In October 2004 Gordon Lee, the owner of Legends comic shop in Rome, Georgia, participated in a trick-or-treat event in downtown Rome, passing out free comics. Among the thousands of comics passed out was a copy of Alternative Comics #2, a Free Comic Book Day anthology from publisher Alternative Comics. The book included an excerpt from Nick Bertozzi’s graphic novel The Salon, which depicted the first meeting between Georges Braque and Pablo Picasso. On three of the excerpt’s eight pages, Picasso is depicted painting in the nude. The content is merely illustrative of a moment in history, and is not sexualized in any way.
The book, allegedly, was accidentally distributed to a minor, whose parents filed a complaint with police. When confronted by police, Lee admitted the alleged distribution was a mistake and offered to make a public apology, but the apology was rejected and Lee was arrested days later.
In early 2005 the Board of Directors for the Comic Book Legal Defense Fund voted unanimously to financially support Lee’s defense. Initially, Lee was charged with two counts of distributing material depicting nudity or sexual content—felonies—and five counts of unlawful disposition of materials to minors—misdemeanors. Several of the counts did not name a victim.
The Fund’s legal team, led by Atlanta lawyer Alan Begner, challenged the constitutionality of the laws under which Lee was being prosecuted as well as challenging the counts that did not name a victim. The felony counts and two misdemeanor counts were dismissed, leaving three misdemeanor counts which were then consolidated into two misdemeanor counts. The remaining counts alleged that Lee had knowingly distributed material containing sexual content to a minor. The Fund maintained that the material in question was constitutionally protected, did not contain sexual depictions, and that the laws Lee was prosecuted under were unconstitutional.
In April 2006, after 18 months and numerous court appearances, the prosecutors dismissed the charges on the eve of trial because the wrong victim—a nine-year-old boy—was named. The charges were soon re-filed, alleging that there were in fact two victims: the nine-year-old boy and a six-year-old boy.
Lead counsel Begner said, “I have never—as a criminal trial lawyer for thirty years—seen a complete changing of the facts like this. Throughout the year and a half before that trial date, through written statements, the investigation, and the presentation of evidence before the grand jury, as well as the written accusation and indictment, the State had steadfastly asserted that the comic book had been handed to the nine-year-old. The dismissal of the charges today reflects the prosecution’s admission that everything that was presented as evidence before was untrue, and that they had stuck to the false facts through procedure after procedure in the case. How did a year and a half of statements based on one set of facts get changed at the last minute to another set of facts?”
In May 2006, the Fund’s lawyers filed several motions, including motions alleging prosecutorial misconduct and motions challenging the constitutionality of the harmful to minors law under which Lee was being prosecuted. Shortly before the hearing on these motions, the prosecutors brought the case back to square one for a second time, filing a new indictment and charging Lee for a third time.
Ultimately, the Lee case was declared a mistrial in November 2007. After three years of legal battles the prosecution introduced information in opening statements that the trial judge forbade them from including. Rome District Attorney Leigh Patterson vowed to try the case again, but eventually agreed to drop the charges if Lee wrote a letter of apology, which Lee promptly delivered to Patterson’s office. The total cost of the case was in excess of $100,000.
“Never in the Fund’s history have we seen prosecutorial conduct of this nature,” says Fund Executive Director Charles Brownstein. “We’re dumbfounded by prosecutors assuring the court that they weren’t going to do something, and then doing exactly that thing five minutes later. Every step of the way they have been adding further expense to Lee’s defense, first by changing their facts, then by entering new indictment after new indictment, and today by contaminating the jury. Nobody, especially a small retailer, can bear this kind of expense on their own. Today’s action is clear evidence of why the Fund needs to be around to protect comics.”