The judge said the trial should "not [focus on] what his motivations behind the vandalism were."
But Deputy City Attorney Hazard previously stated that, to the City, motivation was a distinguishing element in bringing this case:
"The People do not fear that this reading of section 594(A) will make criminals of every child using chalk. Chalk festivals may still be permitted. Kids acting without malice may still engage in their art."
If the prosecutor must show Malice as a material element of the statutory "offense" here, then the defense should be able to show an absence of Malice because he had an objectively reasonable belief he was expressing his First Amendment protected political opinions. Malice is a state of mind, and the defense has a defense here and must be permitted to make it.
Additionally, abuse of prosecutorial discretion should be in a pre-trial motion to dismiss. If the City Atty is on record as saying the same conduct--chalk writing by a child on the public right of way--would not be a chargeable offense--then the trigger for the decision to prosecute here was not the CONDUCT, but the CONTENT of the writings. The paper trail showing very active pressure from B of A to prosecute is great evidence of this also.
Then there is always Jury Nullification.....
Excellent point. If "malice" is an element in this case then very obviously Olson should be entitled to talk about his First Amendment rights.
The irony for me is last year I went to the San Diego police and attorney's office to get this guy who chalked over a hundred swastikas and other Nazi graffiti on an elementary school, and they told me that this Nazi was protected by the First Amendment and they couldn't prosecute him.
Nazis in elementary schools is ok, but criticizing a bank is not?
We need to dump Goldsmith now!
Mercy Baron 9:30 p.m., July 29
Don Bauder 9 p.m., July 29
Ken Harrison 6:30 p.m., July 29
Don Bauder 5:30 p.m., July 29
Don Bauder 4:30 p.m., July 29
Matt Potter 3:30 p.m., July 29
Tony de Garate 2:30 p.m., July 29
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