Mistrial in Comic Book Case

In a previous post, I discussed the Gordon Lee comic book case. See Man Faces Prison for “Dirty” Comic Book.

The Comic Book Legal Defense Fund website reports that this case has been declared a mistrial:

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.” (source)

Congratulations to my First Amendment Lawyer’s Association brethren, Alan and Cory Begner who are serving as lead counsel for the defense.

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