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."
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.
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."
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."
Cross posted at VidiotSpeak