Jun 302013

Judge Howard Shore of the San Diego Superior Court.

Okay, so some people might disagree with what the defendant did, but that’s not to say he shouldn’t be allowed a full defence in his criminal trial on 13 charges of vandalism.

Jeff Olson, a left-wing anti-bank political activist (gack) had been scribbling messages such as ‘Stop big banks’ on the sidewalk outside Bank of America branches in San Diego, using chalk to do so.  You know – what kids use, sidewalk chalk, the stuff that can be washed off or which just ‘disappears’ all by itself in double quick time anyway.

Rather unbelievably, one of the Bank of America branches claimed it had cost them $6,000 to clean up the chalk slogans.  Presumably the bank can do this if it wishes, although the city not the bank owns the sidewalk outside the bank building.

After pressure from the bank, the City of San Diego agreed to bring 13 charges of vandalism against the sidewalk chalker.

Which brings us to our headline.  In a pre-trial motion hearing, Judge Howard Shore granted the city’s motion to prohibit the defendant from claiming or even mentioning any rights possibly extended to him under the First Amendment.

The learned (?) judge said that because California’s Vandalism Statute didn’t specifically provide an exemption for First Amendment rights/claims, that means that a First Amendment based defense would not be allowed in his court.

Now, goodness only knows that we’re not attorneys, but we do remember from our law school days a quaint notion being that the Constitution (including all Amendments) was the Supreme Law of the Land.  And no matter what lesser federal, state, county and city laws might or might not say, they could not ignore or overrule the Constitution.

Perhaps Judge Shore skipped class the day this was taught.

It is also surprising that the Judge has prohibited even mentioning the First Amendment in the trial.  It may well be that the First Amendment doesn’t apply to the facts of this particular case, but to prohibit it being raised is an unfortunate decision.

But wait, there’s more.  After word of his ruling filtered out of the court-room, the judge found himself facing a tidal wave of criticism – from the defendant and his attorney of course, from the public, from media, and even from the Mayor of San Diego.

So the judge’s next step was to forbid the defendant or his attorney from talking about the case to anyone!

Secret justice?  That’s an oxymoron, and is totally the opposite of our American notions of the need for justice to proceed in an open court, holding all parties accountable to public scrutiny and review.

That’s another class that Judge Shore may have skipped.

Here’s some background on the case, and here’s a report of the judge’s first decision banning the First Amendment, and here’s a report of the judge’s gag order.

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