The Bloomsday Device: December 2010

"Closing argument, Mr. Bloomsday?" the judge asks.

Bloomsday pushes himself up from the chair next to his client, and asks to approach the bench. He quietly requests to take one of the individually wrapped peppermints she's been offering the jury throughout the trial. "Of, course," she says. He picks one out of the dish, holds it up, approaches the jury, and sets the mint down on the front of the juror's box with mysterious flourish.

"Ladies and gentlemen, I really have an eye toward the clock here. And if I've appeared to be long-winded, I'm going to do my best not to be, now. I'm not even going to bring in the dry erase board and do my famous Dick Goddard impression of doing my weather map, here. I'm just going to talk to you.

"I mean, what I want to do in the next -- I'd say, hopefully, 10 to 15 minutes, maybe less, is give you -- what's the word...a mental blueprint of how I think you should rule on what you endured for the past couple of days, here.

"Let's, first of all, start with the burden of proof. Understand, this is not a fender-bender, this is not a civil action where you listen to both sides and decide which one you like better. This is a criminal case. And in a criminal case, I have no burden of proof. The defendant has no burden of proof. I don't have to prove anything. All I have to do is convince you that the City has failed to meet their burden of proof. The defendant and I could sit over there, and look at pictures of herself, or do a crossword puzzle. If they haven't met their burden of proof, your verdict must be not guilty. So, I just want to be clear about that with you.

"I also want to be clear -- and we talked about it initially -- this notion of what is the burden of proof? And that burden, as the court has explained, is evidence of guilt that is beyond a reasonable doubt. And what that means is that the City has to prove each and every essential element in a manner that satisfies you. It's the nature and quality of evidence that you would rely upon in the most important of your own personal affairs. That's the definition as you heard once before, and you'll probably hear again from the judge, that evidence of guilt is proof beyond a reasonable doubt.

"So, that's the preliminaries. If you don't follow those two steps, then you have violated your oath -- let's put it that way -- and you have sworn to God that you would, individually and collectively, follow those steps in your deliberations.

"There's really two broad points that I wanted to make here. One is, I should say preliminarily, I don't pick my clients. They come to me. And you may find my client annoying, or whatever, or eccentric, but that's beside the point. It really is. The point is, has the City met it's burden of proof?

"But I have to tell you that -- my personal situation leads me to say something went really, really wrong here. And I think we could hinge that moment as the moment when someone from The Plain Dealer gives my client their home phone number. No one is on trial for that. I'm not suggesting that somehow she wasn't doing anything other than trying to be accomodating. But it clearly unhinged the situation in a way that, you know, we've had to endure. But for that moment, I think, maybe we wouldn't be here because as one of the prosecution witnesses testified to, there was a better way to do this, I suppose, in their mind, and that is to just delete the voicemail messages and not bother responding.

"It may come as a surpise to know that I've been involved in criminal cases even since I was a child, and that's because my father was a criminal defense lawyer, too. And I would have to tell you something really peculiar about my childhood, and here we go.

"My father represented a horrible defendant, a rapist, who had raped little children. And the mother of that defendant, circa 1970's or whatever, '76, 77, used to call our home, repeatedly, every night. But back in the '70's if you remember, the way the phone worked was a lot different. If someone called you, back in the 70's, and you hung up on them, if you picked up your phone again, you still couldn't make an outgoing call. You couldn't call out again until the other party hung up. At least, that's the way our phone worked.

"So, the only way, in our house, that we could deal with this problem with this lady calling, rambling this, just, you know, hate infused speech toward my father, was to set the phone down on the kitchen counter, and just let her talk until she was done. And, you know, it kind of became a joke, frankly, I'm seven or eight years old. And here is this lady, screaming on the other end of this phone, you know, complete nonsense. I mean, accusatory and saying horrible things about my father and family and whatever. But the fact of the matter is that my father's response was just give her her due, let her speak, and she will get tired, and that's the end of that.

"Well, that's been sticking in my head through this trial. And it's because of the newspaper's response to what happened here -- I have made no bones about the fact that I think that the editorial board of The Cleveland Plain Dealer that is, for all intents and purposes, collectively and/or individually and/or jointly and severally the victim in this case, that's important to this case.

"It's not someone calling any one of you, individually, hundreds of times. It is someone who is calling what I think has been described as, you know, the last bastion of free speech in our society, at least in Cleveland, as it relates to a newspaper. But the fact of the matter is she's calling the highest point in the dissemination of ideas in our society. And I would say that that should go into your deliberations of whether she's guilty of harassing The Cleveland Plain Dealer by filling up their voicemail message boxes ranting about corruption, reform, and our city's only newspapers hand in those matters. I don't know how, but I think it is relevant. And I think that, somehow, this thing spiralled out of control for no other reason than somebody got scared that this lady was going to do something harmful. Is it relevant to your determination that my client never once, according to the testimony of the prosecution, called that employee's home phone number that the employee gave my client in some strange attempt to coax my client to provide her own? I think it is.

"I think it suddenly directs my client's efforts in a way that dovetails with the other part of this that I wanted to talk to you about. And that is the elements of the offense. I made it clear throughout this trial that, when you consider the elements of the offense of telephone harassment, the word "sole" or "solely" is important. And I don't know if you are going to get any special definition of "sole," but as a practical matter, we're talking about "only." The only purpose that she made those dozens, maybe hundreds of calls was to break the law.

"And I gotta tell you, I do have a dispute with my client about one point. That is, she says that this statute that she's charged with is unconstitutional. I say it's not. I say it is constitutional. I say this statute doesn't interfere with free speech. This statute doesn't impact someone's First Amendment rights because of the word "sole."

"If I call you a hundred times to let you know that you sold me a lemon car, Mr. Used Car Salesman, and I want my money back, that's not for the sole purpose of harassing somebody. It's for another purpose, it's for an additional purpose. And I'm not going to spend much more time trying to tell you what that purpose was. You could divine whatever purposes you heard in this testimony from her.

"But I would submit to you that the City has failed in its burden of proof to prove each and every essential element, specifically, that she made these phone calls solely to harass these people. She did it because she needed to express herself in a way that, you know, maybe a psychologist would say is deeply rooted in that letter to the editor that she sent to The Cleveland Press and got published way back in her childhood. Who cares? That's beside the point.

"The point is that the City did not prove to you that the only reason she called these people was to harass them.

"Now, I think I'm about to make history here as it relates to my time limit, here. And I believe it comes to this." Bloomsday picks up the individually wrapped peppermint that he set on the jury box moments ago. "Do you know what this is?" He holds it up. "This is a mint. And I'm going to make a million dollars with a new idea called The First Amend Mint. They give you fresh breath while you harass and annoy others around you!

"And I ask that when you return your verdict, that you have that First Amend Mint on your breath." Bloomsday sets the mint back down in front of the jurors. "Thank you for your time."

He walks back to the defense table and falls into his chair. The prosecutor gives his close, but Bloomsday isn't listening. His work is done. He closes his eyes as the judge instructs the jury. As the jury leaves the courtroom to begin its deliberations, Bloomsday stands up and instructs his client to do the same. He glances over and sees that the mint is now gone.