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Apparently, at least one prosecutor in Missouri is behind the times. About 20 years behind the times. Last Friday, a man in Cape Girardeau was charged with desecrating a flag. Apparently the prosecutor was unaware of the 1989 United States Supreme Court decision in Texas v. Johnson that declared flag-burning to be protected activity under the First Amendment. Presumably over the weekend, someone pointed out the famous case to the prosecutor because he has since dismissed the charge. The Missouri charge was a misdemeanor, so I hope that means the charged defendant was not held in jail for any length of time. If somebody did spend any jail time on a charge like this, well, he would have a pretty good claim that he was being held unconstitutionally.
It troubles me when prosecutors don't know the Constitutional limits to their charging ability. I don't think the fact that the statute prohibiting flag desecration technically remains on the books in Missouri is really a good excuse for the prosecutor not realizing he couldn't file this charge. To me, this seems like the sort of charge that any lawyer ought to know is invalid, or at least needs to be researched first. I expect lawyers to stay abreast of case law that directly affects their practice. I wonder how many other defendants nation-wide have been wrongly charged with some form of flag desecration (or consensual sodomy post Lawrence v. Texas) by a prosecutor who either didn't know those charges won't fly or just didn't care. If it's the former, well, it's incompetent, and if it's the latter, it's an abuse of power. Either way, I think it's very likely an ethical violation.
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Do I really want to tell you about the lawyer who, three or four years ago, was representing a guy charged with flag desecration and didn't know that it was protected speech until I told him?
It's not just the persecutors who don't get it.
I'd forgotten about that famous 1st Amendment ruling. I'll have to work that into my discussions about guns. Most of my antagonists are big flag wavers as well as die-hard supporters of the Constitution.
Yeah, I worry about how many lawyers have forgotten, or just never knew, about that case or Lawrence v. Texas. And, like you Jeff, I've had that moment of looking incredulously at a fellow defense attorney and saying, "well, you know the state can't do that to your client, don't you?" when the answer was clearly, "No, I didn't know that."
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