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FreeRepublic , LLC PO BOX 9771 FRESNO, CA 93794
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Posted on 07/17/2003 1:07:09 PM PDT by Brian S
COLUMBUS, Ohio July 17 — A state appeals court on Thursday dismissed the guilty plea of a man imprisoned for writing fictitious stories of child torture and molestation.
Lawyers specializing in the First Amendment believe Brian Dalton was the first person in the United States successfully prosecuted for child pornography that involved fictional writings, not images.
The 10th Ohio District Court of Appeals in Columbus ruled that Dalton received ineffective legal assistance. Dalton had argued that his former lawyer didn't inform him of the legal implications of a guilty plea or ask for an immediate dismissal on First Amendment grounds.
The 3-0 ruling sends the case back to Franklin County Common Pleas Court. Dalton could still be tried but prosecutors have not said whether they would seek to do so.
Ray Vasvari, the American Civil Liberties Union's state legal director in Cleveland, called the decision an "important recognition for not only freedom of speech but freedom of thought."
Dalton, 24, of Columbus, pleaded guilty in July 2001 to pandering obscenity involving a minor, which falls under Ohio's pornography law. He later asked to withdraw the plea so he could challenge the constitutionality of the law, but Franklin County Common Pleas Judge Nodine Miller refused. ACLU attorneys then appealed.
Miller had sentenced Dalton to seven years, plus 4 1/2 years from a 1998 child pornography conviction on the grounds he violated probation by possessing the journal.
The 14-page journal contained stories about three children ages 10 and 11 being caged in a basement, molested and tortured. Prosecutors acknowledged the stories were pure fiction.
The journal was found by Dalton's probation officer during a routine search of his home.
Dalton was charged under Ohio's 1989 child porn law, which bans possession of obscene material involving children. He was not charged under Ohio's obscenity law, which requires dissemination and not just possession.
The appeals court found that Dalton's defense attorney, Isabella Dixon, misunderstood the two charges against her client.
Both charges were based on the journal and involved fictitious events, the court found. Dixon, it said, had erroneously believed one of the charges was based on a letter Dalton wrote describing sexual molestation of a young cousin, a real person.
"This misunderstanding was significant because of the important differences in the constitutional protections afforded the private possession of pornographic depictions of real children and similar depictions of fictional children," Judge William Klatt said, writing for the majority.
A message was left with Dixon seeking comment.
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FreeRepublic , LLC PO BOX 9771 FRESNO, CA 93794
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It is in the breaking news sidebar! |
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99% of lawyers make the rest (like this guy's "former lawyer") look bad.
If you love liberty & hate big Govt then you should be overjoyed with this latest decision.
Most lawyers don't like to defend the comic book industry (the ACLU certainly doesn't, never has), this may be why they are unfamiliar with the case of Mike Diana. That industry has it's own hired hands, the Comic Book Legal Defense Fund.
Mike was convicted of obscenity (and some of his work involved children). He did distribute his creations.
Part of his probation sentence prevented him from drawing anything. He was subject to surprise inspections.
It wasn't that he was distributing his work to minors, it was that he was creating and distributing such material at all.
In 1994, underground cartoonist Mike Diana was thrown in jail for 4 days without bail on obscenity charges, for publishing, advertising, and selling his zine BOILED ANGEL. Mike was on probation for 3 years, terms of which included fines of $3000, no contact with children under 18 (or within 10 feet of a minor), 1280 hours of community service, maintain full time employment, and at his expense, see a psychiatrist and take journalism courses at his own expense; AND no drawing for his own personal use... his home was subject to unannounced searches by local police to make sure he was complying. Mike Diana is now serving another 2 years of probation, including $2000 in fines, and the same probationary terms.On June 4, 1996, a ruling issued by Largo, Florida, Circuit Judge Douglas Baird declared Mike Diana's zines, Boiled Angel #7 and #ATE as obscene. The judge emphasized throughout Mike's ruling that he personally found Diana's comics "patently offensive." Referring to Diana as "the appellant," and stated, "The evident goal of the appellant's publication is to portray shocking and graphic pictures of sexual conduct so it will be noticed. If the message is about victimization and that horrible things are happening in our society, as the appellant alleges, the appellant SHOULD HAVE created a vehicle to send his message that was not obscene."
Maybe someone could re-release "Seduction of the Innocent" and add a chapter about Diana.........
He discussed the content in Robert Crumb's work for a couple of pages but didn't seem too upset by it.
This was exactly what Diana was doing, self-publishing these grotesque comics. Crumb is a more accomplished artist (although some libs are still outraged by some of his older work which included some incestuous momements, misogyney, and racism). Mike Diana got "caught" doing what he did because he was using his employer's equipment (a school?) to print his works originally.
Even when he later printed his book, he had to hunt around to find a publisher who would print all of the pages.
State pays ACLU's lawsuit costs (ACLU makes $700,000 blocking Ten Commandments and pushing abortion)
County To Pay For Calling Former Gang Member A Gang Member (Man faces attempted murder charges) ^
A google news search brings up legal fee payments to the ACLU all the time.
Not only do we have to put up with judicial tyranny, we are forced to pay to have it inflicted upon us.
If you really want to see somethng that is really sick, and should be prosecuted to the furthest extent of the law as child pornography, pick up a copy of the movie "The Aristocrats". This is a so-called documentary about a long held joke called the Aristocrats. It's nothing but a piece of child pornography, and stars many of Hollywood's famous. These liberal good-for-nothing perverts should all be sent to prison for involvement in the making of this trash. The movie verbally depicts child sexual molestation, sodomy and incest. These "stars" brag about pushing the envelope on what is legal and illegal. Typical liberals that dote on the 10 Bill of Rights. the B of R only protects trash like Hollywood and criminals.
I hope the Prosecutor in Franklin County, Ohio sees this post and takes note, and begins a crusade in Ohio to rid us of the purveyors of this kind of child pornography.
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