The judge is also not pleased about the oft-repeated statement that the defendant faces up to 13 years in jail if found guilty. While each of the 13 charges of vandalism could result in a sentence of one year behind bars, the judge stated, “It’s not going to happen and I would be surprised if it ever happened to any defendant with no criminal record.”
The gag order also came on the same day that the defendant had made a morning radio appearance to talk about his case.
Following the gag order, the defendant did speak briefly to the media, but only to say, “This morning Judge Shore issued a gag order prohibiting all counsel and parties from commenting or expressing opinions on the case. All I am permitted to say is that I disagree.”
The judge in the case has come under fire for his decision barring the defendant’s lawyer from mentioning his client’s First Amendment right to free speech and expression.
“The State’s Vandalism Statute does not mention First Amendment rights,” he explained in his ruling.
In a statement to Huffington Post earlier this week, the San Diego City Attorney’s Office explained why they believe this is not a free speech case:
“This is a graffiti case where the defendant is alleged to have engaged in the conduct on 13 different occasions. The trial judge has already held that, under California law, it is still graffiti even if the material can be removed with water. Most graffiti can be removed. Also, the judge and a different pre-trial judge held that the First Amendment is not a defense to vandalism/graffiti.”
And while the City Attorney’s Office might be prosecuting the case, the mayor of San Diego has come out in support of the defendant.
“This young man is being persecuted for thirteen counts of vandalism stemming from an expression of political protest that involved washable children’s chalk on a City sidewalk,” read a statement released earlier this week by Mayor Bob Filner. “It is alleged that he has no previous criminal record. If these assertions are correct, I believe this is a misuse and waste of taxpayer money. It could also be characterized as an abuse of power that infringes on First Amendment particularly when it is arbitrarily applied to some, but not all, similar speech.”
In discussing the gag order yesterday, the judge called the mayor’s statement “irresponsible” and said that Filner had no place voicing his personal opinion about court trials.
Meanwhile, some readers have pointed out to us the likelihood that the defendant in the chalk-scribbling case is probably the same Jeff from San Diego who claimed in 2011 that he’d been threatened by a BofA employee while standing outside a bank branch to provide passersby with information about switching to a credit union.