It’s possible the DA recognizes that, despite his victory at the SJC, the lewdness prosecution is eventually doomed. If Ora is convicted and her lawyer, Daniel Beck, was to take the case to federal court, the charges would likely not withstand a First Amendment challenge. Plus, as Beck told Singleton in a recently filed brief, the lewdness complaint never should have been issued against Ora in the first place, since those charges in Massachusetts have been successfully prosecuted only when the cases involved “overtly sexual behavior in public”; a defendant who “exposed himself to a targeted person . . . , usually minors (so-called flashing)”; or a defendant who “exposed himself in the attempt or commission of a sexual assault.”

According to Beck, the evidence the clerk heard when issuing the complaint against Ora wasn’t consistent with any of those situations. And if the SJC requires “alarm or shock,” what Ora did doesn’t stack up, either. Beck is rightly asking the judge to throw out the case (again).

This may be why the DA has supplemented the charges against Ora by seeking a new complaint for “indecent exposure,” on the assumption that somehow the proof needed for that charge would be lower than for “open and gross lewdness.” This application, too, will be heard on Friday. But since Ora’s conduct is likely constitutionally protected, it doesn’t matter whether it’s described as lewdness or indecency. The Middlesex County DA is grasping at straws, playing with words, and wasting taxpayer money.

Harvey Silverglate is a criminal-defense and civil-liberties lawyer and writer. James F. Tierney is an incoming law student at the University of Chicago and was Silverglate's research assistant this year.

< prev  1  |  2  | 
Related: Justice on the hoof, Newspapers censor Bono’s ‘fucking’ gaffe, Parody flunks out, More more >
  Topics: This Just In , Criminal Trials, Trials, Law,  More more >
| More


Most Popular
ARTICLES BY HARVEY SILVERGLATE AND JAMES TIERNEY
Share this entry with Delicious
  •   NAKED IN THE PUBLIC SQUARE  |  June 25, 2008
    In the finest Puritan tradition, Middlesex District Attorney Gerald Leone is crusading to save Harvard Square from the shock and awe of the nude human form.
  •   ECHOES OF RODNEY KING  |  February 21, 2008
    When Simon Glik used his cell phone to record Boston police officers making what he thought was an overly forceful arrest on Tremont Street, he didn’t think he would be the one who ended up in the back of a police cruiser.
  •   ALITO: HYPOCRISY IN HIGH PLACES  |  July 03, 2007
    The First Amendment took two big hits from the Supreme Court on June 25.

 See all articles by: HARVEY SILVERGLATE AND JAMES TIERNEY