Georgia retailer Gordon Lee is back in court for a hearing with two motions to dismiss today. The case has been in the court system since 2004. The CBLDF provides a complete run down of the state of the case:
This Thursday, October 5, the long-running case of Georgia v. Gordon Lee goes back to court for a Hearing on Motions. This is the second such hearing in a case that has run for nearly two years, seen three arraignments, and at least two sets of facts, all arising from the same 2004 incident. To date the Fund has spent roughly $70,000 defending Lee’s case.
Lee faces two misdemeanor counts of Exhibition of Harmful Materials to a Minor (OCGA 16-12-103). These are the remaining counts after the Fund successfully knocked out the two felony counts of distributing material depicting nudity or sexual content, and five misdemeanor counts of Exhibition of Harmful Materials to a Minor. If convicted under these remaining misdemeanor counts, Lee faces penalties of up to a year in prison and up to $1,000 in fines for each count.
The motions to be argued are: Motion to Dismiss on grounds that the State Harmful to Minors law is unconstitutional, a memorandum in support of that motion, and a Motion to Dismiss based on prosecutorial misconduct. Two Demurrer and Motion to Quash documents; another motion to quash, and two procedural motions are also to be heard.
Lee’s case began during Halloween week 2004, when Gordon Lee’s comic shop, Legends, of Rome, GA, participated in a trick-or-treat event in downtown Rome by distributing free comics. “Alternative Comics #2,” the Free Comic Book Day edition from art comics publisher Alternative Comics for 2004, was inadvertently included in the mix of books being given away. The comic was a single copy among thousands of comics being given away that day, and was accidentally handed to a minor, whose parent filed a complaint with the police.
The comic book features a variety of stories from the company’s line, including an excerpt from Nick Bertozzi’s “The Salon” depicting the first meeting between Georges Braque and Pablo Picasso. On three pages of the eight page section, Picasso is depicted in the nude, a factually accurate detail for the period during which the story is set. There is no sexual content in the story. Upon learning of the error in distributing the comic, Lee admitted that a mistake was made and apologized for the first of many times. Those apologies were rejected, and days later, Lee was arrested.
Since then, the case has traveled through a motions hearing last December where the Fund successfully knocked out all but two of the seven counts Lee faced. Lee’s case then advanced to trial where charges against him were to be dismissed because prosecutors claimed they named the wrong victim. A second set of charges was brought last Spring, to reflect the new accusation, and which was later to be dropped. To date, neither set of charges has been formally dismissed.
A third set of charges was brought in July, to which the motions were filed in response. Lee currently faces two counts of Exhibition of Harmful Materials to A Minor, which read:
And the grand jurors aforesaid in the name and behalf of the citizens of Georgia charge and accuse Gordon Clifford Lee with the offense of EXHIBITION OF HARMFUL MATERIALS TO A MINOR (OCGA 16-12-103) for that the said accused on the 30th DAY OF OCTOBER, 2004, in the County aforesaid, did unlawfully then and there, knowingly furnish and disseminate to a minor, to wit: XXXX XXXX XXXX AND XXXX XXXX XXXX, a book, pamphlet, magazine and printed matter containing pictures, drawings and visual representation and images of a person and portion of the human body which depict sexually explicit nudity, sexual conduct, and sadomasochistic abuse and which is harmful to minors, contrary to the laws of this State, and the good order, peace and dignity thereof.
And the grand jurors aforesaid in the name and behalf of the citizens of Georgia charge and accuse Gordon Clifford Lee with the offense of EXHIBITION OF HARMFUL MATERIALS TO A MINOR (OCGA 16-12-103) for that the said accused on the 30th DAY OF OCTOBER, 2004, in the County aforesaid, did unlawfully then and there, knowingly furnish and disseminate to a minor, to wit: XXXX XXXX XXXX AND XXXX XXXX XXXX, a book, pamphlet, magazine and printed matter containing explicit and detailed verbal descriptions and narrative accounts of sexual excitement, sexual conduct, and sadomasochistic abuse and which taken as a whole is harmful to minors, contrary to the laws of this State, and the good order, peace and dignity thereof.
The Demurrer and Motion to Quash motions pray that the court dismiss the case on several grounds.
The second indictment, seen above, fails to identify any harmful material that Mr. Lee is accused of distributing, which does not sufficiently apprise him of what he should be prepared to meet, and renders him unable to prepare his defense or to submit to the court the question of whether he should be required to answer the charge. Further, the new indictment does not describe the offense so plainly that the nature of the offense charged may be easily understood by the jury.
The prosecutors failed to dismiss either of the two earlier cases, including the original indictment, which they admitted before the judge was based on false information.
Further, though prosecutors told the judge that the comic was distributed not to the originally named boy but to his younger brother, the new accusation and later indictment name both the original boy and his younger brother in the conjunctive. In doing so, the prosecutors have failed to name an alleged victim, rendering Mr. Lee unable to prepare a defense.
The new indictment fails to adequately charge Mr. Lee with an offense against the laws of the state of Georgia. This indictment omits the words “taken as a whole” from the charges, failing to meet the standards of violating the Harmful to Minors statute as prosecutors allege. Mr. Lee’s attorneys pray:
a) that these demurrers be inquired into;
b) that they be sustained;
c) that each count of the first Indictment, filed on February 25, 2005 be quashed;
d) that each count of the Accusation, filed on April 3, 2006 be quashed; and
e) that each count of the second Indictment, filed on June 2, 2006 be quashed
The Motion to Dismiss on grounds of Prosecutorial Misconduct claims that the District Attorney is guilty of prosecutorial misconduct given that for the eighteen months the case against Lee was being prepared; it should have known that the allegations made in the Indictment against Lee were false. Additionally, according to the motion, the CBLDF held that the DA is guilty of prosecutorial misconduct because: it allowed untruthful testimony to be presented in the Grand Jury, under oath; it allowed untruthful testimony of the victim and the victim’s family to be presented to the Grand Jury; and it did not tell defendant’s counsel until a Sunday afternoon, eighteen hours prior to trial, that the allegations contained in the Indictment were untrue, after much time and expense was incurred bringing out-of-state witnesses to Rome for trial.
The prosecutorial misconduct motion asks the court to: order the District Attorney’s office to produce all statements, et al, considered in bringing the charges which they now admit were false; to issue an order finding the DA’s office committed prosecutorial misconduct; and to issue an order dismissing all charges against Mr. Lee.
The motion to dismiss the misdemeanors on constitutional grounds argues that Georgia’s harmful to minors law is unconstitutional. In the Memorandum In Support of Defendants Motions To Dismiss, counsel states: “the depictions of Picasso in the story are lawful and thus the distribution to minors is lawful because:
1) The depictions and story are non-obscene protected material pursuant to the First Amendment of the U.S. constitution;
2) The State has no legitimate interest in banning non-obscene, non-sexually explicit nudity to minors under due process;
3) The proscriptions at issue, as applied to this material, in so far as it requires warning labels, ignores the fact that material with nudity, but not sexually explicit conduct is distributed throughout Floyd County without prosecution, in violation of equal protection guarantees;
4) The proscriptions at issue, as applied to this material, is arbitrary and capricious, in violations of due process;
5) The proscriptions at issue are overbroad because they make illegal material with simple nudity which were not intended to be proscribed, and for which the government has no legitimate reason to make illegal; and
6) The terms used in §§ 16-12-81 and 16-12-103 are vague because they fail to notify citizens and law enforcement as to what material (if any) with simple nudity is prohibited.”
“This is a case where an apology should have sufficed,” says CBLDF Executive Director Charles Brownstein, “and instead a man’s livelihood and freedom have hung in the balance for what is going on two years. Gordon has been systematically overcharged and harassed by Rome’s prosecutors, and it is our hope that under these very well considered motions, Lee will finally be cleared of charges that should never have been brought to begin with.”