6 ms·

Wait, so the judge can order the lawyer not to talk about free speech. That's like, a meta-violation of the first amendment. Not only can you not exercise your

by zhemao 13y ago

Wait, so the judge can order the lawyer not to talk about free speech. That's like, a meta-violation of the first amendment. Not only can you not exercise your 1st amendment rights, you can't even exercise your 1st amendment rights to complain about not being able to exercise your 1st amendment rights.

hga 13y ago
The judge's decision is a point of law which can be appealed. Appeals courts, at least in the US, are normally supposed to deal with issues of law and accept the findings of fact in the court of first instance.
shock-value 13y ago
I really don't see how first amendment rights apply to his situation. You can't spray paint over a billboard and then claim you're protected under the first amendment, for example. That being said, I don't even know that I'd consider writing with washable chalk to be vandalism. Maybe "littering" or something, considering how easy it is to wash off. Certainly nothing that should warrant any jail time (unless you're talking about a habitual repeat offender or something).
- ianterrell 13y ago
  > You can't spray paint over a billboard and then claim you're protected under the first amendment, for example. Why not? The court doesn't have to agree that your claim is valid. To prohibit you from even making that claim seems preposterous.
  - tptacek 13y ago
    The claim isn't relevant to the statute. At a jury trial, you're not allowed to make irrelevant arguments.
- xanderstrike 13y ago
  The article says he spent six months doing it a few times a week. I think that qualifies as a habitual repeat offender.
  - shock-value 13y ago
    Oh okay, I must have glossed over that line. 13 years is still way too much (obviously), but that guy should not be surprised that he's going to be prosecuted and receive some kind of punishment.
  - zhemao 13y ago
    He's only a repeat offender if what he's doing is actually an offense. I don't think you could consider chalking a public sidewalk to be a criminal offense, unless you're willing to say that a kid who draws a hopscotch pad on his/her neighborhood sidewalk is a juvenile offender.
- deleted 13y ago
  [deleted]
darkarmani 13y ago
Can you just mention that it is covered by the Bill of Rights or by the constitution without mentioning the Amendment directly?
- anigbrowl 13y ago
  A trial jury is supposed to decide factual questions, not legal ones. The judge tells them what the law is; the jury's job is decide whether the defendant committed a particular act, or not. Arguments over what the law means or what's constitutional take place in front of judges, not juries. That's why ajuries are sometimes asked to leave the courtroom temporarily in the middle of a trial, or the judge orders attorneys into chambers - one side objects to something the other is doing as a matter of law, and the argument takes place out of hearing of the jury, because there jury is not there to decide the legal question, only the factual one.
  - redblacktree 13y ago
    Unless they decide to nullify, which I might do in this case if I were a member of the jury. https://en.wikipedia.org/wiki/Jury_nullification https://en.wikipedia.org/wiki/Jury_nullification
anigbrowl 13y ago
Again, don't get your news from RT. How this works: defense counsel files a motion claiming a free-speech exception for D's actions. Judge looks at vandalism statute, finds that it doesn't conflict with First Amendment (and i should note here in passing that the First Amendment right is not unlimited; if you think it is, please give me your address so I can spray graffiti on your house). Now that the judge has issued his ruling on the law, he's disposed of the question and Defense counsel is forbidden to bring it up again. In criminal trials, the judge makes decisions about what are matters of law. The jury makes decisions about matters of fact, because the jury members are typically not trained in law, whereas judges are. If you lose a case and appeal, then in the appeal court you must make your argument to the appelate judges on points of law - there is no jury in an appeal court. So the appellant argues that in a case like this, the trial judge misread the law. On the other hand, you can't bring up issues of fact at appeal, absent new evidence; if the judge conducted the trial properly but a jury rendered a verdict you don't like, too bad - there are some exceptions to this, but they're highly unusual. Now, I don't know that I agree with the judge's decision in this case, because I'm not sure that an impermanent thing like a chalk writing ought to count as vandalism (although I haven't researched this or read the judge's decision onthat). But even though I may disagree with the judge's conclusion on law, the fact is that he's made his decision and now he wants to get on with the trial. The proper place to dispute that decision is in the court of appeals. defense counsel knows this perfectly well and probably has the appeal paperwork already written and ready to file, but it's easier to put on his shocked face for the public and hope that it raises awareness of his client's case.

by zhemao 13y ago

hga 13y ago

The judge's decision is a point of law which can be appealed. Appeals courts, at least in the US, are normally supposed to deal with issues of law and accept the findings of fact in the court of first instance.

shock-value 13y ago

I really don't see how first amendment rights apply to his situation. You can't spray paint over a billboard and then claim you're protected under the first amendment, for example. That being said, I don't even know that I'd consider writing with washable chalk to be vandalism. Maybe "littering" or something, considering how easy it is to wash off. Certainly nothing that should warrant any jail time (unless you're talking about a habitual repeat offender or something).

ianterrell 13y ago
> You can't spray paint over a billboard and then claim you're protected under the first amendment, for example. Why not? The court doesn't have to agree that your claim is valid. To prohibit you from even making that claim seems preposterous.
- tptacek 13y ago
  The claim isn't relevant to the statute. At a jury trial, you're not allowed to make irrelevant arguments.
xanderstrike 13y ago
The article says he spent six months doing it a few times a week. I think that qualifies as a habitual repeat offender.
- shock-value 13y ago
  Oh okay, I must have glossed over that line. 13 years is still way too much (obviously), but that guy should not be surprised that he's going to be prosecuted and receive some kind of punishment.
- zhemao 13y ago
  He's only a repeat offender if what he's doing is actually an offense. I don't think you could consider chalking a public sidewalk to be a criminal offense, unless you're willing to say that a kid who draws a hopscotch pad on his/her neighborhood sidewalk is a juvenile offender.
deleted 13y ago
[deleted]

darkarmani 13y ago

Can you just mention that it is covered by the Bill of Rights or by the constitution without mentioning the Amendment directly?

anigbrowl 13y ago
A trial jury is supposed to decide factual questions, not legal ones. The judge tells them what the law is; the jury's job is decide whether the defendant committed a particular act, or not. Arguments over what the law means or what's constitutional take place in front of judges, not juries. That's why ajuries are sometimes asked to leave the courtroom temporarily in the middle of a trial, or the judge orders attorneys into chambers - one side objects to something the other is doing as a matter of law, and the argument takes place out of hearing of the jury, because there jury is not there to decide the legal question, only the factual one.
- redblacktree 13y ago
  Unless they decide to nullify, which I might do in this case if I were a member of the jury. https://en.wikipedia.org/wiki/Jury_nullification https://en.wikipedia.org/wiki/Jury_nullification

anigbrowl 13y ago

Again, don't get your news from RT. How this works: defense counsel files a motion claiming a free-speech exception for D's actions. Judge looks at vandalism statute, finds that it doesn't conflict with First Amendment (and i should note here in passing that the First Amendment right is not unlimited; if you think it is, please give me your address so I can spray graffiti on your house). Now that the judge has issued his ruling on the law, he's disposed of the question and Defense counsel is forbidden to bring it up again. In criminal trials, the judge makes decisions about what are matters of law. The jury makes decisions about matters of fact, because the jury members are typically not trained in law, whereas judges are. If you lose a case and appeal, then in the appeal court you must make your argument to the appelate judges on points of law - there is no jury in an appeal court. So the appellant argues that in a case like this, the trial judge misread the law. On the other hand, you can't bring up issues of fact at appeal, absent new evidence; if the judge conducted the trial properly but a jury rendered a verdict you don't like, too bad - there are some exceptions to this, but they're highly unusual. Now, I don't know that I agree with the judge's decision in this case, because I'm not sure that an impermanent thing like a chalk writing ought to count as vandalism (although I haven't researched this or read the judge's decision onthat). But even though I may disagree with the judge's conclusion on law, the fact is that he's made his decision and now he wants to get on with the trial. The proper place to dispute that decision is in the court of appeals. defense counsel knows this perfectly well and probably has the appeal paperwork already written and ready to file, but it's easier to put on his shocked face for the public and hope that it raises awareness of his client's case.