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.

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?

Diamond Comic Book Distributors warned retailers not to give copies of ALTERNATIVE COMICS #2 to children. This is the free comic Georgia comic book retailer Gordon Lee stands accused of giving to a 6-year old and his 9-year old brother.

According to Alternative Comics Publisher Jeff Mason, Diamond made sure that all of their retailers knew that the book was intended only for mature readers. Diamond even sent out the following written warning to retailers:

Please don’t give Alternative Comics #2 to children without adult supervision!!
From Diamond Daily:

FCBD: Watch for Mature Readers Titles
Free Comic Book Day, Diamond Daily, Thursday, June 17, 2004

As in Free Comic Book Days past, all of the Gold Sponsor titles (those required to be in participating stores) are all-ages appropriate, in order to make certain that the event has a family-friendly character and to make it easy for stores to participate regardless of their regional standards.

The Silver Sponsor titles — being optional — are not required to be all-ages appropriate. As in the past, some are intended for mature readers only and were solicited as such.

As you receive your FCBD editions, be sure to bear in mind that the following titles were solicited as being for mature readers, and be certain to hand them out only to the appropriate customers.

Diamond No. Title

APR040027J ALTERNATIVE COMICS #2 FCBD EDITION (MR)
APR040041J ADVENTURES OF BARRY WEEN SECRET CRISIS ORIGIN FILE FCBD EDITION (MR)
APR040042J LOVE FIGHTS #1 FACING THE GODDESS FLIP BOOK FCBD EDITION (MR)

Gordon Lee is charged with two misdemeanor counts of Distribution of Harmful to Minors Material, each carrying a penalty of up to one year in prison and up to $1,000 in fines. The comic contains nudity and adult language. It’s unclear why Gordon Lee chose to give this particular book to young children, especially if he had been warned a head of time by the distributor that it wasn’t intended for children.

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.

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.

“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

“The first sentence in the comic book reads: ‘Brace yourself for a sex and absinthe fueled journey into one of the most exciting period in modern history.’ That’s not appropriate for a nine year old kid. I think that’s a no-brainer.”

District Attorney Leigh Patterson
February 10, 2005

Gordon Lee is a comic book retailer in Georgia. He is currently facing two misdemeanor counts of Distribution of Harmful to Minors Material, each carrying a penalty of up to one year in prison and up to $1,000 in fines. The charges stem from a Halloween 2004 incident in which Lee handed out an anthology comic featuring both female and male full frontal nudity to children.

He doesn’t appear to believe he did anything wrong. He insists that the book is not obscene or harmful to a minor. Though I don’t know if it’s actually obscene, I have no doubt that its not suitable for children. I disagree with Lee when he states that it is similar to the beautiful paintings of the Sistine Chapel.

Has he ever seen the Sistine Chapel?

The book Lee gave the kids (ages 6 & 9) not only shows full frontal nudity, it contains a reference to masturbation. In one panel, it even shows what appears to be an erect penis. There seems to be a difference of opinion whether the penis is actually erect or not. I would argue that if the issue must be debated, the book is not suitable for a child.

Compounding the problem for Lee is that he was convicted of selling pornography in 1993. I would think someone who had been convicted of selling pornography once before would be hyper-vigilant in not doing things like accidentally giving free comics that feature dick pictures to kids.

I honestly don’t understand just how his lawyers expect to defend his innocence in this case. The jury won’t be deciding if the law is valid or not, they will be deciding if Lee broke that law or not. The jury has to consider only the facts of the case, not the merits of the law. Arguing the merits of the law is something that should be brought up in the appeals, not the actual criminal case in front of the Georgia jury.

Do they honestly think a southern jury will have a hard time with a law that prohibits distributing porn to children?

Lee can claim that the comic was no more obscene then the Sistine Chapel or the Bible. The problem is the jury will be looking at the actual book Lee gave the two kids. I doubt many of them will see similarities to the Sistine Chapel or the Bible. I think he is going to have a hard time finding a sympathetic jury in northern Georgia. Especially when he seems to feel he did nothing wrong.

It would be one thing if Lee admitted it was a bone head mistake and apologized for his mistake. He’s not really doing that.

The Comic Book Legal Defense Fund (CBLDF) has already spent $80,000 on this case and expects to pay even more. They are urgently trying to raise more money. Like a lot of comic book nerds, I’ve donated money to them in the past. I don’t think I will be doing so again. Not this time.