Presuming this is being accurately reported, my concern is that the judge presiding over the case has ruled that Mr. Olson's defence is "not allowed to" mention Mr. Olson's right free speech in the context of his defence.

On what legal basis is the judge even allowed to do that?

It's quite clearly vandalism. The chap should get a few weeks community service like he would in pretty much every civalised nation.

[Presuming this is being accurately reported, my concern is that the judge presiding over the case has ruled that Mr. Olson's defence is "not allowed to" mention Mr. Olson's right free speech in the context of his defence.

On what legal basis is the judge even allowed to do that?]

The judge's role is to interpret the law and how it applies to the case, the jurys role is to determine matters of fact not law. So the judge will break down how the legal case fits based on the legal definitions and circumstances of the case and instruct the jury as to what matters of fact they are to decide on.

For example (and its an awful extreme) you can plead insanity to murder because the law allows it (in 48? states) but you cant plead insanity to J-walking because the law is not written to allow it as an affirmative defense. This would be up to the judge to inform the party that they are not to bring up their condition and if they did, the judge would inform the jury to disregard (and possibly sanction the party) the statement(s) as it has no bearing as a matter of law.

(I am not a lawyer, so this may not be 100% perfect, but it is my understanding of the process)

and to further add, the only questions the jury would answer is 1) did the person do what they are accused of? and if so does it rise to the definition that the judge provided in their jury instructions.

That makes sense loki. What doesn't make sense is how free speech doesn't fit the crime. The man was quite clearly protesting and expressing an opinion on something. And he did it in the least vandalizing way possible, something easily removed with water. It isn't like he used spray paint on glass windows or used a chisel to etch his message in the marble facing of the building.

To be honest, i didnt even read the article (who needs facts to get in the way of an internet discussion?) but from the questions and statements that have been put forth the judge has decided that the "speech" is not relevant in the case. There is no question as to if the speech is protected or not, the question is a jury question as to the facts and if the "least vandalizing way possible" constitutes vandalism under the relevant law. In the laws eye (at least according to this judge, and there is always possibility that an appeal court could reverse this decision) the content or freedom of speech isnt relevant. The act is what is being questioned.

Another extreme example (I seem to like these) would be the Nazi flag (there is actually an issue with this right now in my home state). If i wanted to fly the Nazi flag in front of my house, no matter how offensive the neighbors thinks that it is, it is my right under the first amendment as long as i am not violating any other ordinances (such as size or presentation restrictions which are content indifferent). However I am not allowed to then take colored chalk (or paint if you really want to take it a step further) and turn my neighbors driveway into a representation of the Nazi flag. That would likely get my charged with vandalism (and possibly a hate crime).

You are right of course. My free speech doesn't allow me to vandalize your property.

It just struck me as odd that if this is just about the vandalism, being charged with crimes that amount to 13 years of jail time seems outlandish. If this is about more than just the vandalism, then speech would seem to come into play.

But maybe it is just about the vandalism and the DA is pushing for the biggest charges possible to try and get the guy to make a plea deal.

The other side to consider is if this is 13 counts of vandalism at 1 year apiece, the judge can decide to have all 13 sentences happen at the same time rather than be consecutive, right? So maybe between that, and parole, and having to make room for real criminals he'll only do time for a few weeks. Next time maybe he'll just carry a sign.

Chalk is not vandalism.

But I hope this teaches him to use spray paint in the future. If you're going to do the time, you might as well do the crime.

@Alderian ... first of all, how can it cost $6,000 to clean up a bit of chalk off your sidewalk? Seriously, have they not heard of rain? Did they include in that their court charges? Did the guy infuse sulfuric acid in the chalk and burn the pavement away? If he did that, they might be able to chalk up $6,000 (HAHAHAHAHAHA). And the sentence of 13 years - 1 year is waayyy too much for this, but 13?! - that's unbelievable. This is bullshit at best and institutionally insane at worst.

It's quite clearly vandalism, I'll agree with that. But 13 years? My god that's about 12.75 years too many.

I bet the media is pulling the 13 year number from the statutory maximum. Not what he is likely to serve. It's probably based on the dollar amount of damage claimed by BoA. That is another jury question. Do they believe that $6k damage was done or are the numbers BS? If BoA called in a professional restoration team "because they didn't know the extent of the 'damage'" before trying to hose off the chalk the jury / judge may significantly lower the charges convicted of / sentence.

Also I just looked up the penal code for California. Yup, according to the law chalk fits the definition

594. (a) Every person who maliciously commits any of the following
acts with respect to any real or personal property not his or her
own, in cases other than those specified by state law, is guilty of
vandalism:
(1) Defaces with graffiti or other inscribed material.
(2) Damages.
(3) Destroys.

As used in this section, the term "graffiti or other inscribed
material" includes any unauthorized inscription, word, figure, mark,
or design, that is written, marked, etched, scratched, drawn, or
painted on real or personal property.

So where are the 13 counts coming from?

Also even if he was convicted of the maximum (highly unlikely) the judge would likely have the sentences run concurrently. So realistically the max is 1 year, but more likely it's going to be community service or a suspended sentence.

This is really looks like it's just a case of too many attention whores (on all sides) and the media playing along because it gets the readers attention

Sounds like he wrote 13 statements about the bank.

Here is an article with a bit less spin

http://mobile.reuters.com/article/idUSBRE95R04P20130628?irpc=932

I wonder if Draug runs that bank. Sounds like the same kind of overreactive attitude he often displays.

Sounds like you have the protester who obviously wants attention trying to stir up the news because that is the point of protesting.

You have the DA who appears to be known as a bit of a dick who also wants to be in the news to show they are doing the job and to discourage this action from beginning common (because if teenagers knew there was 0 penalties for chalk you'll have chalk penises all over the place because they can)

And you have the mayor who hates the DA.

All 3 parties are going for maximum media effect. And this is the type of coverage / situation you get when all these types converge. The gag order is probably the judges method of trying to get everyone to act like adults till the case is done (and is probably a bit annoyed of the circus over what is essentially a misdemeanor)

It also appears that he did it 13 seperate times over several months. So he likely got told several time knock it off or you are going to be charged by the police who kept getting called by BoA

Welcome to Corporate America! ('Murica!)

Yeah, the more I learn, the far less sympathetic I am with the man. He's getting what he wanted, publicity. The judge appears to be trying to keep his courtroom from becoming a political pulpit.

As you say Alderian - the more information, the clearer it is that freedom of speech isn't really relevant in anything but the most vague terms and certainly isn't relevant to the court case.

Ka-fucking-boom.

http://www.outsidethebeltway.com/sidewalk-chalk-vandal-acquitted-by-jury/

Good verdict.

He ought to buy that jury dinner sometime. Glad we can still find common sense in them.

I thought the potential punishment was lacking in common sense. I'm not sure it was common sense that this wasn't vandalism.

Dude, someone going to court because he wrote on the ground with sidewalk chalk is a complete affront to common sense. I've written on my neighbor's sidewalk before and nobody ever took me to court.

This will get overturned. I'm surprised it isn't a hoax, tbh.