading material for herself. She went there because she was angry that her juvenile aged child was sold a pornographic comic book by Gordon Lee’s comic book shop.

A mother was upset by something her child received from Gordon Lee’s store. Why does that sound so familiar?

From the Comic Book Legal Defense Fund:

Lee and his legal team, paid for by the Comic Book Legal Defense Fund, appeared in court this morning for jury selection and returned in the afternoon to begin the actual trial. Before the jury was brought in to begin the trial, lead counsel Alan Begner argued an oral motion in limine asking the judge to instruct prosecutors that they could not admit statements from their witnesses alluding to Lee’s character and previous legal actions Lee has been party to. Prosecutors assured the court that they had instructed their witnesses not to address Lee’s previous conviction for selling adult comics to an adult. Then during opening statements in front of the jury, prosecutor Tully said witnesses will testify that Gordon was defensive and that Gordon had told police, “I’ve been through this before,” a clear reversal of his earlier statement to the judge that prosecutors would not be entering such statements into the record.

Who would have guessed that instructions prohibiting witnesses from bringing up Lee’s previous conviction also included any statements made by Lee himself? I guess I can understand barring witnesses from mentioning that they knew that Lee was convicted in 1993 of “distributing obscene materials“. I wouldn’t have guessed this also included any statements made by Lee to the police. So much for, “You have the right to remain silent. Anything you say can and will be used against you in a court of law.”

Lee’s prior conviction was for selling two porn comics, Final Taboo and Debbie Does Dallas.

The trial for Georgia comic book retailer Gordon Lee is scheduled to start Monday. Lee will stand trial for two (2) misdemeanor counts of of distributing harmful to minors material. The charges stem from a Halloween 2004 incident in which Lee handed out copies of ALTERNATIVE COMICS #2, an artsy comic featuring both female and male full frontal nudity and language of a sexual nature to children.

The case has drug on for three years. The Comic Book Legal Defense Fund is managing Lee’s defense and has already gone through $80,000 defending Lee. They plan on spending at least another $20,000. That’s a lot of money for two misdemeanor counts. Especially when it is money that has been donated by comic book readers.

If Lee is convicted on both misdemeanor counts, he faces a maximum sentence of up to two years and $2,000 in fines. In a perfect world, this case would have ended along time ago with a simple plea bargain. The problem with that is Lee doesn’t seem to feel as though he did anything wrong. He has equated this comic book to the Sistine Chapel and even the Bible. Also, the The Comic Book Legal Defense Fund is managing Lee’s defense. They have a not-so-public policy of only taking on cases where the defendant agrees not to accept a plea deal in exchange of a lessor penalty.

I think this policy is dumb. It makes cases drag on a lot longer then they should and cost a lot more money then they should. This dumb policy is the reason I refuse to give any more money to the Comic Book Legal Defense Fund.

Though I am willing to apologize for this particular art book getting in the hands that found it offensive, I will adamantly agree that the book is not ‘harmful to children’ or ‘obscene.’ In my opinion, this book is no more offensive then viewing the beautiful paintings of the Sistine Chapel or reading one of the best selling books with stories of sex, lust and nudity known as the Bible.”

Gordon Lee February 07, 2005

What does the Sistine Chapel have in common with a comic where a nude Pablo Picasso is shown telling some naked chick to “Drink Penis“?

Georgia comic book shop owner Gordon Lee will be getting is day in court this week. I think I blogged about this case once or twice. I even got into some lively arguments about it on Newsarama. The Comic Book Legal Defense Fund (CBLDF) has spent a whopping $80,000 on the case and they are planning on spending yet another $20,000 before it is all over.

To read about the specifics of the case, you can go here.

The trial was scheduled to begin yesterday, but it had to be postponed due to a malfunctioning air conditioning system in the courthouse. Evidently justice is a dish best served cold. I seem to remember seeing old movies that take place in southern courtrooms. You see everyone sitting around in white linen suits fanning themselves with paper fans as slow moving ceiling fans oscillate overhead. Those were the days.

My feelings about this case are quite different then most comic book nerds. Imagine that. Though I don’t think Lee should go to jail, I do think he did the wrong thing when he allowed an adult themed book to get into the hands of a 6-year old.

I also think the CBLDF’s participation in this has actually exacerbated the case. In a perfect world, this case would have ended a long time ago with a plea bargain that included no jail time and maybe a $100 fine. Lee made a mistake, but it wasn’t the end of the world. Because the CBLDF is running the case, there can be no plea bargain. They have a policy of only taking on cases where the defendant agrees beforehand not to accept a plea bargain. Because of this, cases must either be dismissed outright by the prosecution or they must take the case to trial.

If a defendant does not agree to this no plea bargain condition, the CBLDF will not take on the case.

The CBLDF exists to defend against censorship of comic books. What happens if nobody is actually trying to censor comic books? We see them put all their resources into cases such as this.

Update: Not so fast. The trial has been postponed yet again. This time the judge is feeling ill.

A few weeks ago, I wrote another blog post about the Comic Book Legal Defense Fund. I wanted to calculate the efficiency of what they do with donations. When I was in the Air Force, there was a program called the Combined Federal Campaign. Every year you were “encouraged” to pick a charity out of a booklet so that a portion of your paycheck could be deducted and donated to the charity of your choosing.

There were hundreds of charities listed in the booklet. Along with the name of the charity and a short description of their mission, there was an efficiency rating. I believe it showed how much of the money they received in donations actually went to the very purpose of the charity. It was extremely useful information. I was surprised at how some charities were wasteful with their money.

I wanted to find something similar regarding the CBLDF. I couldn’t find anything. I decided I would try to calculate the numbers myself. I looked at various charity evaluation websites for some guidance. I found formulas that I could use in conjunction with information from the CBLDF’s IRS Form 990’s.

As it turns out, one of the formulas I found and used was in fact wrong. I found it on a charity evaluation website that incorrectly showed how to calculate the fundraising numbers the Better Business Bureau (BBB) recommends. Because of this, the fundraising percentages I posted were in fact too high. I’ve since corrected the formula and the numbers here have been corrected too.

The mistake was not intentional and I apologize for any confusion I may have caused.

I would encourage anyone that has ever donated money to the Comic Book Legal Defense Fund (CBLDF) to look into just how efficient they have been at spending your money. Remember, most of the money they spend every year comes to them in the form of tax-free donations from people like you and me.

Comic book nerds that don’t want our right to read comic books to be trampled upon by those that want to censor what we read.

A good place to start would be the GuideStar website. GuideStar gathers and publicizes information about tax exempt nonprofit organizations such as the CBLDF.

The CBLDF has 501(c)(3) status. That means the CBLDF is recognized by the Federal Government as being organized for the public benefit. Because of this, the CBLDF has been given tax-exempt status. Though they are exempt from actually paying taxes to the IRS, they are required to submit to a Form 990 detailing their finances. From these yearly IRS Form 990’s you can look into just how efficient the CBLDF is at spending the money.

The Better Business Bureau (BBB) has attempted to define a set of standards for charitable organizations. This is from the BBB’s Give.org website:

The BBB Wise Giving Alliance Standards for Charity Accountability were developed to assist donors in making sound giving decisions and to foster public confidence in charitable organizations. The standards seek to encourage fair and honest solicitation practices, to promote ethical conduct by charitable organizations and to advance support of philanthropy.

In measuring effectiveness of finances, the BBB recommends that charitable organizations spend at least 65% of total expenses on program activities. To discover what this amount is, take the amount located on Line 13 of the IRS Form 990 and divide it by the amount located on Line 17 of the same form. The result is the percentage of total expenses spent of program activities.

(Line 13 / Line 17) x 100 = the actual % spent on programing

CBLDF Program Activities

• 2005 - 52.4%
• 2004 - 39.7%
• 2003 - 40.6%
• 2002 - 53.5%
• 2001 - 47.3%

By looking at these figures, it appears that the CBLDF has not been very close to achieving this before mentioned 65% benchmark. Not to say that they have a legal requirement to actually spend a certain percentage of their money on what they proclaim to do. In this case, the preservation of First Amendment rights for the comic book community. Evidently unless it’s the First Amendment rights of Gary Groth or comic book publisher Fantagraphics, but I digress.

If the CBLDF isn’t spending the money on defending the First Amendment rights of the comic book community, where is the money going? The BBB suggests that no more than 35% of related contributions be spent on fundraising.

(Line 15 / Line 1a + Line 3) x 100 = the actual % of contributions spent on fundraising

CBLDF Fundraising

• 2005 - 27.3%
• 2004 - 32.0%
• 2003 - 44.9%
• 2002 - 20.0%
• 2001 - 17.3%

CBLDF spends a good amount of money on fundraising. By looking at the individual IRS Form 990’s (Line 44 Column D) much of this is due to the costs associated with travel and attending comic book conventions. When I have donated my money to the CBLDF in the past it has been at a comic book convention.

So what does all this mean? Hell if I know. Take from this what you will. Don’t take my word on any of the numbers presented here. Though I have attempted to be totally accurate in the numbers and figures presented, I am no mathematician. I may have screwed up some of the numbers. I don’t think I have, but I wouldn’t be surprised if I have. I would encourage anyone interested in this to go and look at the information for yourself.

It is after all very easily obtainable. I am not telling anyone not to donate to the CBLDF. I am only advising anyone that has donated to the CBLDF in the past or plans to donate to the CBLDF in the future to educate themselves about the CBLDF and what they really do with the money. Don’t rely on the same old CBLDF generated press release republished on all of the various comic book news websites and magazines to give you the entire picture. Those press releases are written to promote donations, not to convey all the facts.

Get the facts.

Update (24 July) - One of the formulas I used was wrong. I didn’t create the formula. I found it on a charity evaluation website that incorrectly showed how to calculate the fundraising numbers the Better Business Bureau (BBB) recommends. Because of this, the fundraising percentages I originally posted were in fact too high. I’ve since corrected the formula and the numbers here have been corrected too.

I’ve been participating in a lively discussion over on the Newsarama forum concerning the Comic Book Legal Defense Fund (CBLDF) and the Gordon Lee case. And when I refer to it as being lively, I of course mean that the discussion often breaks out into flame wars. The whole thing takes me back to Usenet circa 1994. What I find to be most peculiar is that people who claim to be such extreme lovers of free speech seem to have very little patience for anyone else’s free speech when that speech does not agree with their own.

What I have been mostly focusing on is the policy the CBLDF has of only taking on cases where the defendant agrees not to accept a plea deal in exchange of a lessor penalty. I thought this severely limited a defendants options. This is what FindLaw has to say about plea bargains:

The vast majority of criminal cases are resolved through a “plea bargain”, usually well before the case reaches trial. In a plea bargain, the defendant agrees to plead guilty, usually to a lesser charge than one for which the defendant could stand trial, in exchange for a more lenient sentence, and/or so that certain related charges are dismissed. For both the government and the defendant, the decision to enter into (or not enter into) a plea bargain may be based on the seriousness of the alleged crime, the strength of the evidence in the case, and the prospects of a guilty verdict at trial. Plea bargains are generally encouraged by the court system, and have become something of a necessity due to overburdened criminal court calendars and overcrowded jails.

I believe the CBLDF’s no-plea bargain policy causes cases to continue far longer and cost far more money then they really need to. For example, the Gordon Lee case. This case in currently in it’s third year and has cost $80,000 so far and it hasn’t yet even gone to trial. The CBLDF is asking for people to donate more money because the case will cost at least another $20,000.

That’s a lot of money for someone being charged with two (2) misdemeanors. Especially when the facts in the case are not in dispute. Gordon Lee does not deny that a 6-year old child was given an adult comic book featuring nudity and obscenities. His defense is that giving a child a comic book featuring nudity and obscene language shouldn’t be illegal and that the Georgia law making it illegal is wrong.

The other day I decided to email the CBLDF and ask them if it was in fact true. Did they have a policy to only take on cases where the accused agreed not to accept a plea deal. The next day I received a response from Charles Brownstein, Executive Director of the CBLDF.

Since Charles Brownstein has since posted the response he sent me in the Newsarama forum, I feel free to post it here as well:

Dear Mr. Rottman,

Thank you for your interest in the Comic Book
Legal Defense Fund.

It is the Fund’s policy to offer legal support
to cases accepted by the Board of Directors, and
our legal support is contingent on the defendant
having an affirmative not-guilty plea, and that
they do not opt to plea bargain.

The reason for the latter is because the Fund
does not set out to participate in creating
precedent that will be harmful to the First
Amendment rights of other retailers. A plea
bargain is a conviction that can be used as
precedent in other cases.

This policy simply formalizes a reality.
Retailers who would actively seek a plea bargain
from the outset wouldn’t be contacting the CBLDF
in the first place, because they wouldn’t be
incurring extensive legal bills. It is those
retailers who are not guilty of the crimes for
which they are accused, and who intend to make a
stand to prove their innocence, that ask for
support from the Fund.

Naturally, it is always the client’s choice to
do what is best for him or herself, and the
CBLDF respects that. Should a client accept a
plea bargain, the Fund does not withdraw or
require reimbursement of the funds spent on the
case. But it is our position that we exist to
protect the First Amendment rights of both the
defendant and the industry at large. The best
way to defend other retailers against later
legal prosecution is to see a case through to
trial wherever possible, so as to ensure that a
harmful precedent is not set by a plead
conviction.

I hope that this speaks to your concern and I
thank you again for the interest in the Fund.

–
Charles Brownstein
Executive Director
Comic Book Legal Defense Fund
271 Madison Ave
Suite 1400
New York, NY 10016

He mentions that the CBLDF does not require a client that accepts a plea bargain to reimburse them for the funds spend. The inference is that this is something they could do if they were so inclined to do so. I maintain that it is not. They do not have the power to do this. A defendant cannot be penalized for looking out for their own best interests. This certainly includes not going to prison. Sometimes a defendant’s best option is to accept a plea deal, especially when it means not going to prison. A defendant that accepts assistance from the CBLDF may very well feel obligated not accept a deal even though it is clearly in their best interest.

When a defendant is facing the possibility of going to prison, their first priority should be to themselves and to their own freedom. It should not be to the legal precedent the plea bargain may or may not cause. It’s not like any of the board members of the CBLDF have to worry about going to prison.

I honestly cannot understand what the CBLDF is trying to prove in this case. It’s not as though anyone is trying to ban comic books that show nudity or contain obscene language. The prosecutor’s contention is simply that comics such as this shouldn’t be given to small children. I totally agree.

I was doing some reading on the Comic Book Legal Defense Fund’s website and discovered something interesting. It concerns a 1997 case involving Oklahoma City comic book retailers Michael Kennedy and John Hunter. Undercover police officers entered their store on two different occasions and purchased copies of Verotika #4, a comic book featuring “erotica from Hell”.

Seriously, that’s what it says on the publisher’s website- “erotica from Hell”.

A subsequent raid found other books at the store that the police had problems with. Some of these books included Mighty Morphing Rump Rangers and The Devil’s Angel, a book supposedly featuring cartoon child pornography.

Both men were charged with multiple felony counts of trafficking in obscenity and faced up to 45 years in prison. The Comic Book Legal Defense Fund agreed to take on the case and arraigned to pay the men’s legal fees. The case never went to trial.

This is from the CBLDF website:

Rather than risk imprisonment and a permanent felony record, the retailers agreed to plead guilty to the two felony charges. In exchange, they were granted a three-year deferred prison sentence and a fine of $1500 each. Kennedy and Hunter will serve no jail time if they are not convicted of any further criminal activities for a period of three years. After that time, the felonies will be permanently removed from their records.

This action was undertaken without notifying the CBLDF. It is the Fund’s policy to only take on cases where the accused individuals agree not to plead guilty in exchange for reduced penalties. “To say that we’re all disappointed is an understatement,” said Susan Alston, then executive director of the CBLDF. “In human terms, we all share a sense of relief that Kennedy and Hunter’s ordeal is over. But that in no way diminishes the fact that they were convicted in violation of their rights as Americans under the First Amendment.

Evidently when you receive assistance from the CBLDF there are strings attached. Your first obligation isn’t to stay out of prison. No, it’s to ensure your case goes all the way to trial. In exchange for CBLDF assistance you seemingly have to agree that you will not accept a plea deal even if it keeps you out of prison. What this policy does is cause cases to drag out longer then they normally should. It also might land you in prison.

Don’t let the HBO show Oz fool you. Prison is not fun and it should be avoided at all costs.

Most criminal cases don’t end in a lengthy and expensive jury trial. Most end with some sort of plea bargain. That’s why prosecutors start by charging a defendant with as many charges as the evidence allows. That way they can whittle down the charges and offer the defendant a deal. It’s called justice American style. It’s faster, cheaper, and more or less gets the job done.

If a defendant feels as though he is obligated to reject any deal a prosecutor offers no matter how attractive the terms, they aren’t looking out for their own best interests. This ensures the case will go to trial. That means the case takes longer and it will cost a lot more money then it really should. It also carries the risk of going to prison.

I find it ironic that the folks at the CBLDF were “disappointed” that the two men broke their promise not to accept a plea bargain. Who would have thought you couldn’t trust guys that sell such fine comic books as Mighty Morphing Rump Rangers?