The trial of the year non-ended in a mistrial due to statements by the prosecutor. *sigh* Following air conditioning mishaps, illnesses, amended charged and everything else, it seems this trial is CURSED. According to a statement from the 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.

“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.


  1. Why don’t the prosecutors just drop this case or offer a plea where the guy pays a $500 fine? This county has nothing better to do with Taxpayers money than this. I hope the county has to pay CBLDF’s expenses after it is all said and done. This guy may not get a fair trial unless this is moved out of this county.

  2. I sure hope the motion to dismiss is granted. This thing should never have come to trial in the first place.
    The history of misconduct and abuses by the prosecutors in Rome is truly stunning. And now they’ve intentionally caused a mistrial, probably because they didn’t like the look of the jury *they* helped select…driving Gordon’s legal fees even higher.
    Eighty. Thousand. Dollars. Now, THERE’S the obscenity.

    Thank God for the CBLDF.

  3. “Why don’t the prosecutors just drop this case or offer a plea where the guy pays a $500 fine?”

    The CBLDF has a policy to only take on cases where the accused agrees not to accept a plea deal. If the accused will not agree to this stipulation, the CBLDF will not provide assistance. The vast majority of criminal cases are resolved through a plea bargain, especially misdemeanors. Because of this policy, the prosecutor is more or less forced to either drop all the charges or peruse the case to the fullest extent of the law.

  4. The way this should have gone down, in a reasonable society, is like this:

    Parent: Hey! You gave my kid a comic that has objectionable material in it!

    Retailer: Wow. I’m really sorry. It’s been a hectic day and someone must have made a mistake. Again, very sorry. Here are the age-appropriate comics. Please feel free to pick one that you think your child will enjoy.

    Parent: It was just a mistake? OK, thanks for your apology. Let me take a look at the other selections.

    My understanding is that the above pretty much took place, except for the third part.

    From everything I’ve been able to discern, this was an honest mistake that required nothing more than an apology to resolve. The fact that it’s gone on as long as it has is both a travesty of justice and a sad commentary on how irrational and unreasonable certain portions of our society are determined to remain.


  5. It sounds like if it was intentional, what the DA wants is to stall until they can get a plea. DAs aren’t in the business of conducting cases they are going to lose.

  6. What I don’t understand is why if the defense truly felt as though they had a jury that looked more defense oriented why they would push for the mistrial. Especially for something as insignificant as Lee telling the police that he had been through this before. I’m fairly certain Lee’s early conviction for selling pornography was common knowledge along with his subsequent civil lawsuit against the city.

    Chances are some on the jury already knew this. Because of the news of this mistrial, the chances are even greater that the next jury will know it.

  7. From what I gather, the defense felt the jury was in their favor because they’d eliminated everyone who had heard of the prior conviction or participated in any pro-censorship activity.

    The prosecutor broke his agreement with the judge and tainted the jury by mentioning the prior conviction in his opening statement. At that point, the jury was no longer necessarily in the defense’s favor.

    The judge has agreed that jurors will be disqualified if they’re aware of Gordon’s prior conviction or if they’ve followed any news coverage which mentions it.

    Unfortunately, because the coverage of the mistrial, by default, mentions it, that probably means that anyone who’s aware of the mistrial can’t serve either.

    I’m not sure how Gordon is supposed to get a jury trial…