Prosecutorial Misconduct In Gordon Lee Case Results in Mistrial

Posted by Dustin Christian

November 6, 2007

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For a history of comic store owner Gordon Lee’s case as well as some context to the prosecution’s misconduct, you can view the CBLDF’s summary here.

What follows is the official press release from the Comic Book Legal Defense Fund (CBLDF):

The case against Gordon Lee took another in an ongoing series of bizarre turns this afternoon when statements made by State prosecutor John Tully during opening arguments led to a mistrial.

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.

When Tully made his statement, defense counsel stared at each other in disbelief before Begner leapt up to demand a mistrial. Judge Larry Salmon put his head in his hands and called a 15 minute recess.

Upon returning to the courtroom, as a result of Tully’s statement, Salmon declared a mistrial, because the statements alluding to the prior incident contaminated the jury beyond repair for a fair trial.

“This is a victory, but we wish it was over,” said CBLDF lead counsel Alan Begner. “We believe that prosecutors induced this mistrial on purpose, because we had a jury that looked more defense oriented. We’re prepared to quickly file a motion to argue that no new trial should be scheduled because this mistrial was intentional and constitutes prosecutorial misconduct.”

Begner adds, “Time and again we’ve been here and have been told to go home because of the prosecutors’ actions. Meanwhile, it’s Gordon who suffers. It’s been three years since this case began, and for three years Gordon has had this hanging over his head. Today his good name is still not cleared.”

Lee’s trial comes after three years of legal action arising from the Halloween 2004 distribution of Alternative Comics #2, a Free Comic Book Day sampler which featured an excerpt from the critically acclaimed graphic novel The Salon that depicted Pablo Picasso in the nude, and was allegedly handed to a minor. The CBLDF has spent over $80,000 on Lee’s defense since taking the case in early 2005, and expects costs to reach six figures by the end of the trial. The case has been ready for trial three times – the first, in April of 2006, when prosecutors dismissed and re-filed the charges because their facts were wrong; the second last August when the judge’s illness led to a rescheduling; and today when statements made by the prosecutor led to a mistrial. To date the Fund has spent over $80,000 on the defense.

“Never in the Fund’s history have we seen prosecutorial conduct of this nature,” says CBLDF Executive Director Charles Brownstein. “We’re dumbfounded by prosecutors assuring the court that they weren’t going to do something, and then doing exactly that thing five minutes later. Every step of the way they have been adding further expense to Lee’s defense, first by changing their facts, then by entering new indictment after new indictment, and today by contaminating the jury. Nobody, especially a small retailer, can bear this kind of expense on their own. Today’s action is clear evidence of why the Fund needs to be around to protect comics.”

The next step for the case is uncertain, but could see trial again in 2008.