If I had not retired from criminal defense work . . .

IN THE CIRCUIT COURT

FOR WILLIAMSON COUNTY, TENNESSEE

STATE OF TENNESSEE,

Plaintiff

v.

DONALD POWELL,

Defendant

______________________________________________________________________________

RESPONSE TO GOVERNMENT'S MOTION IN LIMINE TWO —

"The Government"

______________________________________________________________________________

            The government has moved to ban the word "government." The State of Tennessee offers

precisely zero legal authority for its rather nitpicky position, and the defense can find none. The

Plaintiff has failed to carry its burden on this motion. Moreover, the Plaintiff's proposed ban on

speech would violate the First Amendment. The motion should be denied.

            First, numerous courts do frequently use the term "the government" to describe the

prosecution. After all, "[t]he prosecutor's office is an entity[,] and as such it is the spokesman for

the Government." Giglio v. United States, 405  U.S. 150, 154 (1972). For other instances,

including many instances where the term is applied to state governments, see, e.g., Bell v.

Wolfish, 441 U.S. 520 (1979);Brewer v. Williams, 430 U.S. 387 (1977); In re: Winship, 397 U.S. 358 (1970). And although Tennessee state courts more commonly use the designation "the State," even they sometimes use the phrase "the government," and not just when quoting another court, either. See, e.g., Hickman v. State, 153 S.W.3d 16, 26 (Tenn. 2004); House v. State, 44 S.W.3d 508, 512, 513 (Tenn. 2001).State v. Caughron, 855 S.W.2d 526, 545-46 (Tenn. 1993); State v. Turnbill, 640 S.W.2d 40, 43 (Tenn. Crim. App. 1982); see alsoTenn. R. Crim. P. 16(a)(1)(F)(ii).

            Overall, it thus seems doubtful that all these judges are trying to demean prosecutors.

In any event, such a ban on terminology would violate the First Amendment. In Gentile v.

State Bar of Nevada, a divided Supreme Court noted (in various split opinions) that the First

Amendment does protect a lawyer working on a criminal case. 501 U.S. 1030 (1991) (Reversing

disciplinary sanction against lawyer who held a press conference). However, the court could not

fully agree on to what extent. But even when a court may regulate speech, this fact alone "does

not mean . . . that lawyers forfeit the First Amendment rights, only that a less demanding

standard applies," compared, e.g., to regulations affecting the press. Id. at 1082 (O'Connor,

concurring). In Gentile, the court upheld a restriction on speech posing a "substantial likelihood

of materially prejudicing an adjudicative proceeding." See id. at 1033. In the case sub judice, the

proposed word ban would not even come close to meeting this standard. Nor does it basically

serve any legitimate governmental purpose. Therefore, the ban violates the First Amendment.

            Should this Court disagree, and feel inclined to let the parties basically pick their own

designations and ban words, then the defense has a few additional suggestions for amending the

speech code.

            First, the Defendant no longer wants to be called "the Defendant." This rather

archaic term of art, obviously has a fairly negative connotation. It unfairly demeans, and

dehumanizes Mr. Donald Powell. The word "defendant" should be banned. At trial, Mr. Powell

hereby demands be addressed only by his full name, preceded  by the title "Mister."          Alternatively, he may be called simply "the Citizen Accused." This latter title sounds more respectable than the criminal "Defendant." The designation "That innocent man" would also be acceptable. 

            Moreover, defense counsel does not wish to be referred to as a "lawyer," or a "defense

attorney." Those terms are substantially more prejudicial than probative. See Tenn. R. Evid. 403.

Rather, counsel for the Citizen Accused should be referred to primarily as the "Defender of the

Innocent." This title seems particularly appropriate, because every Citizen Accused is presumed

innocent. Alternatively, counsel would also accept the designation "Guardian of the Realm."

            Further, the Citizen Accused humbly requests an appropriate military title for his own

representative, to match that of the opposing counsel. Whenever addressed by name, the name

"Captain Justice" will be appropriate. While less impressive than "General," still, the more

humble term seems suitable. After all, the Captain represents only a Citizen Accused, whereas

the General represents an entire State.

            Along these same lines, even the term "defense" does not sound very likeable. The whole

idea of being defensive, comes across to most people as suspicious. So to prevent the jury from

being unfairly misled by this ancient English terminology, the opposition to the Plaintiff hereby

names itself  "the Resistance." Obviously, this terminology need only extend throughout the

duration of the trial — not to any pre-trial motions. During its heroic struggle against the State,

the Resistance goes on the attack, not just the defense.

WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance,

primarily asks that the Court deny the State's motion, as lacking legal basis. Alternatively, the

Citizen Accused moves for an order in limine modifying the speech code as aforementioned, and

requiring any other euphemisms and feel-good terms as the Court finds appropriate.

Respectfully submitted,

______________________________

Drew Justice, #29247

Counsel for Donald Powell

125 Cedar Creek Drive

Franklin, TN 37067

(615) 419-4994

drew@justicelawoffice.com