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Dead Constitution See other Dead Constitution Articles Title: Mention the President, Lose a Case? Defense motion to ban George W. Bush's name at trial defeated Apparently President George W. Bush is now so unpopular that some lawyers believe the mere mention of his name in front of a jury could tip the scales against them. Attorneys Michael P. Laffey and Robert P. DiDomenicis of Holsten & Associates in Media, Pa., are defending Upper Darby Township, Pa., in a civil rights suit brought by Harold Lischner, an 82-year-old doctor who claims he was falsely arrested for displaying an anti-war sign at a Bush campaign event in September 2003. With the case set to go to trial on July 23, the defense lawyers recently filed a flurry of motions, including one that asked Eastern District of Pennsylvania Judge Gene E.K. Pratter to prohibit the plaintiff from mentioning Bush's name. The motion in Lischner v. Upper Darby Township said that according to the latest Newsweek poll, Bush has "the worst approval rating of an American president in a generation," and that 62 percent of Americans believe that Bush's handling of the war in Iraq shows that he is "stubborn and unwilling to admit his mistakes." Laffey and DiDomenicis argued that "the identity of George W. Bush has no relevance to plaintiff's claim and should not be admitted." Any "probative value" of Bush's identity, they argued, "is substantially outweighed by the danger of unfair prejudice to defendant." Bush's identity, they argued, "in and of itself, presents the danger that the jury will favor plaintiff." As a result, the defense lawyers said, "it will be sufficient for plaintiff to testify that he displayed a sign in opposition of a 'presidential candidate.'" In separate motions, the defense team urged Pratter to prohibit any mention of the First Amendment -- since Lischner's suit is premised only on the Fourth Amendment -- and to bar any testimony about the message on Lischner's protest sign. In response, Lischner's lawyers -- David Rudovsky and Jonathan H. Feinberg of Kairys Rudovsky Messing & Feinberg -- complained that the defense team was asking for "extraordinary limits" that simply couldn't be justified. Taken together, they argued, the defense motions were asking the court "to preclude testimony on all of the important facts in this case and apparently envisions a presentation during Dr. Lischner's case limited to testimony that Dr. Lischner was displaying an unspecified sign in opposition to an unspecified political candidate." In civil rights suits, the plaintiff's team argued, it is an "accepted principle" that the plaintiff "must be given leeway to provide the jury with narrative background of the case." In Lischner's case, they argued, the First Amendment, the message on his sign, and the "target" of his message -- Bush -- are "essential to the proof of Dr. Lischner's damages." Now Pratter has sided with the plaintiffs lawyers, saying "the court disagrees that what Upper Darby proposes is a viable approach." Pratter found that the message on Lischner's sign and Bush's identity, as well as the circumstances surrounding his visit -- including the war in Iraq and Bush's bid for re-election -- are "relevant to the determination of probable cause and to the adequacy of Upper Darby's training and policies." All relevant evidence is "generally admissible," Pratter said, and "the president's identity and Dr. Lischner's opposition to the war in Iraq -- presumably as evidenced by the text on his sign -- are relevant because they are part of the circumstances weighing on the probable cause analysis conducted by Officer [Michael] Kehrle." According to court papers, Bush came to Upper Darby on Sept. 15, 2003, for an event with local supporters at the Drexelbrook Catering Facility, located within a privately owned residential community. It was a private, by-invitation-only event, but Drexelbrook had designated an outdoor space on its property for members of the public to observe the arrival of the president's motorcade. However, Drexelbrook Associates instructed the Upper Darby Police Department that neither protesting nor the displaying of signs would be permitted on its property. Lischner, then 78 years old, was one of the 50 members of the public gathered along the driveway and had placed a torso-sized sign on the front of his chest with a message that stated: "Withdraw our troops from Iraq. Give the $87 billion to the Iraqi governing council and U.N. for immediate relief and repair of the destruction we caused." The suit alleges that Kehrle told Lischner that no signs or demonstrators were permitted, and that he would have to leave the premises if he did not remove the sign. When Lischner repeatedly refused to remove the sign or leave, Kehrle arrested him on charges of defiant trespass. Lischner was later found not guilty of disorderly conduct -- the crime with which he was eventually charged -- and filed a civil rights suit alleging that the arrest was without probable cause. In a previous ruling, Pratter refused to dismiss the suit, finding that the conditions imposed by Drexelbrook were illegal and that a jury must decide "whether Upper Darby had a policy, practice or custom of enforcing the landowner's unlawful condition." Also to be decided by the jury, Pratter said, is "whether Upper Darby failed to adequately train its police officers and such failure to train caused Dr. Lischner's constitutional injury." Now Pratter has ruled that, at trial, Bush's identity has legal significance because it bears directly on the legality of Upper Darby's policies. "The facts that the political candidate was not only a candidate for arguably the most important office in our government, but also the current president participating in a campaign for re-election, were important to the court's determination that the condition imposed by Drexelbrook was illegal and, thus, relevant to the probable cause determination." The text of Lischner's sign is also legally significant, Pratter found, because "the fact that Dr. Lischner's sign was not blatantly offensive or disrespectful, and certainly not aimed at inciting violence or some other physical disruption, is relevant to whether probable cause existed." As a result, Pratter rejected Upper Darby's argument that the "probative value" of Bush's identity and the text of Lischner's sign is outweighed by the danger of "unfair prejudice." "There is no requirement that trials be made up of the blandest theories, facts and arguments available," Pratter wrote. "By the same token," Pratter said, "trials are not stages set for sensationalism, and the court intends to guard against this trial becoming a platform for public polemics." Subscribe to The Legal Intelligencer
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#1. To: Zipporah (#0)
Utterly bogus. The mention of Bush (and Bush's unpopularity) is far more likely to help the defendant, not hurt him.
It's the other way around. He's suing the town for arresting him for protesting Bush's visit. The town doesn't want the jury to know he was protesting Bush.
Which is why it doesn't make any sense for him to ask that the jury never hear the name Bush. Unless I've misread the story, the defendent is on trial for breaking the law as part of his protest, and requested that the prosecution be prohibited from mentioning Bush's name, based on the theory that Bush's unpopularity would hurt the defendant (who was protesting against Bush in the first place.) It's an absurd argument.
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