CBLDF Files Motions to Dismiss Gordon Lee Case

Last Tuesday, the Comic Book Legal Defense Fund’s legal team filed motions to dismiss the long-running case against Georgia retailer Gordon Lee, arguing that the law under which Lee is accused is unconstitutional. CBLDF counsel also filed a motion to dismiss the accusation based on prosecutorial misconduct.

Gordon Lee stands accused of two misdemeanor counts of distribution of harmful to minors material (GA Section 16-12-103) for accidentally disseminating a copy of “Alternative Comics #2”, to a minor. The promotional comic features a scene that briefly depicts famed artist Pablo Picasso in the nude. Through the efforts of his legal team led by Alan Begner and Paul Cadle, the State dropped both felonies and three of the five misdemeanor counts Lee initially faced when he was charged early in 2005. Last April Lee was scheduled to go to trial to defend against the remaining misdemeanor counts but at the last moment prosecutors dismissed his case and drew up a new accusation to accommodate facts they had apparently discovered on the eve of trial. Lee was arraigned under the new accusation on May 19.

CBLDF counsel argues that the case against Lee must be dismissed because the State’s distribution of harmful to minors material law is unconstitutional. In the Memorandum In Support of Defendants Motions To Dismiss, counsel states:

“The depictions in the story are lawful and its distribution to minors lawful for the
following reasons:
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.”

Mr. Lee’s counsel has also filed a motion to dismiss the accusation based on prosecutorial misconduct. Showing a timeline that begins on October 30, 2004 when Lee allegedly disseminated “Alternative Comics #2,” the motion demonstrates that prosecutors repeatedly presented facts that they “knew or should have known” were false.

The motion argues:
“The District Attorney is guilty of prosecutorial misconduct for the following reasons:
a. It knew or should have known for approximately one and a half years that the allegations in the Indictment were false;
b. It allowed untruthful testimony to be presented in the Grand Jury, under oath;
c. It allowed untruthful testimony of the victim and the victim’s family to be presented to the Grand Jury;
d. It did not tell defendant’s counsel until a Sunday afternoon, eighteen (18) 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 motion asks the court:1) to order the District Attorney’s office to produce all statements, et al, considered in bringing the charges which they now admit were false; 2) to issue an order finding the DA’s office committed prosecutorial misconduct; and 3) to issue an order dismissing all charges against Mr. Lee.

To date, the Comic Book Legal Defense Fund has spent $60,000 defending Mr. Lee, with costs to rise with the filing of these motions and the upcoming motions hearing, which is currently scheduled for June 15.