Sheriff Judd’s False Legal Statements Mislead the Public
by Kemp Brinson
In a recent interview posted at Lakeland Local, Polk County Sheriff Grady Judd repeats two false legal statements that have become part of his standard spiel on the Phillip Greaves obscenity case. I believe these statements are contributing to public confusion about the prosecution of Mr. Greaves, a Colorado citizen who was arrested after mailing a book about pedophilia to undercover Polk Sheriff deputies.
Grady Judd’s First False Statement
In the interview, Sheriff Judd said:
“I really like to practice free speech myself. But you can’t commit crime… There’s some things you can’t do, right? You can’t scream ‘fire’ in a crowded theater, you can’t threaten the President of the United States with bodily harm, and you can’t talk about bombs on an airplane. So why should you be able to write a manifesto, a manual, a how-to book, step-by-step, to sexually batter children? You can’t do that.“
Grady Judd is incorrect. There is no law in Florida that prohibits writing a step-by-step guide to committing criminal acts. It simply doesn’t exist.*
This arrest is based on stretching a very different law to fit the facts. That law prohibits “obscene” materials. Obscene materials are materials that are intended to be for sexual gratification, such as hard core pornography. Materials designed to make moral and political points, or explain the methods of a crime, are not “obscene” simply because they are explicit. The First Amendment clearly allows Mr. Greaves to express his views on whether and how pedophilia is morally acceptable even if the rest of the world finds it disgusting.
Unfortunately for Mr. Greaves (and anyone else who is subjected to his manifesto), this book does more than just express those ideas. According to the arrest affidavit, the book also contains two explicit descriptions of sexual encounters between adults and children. This is the part of the book that might make it illegal, not the part that talks about how to be a pedophile!
The prosecution will have to show the opposite of what Grady Judd says. The prosecution will have to show that the book, taken as a whole, is not a Constitutionally protected “manifesto”. Instead, they will need to focus on the explicit descriptions and argue that the work, taken as a whole, is intended to arouse the reader. This will be a difficult argument to make.
Grady Judd’s Second False Statement
“[W]e read the articles in the newspaper: [mockingly] ‘Oh, there’s nothing we can do, there’s First Amendment rights,’ you know, but that’s baloney! …We have a very good law in Florida, and we thought, let’s go get it, and we did. *** If there’s no law, we can’t do anything. When there’s a law we can do something. And there was clearly a law here.
Q: So there was a law here and not there [in Colorado]?
[A:] Apparently not, because the Pueblo [Colorado] police really tried to go after the guy, and they couldn’t get any place out there. And they were really excited that our detectives came out.”
Sheriff Judd is using weasel words when he says “apparently not.” He is painting the picture as if Florida law prohibits conduct that Colorado law does not prohibit, but carefully implies ignorance to avoid saying that. This picture is inaccurate. The truth is that Colorado has a nearly identical law on the books. The real difference in the two states is not the law.
If you have the patience to muddle through the legalese, read the Florida Statute and definitions; then go read the Colorado Statute and definitions (Update 4/5/11: The links to the Colorado laws break. To access these statutes, go to the Colorado statutes and see sections 18-7-101 and 18-7-102). Although Florida’s statute is wordier, the only material difference between the two laws as applied to these facts is that the Florida law raises the offense from a misdemeanor to a felony if the materials “depict” a minor engaged in harmful conduct. The Colorado law requires that the material actually be “promoted to a minor” before a felony punishment may be imposed. Even though the penalties are different, the prohibited acts and the definition of obscenity are the same: selling an obscene book is prohibited in either case. And it’s not just Colorado. Most states have similar laws.
So why wasn’t Greaves prosecuted in Colorado? The difference between Florida and the rest of the country is not our law. The difference is that our local authorities interpret the First Amendment to mean less than they do over in Pueblo, Colorado.
Why is this important?
Our democracy requires public participation and discussion to function effectively. To do this, the public needs to be accurately informed. The more the public is dumbed down with these oversimplified and incorrect descriptions of the law, the more the public will tolerate having our rights eroded away in the future.
Even if the prosecution of Phillip Greaves were on 100% solid legal grounds, there is no excuse for misleading the public about those legal grounds. We deserve better. I have no doubt that Sheriff Judd is committed to doing the “right” thing and getting the bad guys behind bars. He should be just as committed to accuracy.
Speaking of accuracy, if any members of the legal community or well-informed laypersons demonstrate that my legal analysis is wrong, I’ll happily and humbly publish a strongly worded retraction. Any takers?
* UPDATE 1/15/2011 – It is also worth noting that there are exceptions to the First Amendment for yelling fire in a crowded theater and for communicating threats. There is no generalized exception to the First Amendment for speech that facilitates crime. (source) Thus, even if there were a law prohibiting a manual for committing a crime, it may be unconstitutional.
Really? I am guessing you may be a lawyer. I agree that we can not impede freedom of speach, unless of course we are stopping those silly christian from speaking about their faith. Of course I am being fecicious here. I get really upset when people stand up for the rights of people who obviously intend harm yet hide when it is a christian who is having their rights tranmpled on. If that book has one instance of an illigal act in it, then this man deserves to be locked up. As Grady said, there are pleanty of things a person can not say due to the safety of those around. I have to believe that everyone, other than some sicko, wish to protect the children of this country!!
You said it: “IF that book as one instance of an illegal act in it…”
The explicit text in this book is not necessarily illegal – that’s my point. I’m not saying the book is “right” (just to be clear, I think it’s wrong, sickening, and disgusting) – but it isn’t necessarily illegal. Sheriff Judd is making it look like it is clearly illegal by misrepresenting what the law actually says. We can’t even begin to have a discussion about whether Mr. Greaves ought to be in jail or not until we understand what the law actually says. Sheriff Judd is misleading you about what the law actually says so that you will get emotional instead of rational. It appears to be working.
I am less concerned with the fate of Mr. Greaves and more concerned about laws being accurately understood and described by the people we elect to enforce them. If you are aware of any instances where someone in Polk County is misrepresenting the law to the detriment of Christians, I’m interested in looking at that, too. Please pass this information along.
Kemp, thank you for a well-researched & written piece that breaks this important issue down to easily grasped concepts…Good job.
it just makes me sad Kemp. Our laws seem so focused on the fine print and not the intent. And I understand thats the way the legal system is but it seems very old and out of touch. This dude has terrible intent to cause harm and enable others to cause harm.Therefore we need to act to protect those victims. i understand the complexities I just hate the whole game.
I understand the sentiment, but I think the alternative – giving the authorities the ability to enforce their subjective impression of right and wrong – is far, far worse. The rule of law, and the technical issues that go with it, are fundamental to democracy. The rights we enjoy only exist if they are clearly and technically defined. By necessity, this means some things that feel like they should be on the wrong side of the line will technically fall on the right side.
JGandB: Thanks!
Joe W., the issue with the things Christians feel they are being persecuted for is that the “free speech” they are looking for is simply an attempt to stifle the constitutional rights of people they don’t agree with.
People should read the first amendment case Flynt v. Falwell, the 1986 U.S. Supreme Court overturned the decision of both the U.S. district and appeals court.
Since in his magazine Hustler, descriptions of encounters with 10 year old girls were commonplace, along with descriptions of seriously commensurate or even more depraved descriptions were commonplace, the Court ruled Flynt had the first amendment rights to do so.
BTW, the arraignment is on the 25th, anyone expects the next scheduled appearance will be like Feb 25th? Or will he plead to avoid furher abuse?
No known motions, no action taken other than his plea, otherwise. I really do wonder what conditions of confinement are. Is he in solitude, perhaps psychiatric on suicide watch, stripped to his shorts with a little window in his sterile cell? No reading or wirting material, completely incommunicado? Given what is known as “finger food” and let out to bath and brush his teeth every 3rd day for 15 minutes? maybe once a week a 30 minutes of exercise, such as walking around in a circle outside his cell?
Just wondering.
[This portion of the post deleted because it was nothing more than an unattributed quotation of this:
http://en.wikipedia.org/wiki/Chester_the_Molester.
When commenting, please refrain from quotation without attribution.]
Now what does that suggest about First Amendment rights and the word “depicting”?
I think the case you are referring to is Hustler Magazine v. Falwell, decided in 1988. It was a civil matter, not criminal, and the issue was a parody of Jerry Falwell, not the more general content of the magazine. See http://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell
He was in isolation at the jail, according to the jail database, but this evening it appears as if he is not anymore.
The point I was trying to make was the force of First Amendment rights.
Maybe someone clued the Sheriff that holding him like that is illegal.
Perhaps this item: http://www.cnn.com/2011/CRIME/01/21/us.wikileaks.manning/index.html
ok, arraignment has come and gone.
No motions, no activity actually.
So tell me, what do you think abou Greaves “attorney” demanding speedy trial, and as well as:
summoning people like the CEO/leagal analysts of Amazon and CNN that most prominently figured into the “promotion” leading to his arrest? They defended Greaves’ book publicly on 1st amendment grounds.
caveat emptor.
If this were really so easy to armchair quarterback, he wouldn’t need a lawyer – a computer program could do it. I don’t know what happened yesterday, and I don’t know what strategic issues may be impacting his attorney’s decision to or not to do a particular thing, and I am not going to speculate about it. Also, I don’t know what you think “summoning” all these people will do for him.
I’m waiting to read the next headline telling us that Grady Judd has had the entire cast, crew, and production staff of Skins extradited to Florida – where undoubtedly many residents with cable can and have watched this “obscene” show depicting sex and many other activities which Judd would undoubtedly consider “harmful to minors.”
You still think Greaves has an attorney, I do not, it’s in name only.
Just what activity can you discern? Nada,
SOP, the next hearing will be a pre-trial next month or so.. Late February or early April if lucky, then another I expect in May or June. And that’s the earliest, maybe much later,
Why wouldn’t one demand speedy trial?
The reason for getting depositions and summons for Amazon/CNN is that Greaves is indigent, and it would cost the state/county dearly and provide Greaves with expert defense witnesses.
caveat emptor,
subpoena I expect is actually the term, not summons
You can’t have an expert testify about first amendment rights. The expert on the law in a court of law is the judge. Such testimony would probably be inadmissible.
One possible reason (I know, I said I wouldn’t speculate) for not demanding a speedy trial is because the defense needs to find an expert or other witnesses on community standards in this area who can/will testify for Greaves.
Yes, subpoena. And, by the way, I shouldn’t have put it in quotes to pick on you for making the simple mistake (my secretary laughs at me when I make the exact same error, which I do once ina while) — my apologies.
I do think think both Amazon and CNN are embroiled in this case. I do think there exists some merit in having them appear. The may be little doubt, without the exposure provided by them, these case would simply not be. Besides, it makes for better copy. LOL
.
Secondly, Amazon is as guilty as Greaves for being his agent, offering the sale and defending his/their right to do so.
http://thecrimereport.org/2010/10/07/in-the-public-defense/
As for Amazon being guilty, you probably know that it is a little more complicated than that. Amazon did not actually sell a book to a Polk County buyer like he did, for example.
The instant statute makes no distinction, Amazon would be as guilty IAW the statute.
Kemp: First, Kudos for this post – With a local sheriff like Judd in your area, it took some cajones to publish this one! Second, despite Judd and his super-constitutional efforts, it would appear from an outsider’s reading of your local news that it wouldn’t take much of an expert on community standards to sink the prosecution’s case. Polk County and surrounding area is rife with child porn, rape, etc.! Maybe Judd has simply cracked under the pressure and suffered a psychotic break. Has anyone ever been found not guilty by reason of the prosecution’s insanity or mental defect?!
Thanks, Mike. I’m pretty certain that, even here in Polk County, posts like these are protected by the First Amendment and Sheriff Judd would happily and proudly protect people like me who make these sorts of statements. I’d do lunch with him tomorrow given the opportunity. I have had contact with the Sheriff’s office on numerous occasions and have always found them to be professional, courteous, and efficient. I know several deputies personally and they are top notch people. In short, sheriff Judd does a lot of things right. This is not, despite the impression elsewhere, a backwards place. It is a very a nice place to live, and a safe place, too.
When our leaders get it wrong, however, we can and should talk about it. I know you are joking, but I can assure you that Grady Judd is acting sanely and intentionally.
Quite right. And, I’m not impugning individual deputies. My beef is entirely with the elected official here.
As a result of this particular case, I found and read a book mentioned on a comments board elsewhere which is FAR more sexual than the excerpts I’ve read from the Greaves piece. Guess where I got the book? A public library. The idea that Judd would send deputies (just doing their job, I know) to Colorado to arrest Greaves makes it look just a bit as though Judd has never been in a library.
Let’s be honest – Judd went after Greaves for the self-promotion potential. There are many, many books out there which discuss in very frank terms sexual activities involving minors. This one just happened to catch someone’s attention on Amazon and Judd cashed in on the national spotlight. Sadly for him, he’ll probably come out looking more like an idiot than a hero.
And since the shoe fits, he needs to wear it,
In the latest entries in the court record, a status hearing is scheduled for March 4th, and a pre-trial for April 6th. Both include “BY MARSTYNO”, what does this term mean?
Also, at Greaves’ Jan 25th arraignment, there is MEMO OF COURT (SNAPOUT). What does this mean?
Marstyno is probably the username of the deputy clerk of court who entered the data.
In the olden days, the clerk would prepare a very brief summary of what happened at each hearing. It would be printed using a dot matrix printer on carbon paper and each lawyer would get a carbon copy “snapped out” from the perforated carbon paper packet. We still refer to these summaries as “snapouts” around the courthouse, even though it is not printed on carbon paper that you have to “snap out” anymore. As far as I know, this is purely a local convention.
So, this entry just indicates that that there is a brief summary of what happened at the hearing in the court’s file as prepared by the clerk.
Greaves in back in isolation, has been for awhile. I don not know the circumstances, but I can understand the level of his frustration. He is looking at a March and April hearings, the wheels of justice certainly turn slowly.
When the U.S. constitution was created, a speedy trial didn not mean taking 6 months to resolve such a crime, the information concenring the matter was complete prior to the charge itself. The trial shoudl be nealry immediate, not take 6 months to even commence.
Holding someone for months is just plain evil, it necessaraily requires the presumption of guilt. The Public Defender is an attorney in name only.
For anyone, being held in custody for months is prejudicial, that PRE JUDICIAL. punishment, against common decency.
An average person suffers, could lose their home and possessions.
How about it, Mr. Kemp? What effect would 4 or 6 months of your confinement have to you and your family?
This is all speculative. Certainly there is a problem with speedy trials in many cases. Neither of us have enough information about this case to know if there is justification for the timing or to evaluate the diligence of counsel.
Perhaps speedy trials for substantive cases would be more common if our courts weren’t congested by traffic cases (speed does NOT kill – if it did, race drivers would be extinct), possession of pot cases, and misdemeanors against dads at skate parks for not wearing helmets even though they aren’t skating (it was in the news this week – Oceanside, CA if you care to look). Frankly, I rank this case right up there with the examples above – a non-case that is wasting the court’s time. I would imagine the DA wants to delay this case so that nobody will be watching when he loses. He and the sheriff have put their necks WAYYYY out there on this one and I imagine they’re both in damage-control mode now.
Just what is there to not to know?
Greaves wrote and sold a book that Judd and many others thought obscene as it had some examples of sex as a child in it’s text. Grady reached across state lines to charge Greaves. Both Amazon and CNN’s legal opinons were that it was protected speech, despite it being repugnant.
He has effectively been denied bail, although he waived extradition proceedings and has no priors, He has been found indigent and in no way can meet a $15,000 cash only bail and provide living arrangements during the duration of this trial. I do not think he is about to write and publish a similar book if released during court proceedings.
How can this be called Justice? Do you also assume guilt so it just plain doesn’t matter?
What effect would 4 or 6 months of your confinement have to you and your family?
You have an over-simplified view of how this all works. You think you know what his attorney should be advising him. You seem to also know that his attorney has not properly advised him. You think you know all the circumstances surrounding the decision of Greaves and his attorney to file or not to file a speedy trial demand. You act as if you know what the rest of the book says. You think you know what Greaves abilities are to provide for himself if released on bail.
About all of these topics, there is ample evidence to SUSPECT issues. I certainly agree with you that Greaves is PROBABLY being denied justice. He PROBABLY can’t afford bail.
But to take it further, and assume that his attorney is failing him simply because he has not demanded a trial sooner, is taking the assumptions too far. Certainly that conclusion is a possibility, but there is not enough information publicly available to truly understand why such a demand has not been made with any degree of certainty. There may be strategic reasons NOT to file a speedy trial demand. Maybe the PD is pressuring the ASA to drop the charges. Maybe Greaves is not in his right mind and has asked his attorney not to speed things up. We simply don’t know what all the circumstances are.
It is probably more likely that the longer Greaves is in Jail, the more likely it will be he can be compelled to acquiesce to a release for time served, eliminating or at least, make more remote the possibility of an appeal. The again, having him in custody increases a chance of being able to chrage him for other offenses.
Greaves being back in isolation might be for a disciplinary infraction, his increase in stress/anxiety due to incarceration, or threats made against him, albeit his own safety, who knows?
What is know is he has been found indigent, he says and it was affirmed that he has no financial resources.
He can’t make bail, he is an out of the state defendant with no ties to the area, and no home there.
He has a record of mental illness, and initially complained about not receiving medication. He had in receipt of disabiltyi income due to severe mental illness.
Conditions in jails are not conducive to effectively treating people with mental illnesses. I doubt there is truly qualified mental health professionals on staff to recognize and respond to the needs of inmates experiencing severe psychiatric symptoms. They no doubt respond to psychotic inmates by punishing them or placing them in physical restraints or administrative segregation (isolation), responses that may exacerbate rather than alleviate their symptoms.
Thank you for the intelligent posts and comments to date. Actually, this is about the only place I could find on the entire Web that is offering coverage of the Constitutional issues raised in this case. As a knee-jerk progressive, I’d expected the ACLU to be involved weeks ago. (Silly me.) Now I learn here that Greaves is still in isolation. Part of me thinks that is shameful.
As odious and/or stupid as his book may have been, I find it chilling that 99.9% of observers seem ready to lynch Greaves for having written something that none of them have read. There’s something hypocritical about this book-banning and witch-hunting mentality. We’re expected to fall back on our own fertile imaginations to conjure up the book’s content and castigate its author. Meanwhile, lock him up and throw away the key.
Admittedly, Greaves doesn’t appear to be any kind of standard-bearer for literary expression. He’s hardly James Joyce (or even Vladimir Nabokov). But I would still have expected SOME wider response from the civil liberties community. I think it’s important to continue this discussion.
Great observations, and thanks! I’ll definitely be writing more about this case as things occur. It definitely deserves wider coverage.
What are the conditions of confinement in Polk detention?
For a mentally ill person, say a manic depressive as is Greaves?
According to the inmate rights information posted on the PCSO website.
Breakfast at 4:30 am, lights out at 11pm(dayroom TV off) for general population. So you can get 5 1/2 hours of sleep unless one can sleep through what only can be considered annoying noise. A Manic depressive/bipolar would go raving mad. The worse thing/conditions for such a person is stress and sleep problems.
Greaves should be sent to a public facility for his own sake, he has not been convicted of anything.
What conditions he is now under IS CRUEL and UNUSUAL punishment PRIOR to Conviction.
GRADY JUDD should be held accountable for wanton abuse and gross indifference to the health needs of his detainee. In fact, it appears to be illegal under Florida statutes. Judd is afflicting harm due to Greaves disability.
I just want to point out that I bought a a few pairs of jeans last weekend and managed to get home with the security tag still on one of them.
A single search entry on Google brought up a host of very specific instructions on how to remove security tags from clothing. At least one such guide was brazenly entitled “How to Steal Clothes.” These were not narratives about the authors’ pasts as clothing thieves. These were not fictional accounts of how the authors think you should remove security tags to avoid damaging the clothing. These were specific instructions on removing the tags – intended to show others how to remove tags. One source even supplied a special tool for a nominal price. And, while removing the tags is not inherently illegal, well, let’s just say the number of entries returned by this search was disproportional to the odds of a store clerk accidentally leaving a security tag on something you have bought and paid for.
Sheriff Judd? Where are you? Not planning to subpeona Google’s records and arrest the dozens of creators of these guides on how to break the law? Planning to send your henchmen out of state to track me down for not only seeking out this information but for actually using it?
Information, like literature, is amoral. It exists independent of the author’s state of mind and has no effect beyond what each individual reader imparts on it. Judd’s case against Greaves is nothing more than grandstanding to show the folks in Polk that he’s a man who simply won’t tolerate obscenity in his jurisdiction – even when it has to be ordered in from half-way across the country.
What’s puzzling is why the ACLU has not stepped up to the plate and shot down this dog of a case. Funny. If Greaves were a judge with the Ten Commandments posted in his courtroom, the ACLU would have their name all over it.
This is the only review I have found from someone that actually read this book (from an amazon kindle reader):
“I found the book hard to read and gross. I was disgusted with the author trying to make some kinds of sex with kids OK, and other kinds WRONG. IMO, child molestation is child molestation.
I did agree with his “yeah, you have urges, and you can’t get rid of them, so masturbate” plan. I wish that the book had been all about this. If it had, I would have no complaints about it. I know that the urges are wrong, I also realize that pedophiles can’t help the urge. What they can help is whether or not they act on that urge.
I found Chapter Two really hard to read. And this might be what makes it worth banning.
Chapter Three was just a conclusion to the book.
So, there really was no “How-To” molest and get away with it. But there was a bunch of really objectionable content.”
END OF QUOTE from Amazon
So, Someone that actually read this book thought it isn’t a “HOW TO GUIDE”.
How can anyone make an informed decision unless one actually read this “book”, and who would want to?
As predicted. Greaves pleads No contest. COERCED.
Anyone that knows the corruption in Polk County or 2DCA would have realized that would be the most likely outcome.
Greaves had no attorney, It was either remain in jail, in isolation or plea to get out. That is modus operandi down there.
It was, we will Delay, delay, delay while you suffer deplorable conditions in our jails (4 cement walls, no reading, no tv, incommunicado and without hope of a fair hearing). You will stay there until you plead to our liking (we have all the time in the world.)
The only thing criminal is the court system,
Any idiot could see the handwriting on the wall.
Having just come from court today, I’m inclined to agree with Nathan Hale on his statement about the court system. Last October I (along with my family – wife and kids) was the victim of what ended up being a “menacing with a gun” charge committed by a guy with a history of such behavior. I had to take time off work to swear out the complaint, take more time off to sit in court in January only to be told that the defendant turned down a plea offer and wanted a lawyer (PD), then half a day off work today when we actually went to bench trial. (And handed this idiot his own ass on a platter.)
My wife and the other primary witness in this case had clinicals for school during my previous court date – but as I explained to the city prosecutor, she was just a phone call away if needed. We don’t live in NYC – you can get to the courthouse from just about anywhere in town in 10 minutes or less. He said that wouldn’t be necessary – no problem since we weren’t going to trial at that time.
Flash backwards a couple of months ago to a news story in our local paper describing how two men claiming to be sheriff’s deputies knocked on a door not far from my house, then barged in, tied up the residents, and beat up the guy. Hardly inspires people to open their doors just because someone on the other side claims that he’s a cop with legitimate business to discuss.
Now, flash forward to last Friday morning at 6:00 AM. Someone claiming to be a city policeman shows up at our door, banging on it like the house was on fire and he was trying to save us. He demanded to speak to my wife (who is terrified of cops due to her previous marriage to one of the worst ones) but refused to state the nature of his business with her. He then threatened to arrest ME if I didn’t produce her to sign some paperwork – which I was finally able to identify as a subpeona to appear as a witness in this case.
As I said, we prevailed in court, which I felt was necessary to stop a gun-carrying moron from continuing to bully people. But, I’ve got to say that my sense of civic duty was very much clouded over by being treated like criminals over a subpeona to witness against this guy.
The system is broken.
I hope you both support adequate funding of the courts, public defender, and prosecutor’s offices in your respective jurisdictions.