Exhibit A, The Blog

When Kevin O’Keefe twitted the link to me, he explained the story as being about a “blogging lawyer.”  The lawyer was Eric Dixon out of New Mexico, and if he was a “blogging lawyer,” it was news to me. So I responded to Kevin, “another blogging lawyer nobody ever heard of?”

But while Dixon and his blog may not be a household name around the blawgosphere, that doesn’t make his story any less disturbing.  From the Alamogordo Daily News:

Now Dixon’s freedom and career are at stake in a case that raises questions about whether his right to free speech was used against him. Ted Hartley was the state district court judge who complained about Dixon to the disciplinary committee of the state Supreme Court. Dixon had criticized Hartley for pushing a bond issue to renovate the Curry County Courthouse.

Dixon also wrote in scathing style about Hartley’s late father, Earl, who resigned as state treasurer in 1985 after pleading guilty to a misdemeanor in a theft case.

“Nothing personal against Earl Hartley or son Teddy, who represented him in the embezzlement trial. (I’m) just showing that power tends to corrupt absolutely, or that absolute power corrupts,” Dixon wrote.

Dixon didn’t win any popularity contests for what he wrote, but he did what he felt he needed to do. And that was exhibit A against him.

 A special prosecutor says it proved motive — namely that Dixon had so much animosity for the judge that he tried to run him over. Now retired from the bench, Ted Hartley was jaywalking across lonely Main Street in Clovis on an April day in 2011.

By Hartley’s account, Dixon revved his engine, leaned on his horn and drove toward the 73-year-old jurist, never braking or changing lanes.

Mind you, Dixon didn’t hit the ex-judge, and tells a different story of an accident that didn’t happen involving an unknown person jay-walking who turned out to be the target of Dixon’s invective. What would have been a big, ol’ nothing had it been anyone else turned into an allegation that Dixon so hated Hartley that his car was “aimed like a weapon” at his old nemesis, according to the special prosecutor for the disciplinary board, C. Barry Crutchfield.

“Animosity is not something that is a stranger to Eric Dixon,” Crutchfield told me.

It was Crutchfield who brought Dixon’s writings into the disciplinary case. Crutchfield said he considered Dixon’s personal attacks on Hartley to be a violation of the rules of professional responsibility for attorneys. Crutchfield ultimately dropped that charge. Even so, he said Dixon’s bitter strain, as evidenced in his writings, led him to target the judge.

Dixon was suspended by the Disciplinary Board, which was then reversed by a review board. His case is going before the State Supreme Court next.  But that’s just the lawyer end of things. There will still be the criminal prosecution to deal with.

Either way, Dixon will still face a criminal charge of aggravated assault for allegedly trying to harm the judge with his vehicle.

The question in such a prosecution isn’t motive, as motive isn’t an element of the crime. But you can bet the trial will have motive all over it, and huge displays of Dixon’s writings, whether on big poster boards or maybe large screen TVs or projectors. One way or another, Dixon’s words will be what differentiates a traffic accident that didn’t happen from a crime.

On the criminal side, the prosecution’s story sounds nonsensical. If somebody wanted to run down a 73-year-old guy, he would have. Even an uninspired car can go fast enough to make sure the driver gets two points, and it’s not like the old man could do anything to stop it. That he wasn’t struck seems to be overwhelming proof that there was no intention of doing harm.

But scaring the crap out of an old man?  Well, that’s another story

Still, stretching one’s public writings that seek to expose corruption by public officials, even if they seem unduly scathing by local sensibilities, to a personal animus that supports a claim of intent to harm seems too far a reach. While it’s possible, there doesn’t seem any way it could be proven, and if it can’t be proven, it shouldn’t be prosecuted.

The longer issue, and the one Kevin was pointing out to me, is the risk taken by a lawyer with a blog who goes out on a limb to fight for something in which he believes.  When we talk to lawyers about the risks of blogging, we de-emphasize the fears of retribution for offering substantive content, and tell them they are just as entitled to express opinions as anyone else.  Then comes something like this, a disciplinary proceeding followed up by a criminal prosecution, all of which stems from a lawyer’s blog.

It doesn’t matter if Dixon’s blog was more a matter of local issues than world renown on the internet. His right to express his thoughts, to challenge power, is just as great as anyone else’s, and the turn of a pedestrian near-miss into a case designed to destroy him based on his writings is no less offensive and wrong.

If there is evidence to prove a crime, then prosecute a person on that evidence. But to use his free expression as a bludgeon to shut up critics when the evidence of actual wrongdoing is nearly nonexistent is a chilling proposition. You don’t have to love what Eric Dixon says to fight for his right to say it. And to fight for his right not to be prosecuted for it either.

 

3 comments on “Exhibit A, The Blog

  1. Rick Horowitz

    As you know, I have nearly gone theough this same thing. From what was told to me, someone actually talked to the DA about filing a felony “criminal threats” charge against me for what I wrote about the Sheriff’s Department. In California, that’s a strike. I suspect if it had flown, it wouldn’t have taken three for me to lose my license.

    Of course, it never could have, and ultimately cooler heads prevailed.

    But it does make me question (sometimes) who and what I want to write about, and how.

    The scary thing about this sort of thing is that the American public runs on emotion, and I can easily see a jury buying the idea that if you write bad things about someone, you are the kind of person who would try to kill them.

    1. SHG Post author

      While similar, your situation had a component that was far more dangerous. The guys who “took umbrage” with what you wrote, largely because they had reading comprehension issues, had guns.

      1. Rick Horowitz

        That’s true. And for a long time, things were scary because of that, as you know.

        But at least the DA’s office (although I’m told it was talked about) did not do anything crazy like file charges against me.

        Not that I’d like to get shot, but I suspect I’d hate even more to be alive, but not allowed to choose for myself whether or not to practice law, and keep fighting.

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