The President who will not remain nameless

Two local attorneys in Media, Pennsylvania filed pretrial motions to keep opposing counsel from mentioning President Bush by name at trial. The theory was that he is so unpopular, that it would prejudice the jury against them at a false arrest trial stemming from the arrest of a local doctor who was holding an anti-war sign at a Bush campaign event.

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Apparently President George W. Bush is now so unpopular that some lawyers believe the mere mention of his name in front of a jury could tip the scales against them.

Attorneys Michael P. Laffey and Robert P. DiDomenicis of Holsten & Associates in Media, Pa., are defending Upper Darby Township, Pa., in a civil rights suit brought by Harold Lischner, an 82-year-old doctor who claims he was falsely arrested for displaying an anti-war sign at a Bush campaign event in September 2003.

With the case set to go to trial on July 23, the defense lawyers recently filed a flurry of motions, including one that asked Eastern District of Pennsylvania Judge Gene E.K. Pratter to prohibit the plaintiff from mentioning Bush's name.

The motion in Lischner v. Upper Darby Township said that according to the latest Newsweek poll, Bush has "the worst approval rating of an American president in a generation," and that 62 percent of Americans believe that Bush's handling of the war in Iraq shows that he is "stubborn and unwilling to admit his mistakes."

Laffey and DiDomenicis argued that "the identity of George W. Bush has no relevance to plaintiff's claim and should not be admitted."

Any "probative value" of Bush's identity, they argued, "is substantially outweighed by the danger of unfair prejudice to defendant."

Bush's identity, they argued, "in and of itself, presents the danger that the jury will favor plaintiff."

As a result, the defense lawyers said, "it will be sufficient for plaintiff to testify that he displayed a sign in opposition of a 'presidential candidate.'"

In the end, Judge Pratter was not convinced:

Now Pratter has sided with the plaintiffs lawyers, saying "the court disagrees that what Upper Darby proposes is a viable approach."

Pratter found that the message on Lischner's sign and Bush's identity, as well as the circumstances surrounding his visit -- including the war in Iraq and Bush's bid for re-election -- are "relevant to the determination of probable cause and to the adequacy of Upper Darby's training and policies."

All relevant evidence is "generally admissible," Pratter said, and "the president's identity and Dr. Lischner's opposition to the war in Iraq -- presumably as evidenced by the text on his sign -- are relevant because they are part of the circumstances weighing on the probable cause analysis conducted by Officer [Michael] Kehrle."

. . .

"The facts that the political candidate was not only a candidate for arguably the most important office in our government, but also the current president participating in a campaign for re-election, were important to the court's determination that the condition imposed by Drexelbrook was illegal and, thus, relevant to the probable cause determination."

The text of Lischner's sign is also legally significant, Pratter found, because "the fact that Dr. Lischner's sign was not blatantly offensive or disrespectful, and certainly not aimed at inciting violence or some other physical disruption, is relevant to whether probable cause existed."