The Phelps/Westboro Baptist Church protests against the war, as God’s retribution for America’s toleration of homosexuals, disgust many.  These are the folks who protest at the funerals of those killed in Iraq, turning the private funerals, and the grief of families who have lost a son or daughter, into circuses in furtherance of their bizarre cause.  It offends my sensibilities.  But that’s not the point of this post.

Volokh has linked to an article in the Omaha World-Herald (now there’s a curious name for a newspaper) about charges levied in Sarpy County Court against Shirley Phelps-Roper for mutilation of the flag, contributing to the delinquency of a minor and negligent child abuse.  The latter charges relate to Phelps-Roper for “making” her 10 year old son step on the American flag.

Her attorney, Bassel El-Kasaby, requested particulars of the charges. 

Deputy Sarpy County Attorney Marc Delman resisted El-Kasaby’s request, saying he didn’t want to limit the basis for the charges.

Delman told the judge that Phelps-Roper had “cleanly, openly and notoriously” made her son step on an American flag while her church protested at the funeral of William Bailey.

While most of the blawgosphere focuses on the issue of flag desecration, clearly  free speech no matter how much you don’t like it, my concern is for the nuts and bolts of this prosecution.  Not because they are so unique, but rather so common.  Except that it’s happening in a case receiving some degree of public attention.

The prosecutor objects to giving particulars of the charges.  The prosecutor says he doesn’t want to “limit the basis for the charges.”  While things like this don’t concern “big picture” guys like Eugene Volokh, these reflect the daily battle of defense lawyers in the trenches.

How exactly does one defend against a moving target?  If the prosecution refuses to be pinned down to what exactly a defendant is accused of doing, how is a defendant to defend?  This is not a phenomenon that happens in cases such as Phelps-Roper, where they want to nail her for something, and can’t quite figure out how to circumvent the Constitution and facts to turn lawful conduct into a crime. 

This happens all the time.  In fact, it is commonplace in federal court for AUSA to refuse to provide particulars under the argument that it would “prejudice the Government’s case.”  How telling the truth would be prejudicial has yet to be explained to me, but rarely will a District Court judge make them do it.  Very rarely, as least around these parts.

One can question whether a child stepping on the flag, though abhorrent to many, is any different “in kind” then a child grasping a bible or, for that matter, a Koran.  It all reflects beliefs “spoken” through conduct.  If “making” a child hold a bible endangerment?  If not, then it’s no more endangering to a child to express a belief by stepping on a flag.  I know, it doesn’t feel the same at all, but intellectual integrity sometimes requires the law to allow the bad with the good. 

So in this otherwise ugly case, with conduct that manages to offend so many people with such varying beliefs all at the same time, comes a common prosecutorial flaw.  As much as I would love to point the finger at this Omaha prosecutor and rant about how absurd his position is, it’s really just another day in the trenches, where defendants are left to guess what they are alleged to have done lest the prosecution not be “limited” by the facts.