In the wake of the mistrial and decision by the prosecution to refile charges against comic retailer Gordon Lee (see 'Whack a Mole Justice'), we caught up with Charles Brownstein, Executive Director of the Comic Book Legal Defense Fund, which is defending Lee in the case, to find out more about the latest developments. 

As a point of clarification, do you expect the DA to file the same two remaining misdemeanor charges that were to be tried this week?

Yes.  The DA has vowed to press on towards trial, and so it will have to be on the charges as they are currently constituted.

The attorney for the CBLDF said that he thought the DA had intentionally brought about a mistrial because of the jury that was seated.  Can you expand on that at all?

Sure. Basically, the defense had an unusually high number of jurors struck for cause -- because they had read an article from the Rome News Tribune that improperly linked this case with Gordon's prior conviction for selling adult comics to an adult, or they had participated in censorship campaigns or showed attitudes that would impede their ability to give a fair hearing of the facts of the case.

To step back and explain the procedure: a misdemeanor jury is made up of six people, who are selected from a pool of 12 candidates.  That pool of candidates is asked questions by the judge, the prosecutor and the defense about matters that would affect their ability to impartially hear the facts in the case.  If, during that process, they show that they cannot be impartial, they can be removed from the jury pool for that case for cause.  If a juror is removed for cause they're replaced with a new member of the general jury pool.  At the end of the process, each side is able to strike three jurors, and the remaining six will act as the jury for the case. 

Most of the strikes for cause are the result of a story about this case that ran last Sunday in the Rome News-Tribune that referred to Lee's previous conviction of distributing adult comics to an adult in a way that inappropriately linked the two incidents.  That story stated, 'This is not Lee's first go-round in these type of proceedings. In 1994 a Floyd County jury found him guilty of distributing obscene material.'  Our counsel moved that any jury member who had read that story be stricken for cause, because the story colors Lee's character in a light that could impede their ability to hear the evidence impartially.  The judge agreed, and did strike a number of potential jurors who had read the story. 

The reason is that Gordon's character isn't on trial -- the material is.  It is improper to enter the earlier conviction into this case, because it is not relevant to the facts at issue in the case, and can prejudice the jury against the defendant.

What are the next steps in this case--does the trial go through all the same steps, including pre-trial motions, that it did the first time around?

The next steps are still being weighed by counsel, although we expect to file a motion to dismiss based on this misconduct.  That, and any other motion, will need to be considered prior to a new trial.  From there, we'll proceed to trial directly.  We do not need to go all the way back to square one. That said, these next steps will be an added, unforeseen expense, but are a necessary response to this week's events.

The prosecutor's office seems to be going through a lot for two misdemeanor charges.  Can you speculate on why the Gordon Lee case is worth all this to them?

I don't speculate on the motives of prosecutors.  Although I would hope that Rome's citizens ask why their tax dollars are still being spent on this case, and why their DA has committed error so many times as to continually delay a trial.  From this point forward, I think it's pretty clear to everybody that any dollar spent on the case is a direct result of the prosecutors committing error.

What I think is most infuriating about this mistrial is that the District Attorney did exactly what he told the judge he would not do by injecting inadmissible character evidence into his opening statements.  Why would he tell the judge he wasn't going to do something and do exactly that five minutes later?  The result is that Gordon's name is not yet cleared, and both sides will have to spend more money taking this case to trial. 

For the Fund it's worth doing, because Gordon is not guilty of the crimes the state accuses him of committing, and his conviction would be detrimental to him and other retailers.  We believe in his innocence, we believe that the material is not obscene or harmful to minors, and we believe that it merits being defended.  We're here to defend the First Amendment rights of this business, and that means getting the best counsel and finding the money to pay for the best defense of cases that affect the rights we all depend on to do business.

I can't imagine why Rome's prosecutors believe this case is still worth pursuing.  Looking at the internet coverage and commentary, in the comics world and in Rome GA, we're not alone.    

I'm sure there are retailers out there wondering if the DA in their town would react similarly if they made a similar mistake (and gave a mature readers comic to a child).  What lessons can retailers take from this case?

I think the key lesson is to be careful with how you choose to display mature and adult material in your store.  It's wise to have policies in place to govern those matters, and to educate your staff about those policies. The Fund has published a resource guide called The Best Defense for our retailer members that includes a variety of helpful articles about those matters, and generally how to safeguard their stores against prosecution in the ways that they do business.  It was written by some of the country's leading retailers and is a great starting point for analyzing how to keep their business safe.

But even if you do everything right, don't make the mistake of believing it could never happen to you.  You just never know what error can occur or what kind of a sting can happen.  And that's why the Fund is here.  We want to offer the best preventative education and the strongest defense if a case should arise.

I think everyone is sickened by what Gordon is facing.  The fact that this case has hung over his life for three years and will likely cost six figures by the time it's all over is the real obscenity.  Especially because the reason it's gone on so long has been because of one mistake after another on the part of the prosecution.  Whether these errors are the result of malice or incompetence, the result is that more time and money must be spent to clear Gordon's name. That's unacceptable.  And if the Fund weren't here, he would need to spend that money from his personal resources or plead guilty to a crime he didn't commit.  That 's even worse.

The Fund's Vice President Joe Ferrara likes to refer to the Fund as business insurance, and to a large degree he's right.  No one ever thinks a legal catastrophe can happen to them, but just in case, it's wise to have policies in place as affirmative defenses and to mitigate the possibility of them happening.  And if it still happens, the Fund is here to help.  As you can see with this case, we will get the best counsel and we will fight a vigorous battle to defend our client and the rights of others who would be affected by a precedent. I don't mean that to be a commercial, but instead to demonstrate that this industry has invested in the health of the Comic Book Legal Defense Fund precisely so we can bring the strongest resources to bear in the defense of our field's First Amendment rights.  We're seeing how a prosecution can drag on in a way that can bankrupt any individual retailer.  A strong CBLDF ensures that a retailer facing this kind of crisis doesn't need to go it alone.

Contributions to the CBLDF can be made here.