Gag time 

Some ink has been spilled in recent weeks about the slap-down Geoffrey Fieger received from the Michigan Supreme Court, which upheld the Attorney Grievance Commission's recommendation that the flamboyant lawyer be reprimanded for saying on his radio show that three state appellate court judges should be sodomized with a plunger. There were a few other equally tasteful comments that raised judicial ire as well. Fieger had the audacity to argue that he was protected by something called the First Amendment. He lost.

But a majority of our supremes have just handed down another ruling that's equally chilling, and equally deserving of attention. Unfortunately for Justine Maldonado, she's not a celebrity, so not much heed is being paid to her case. At least not now. It did capture the media's attention originally, including a cover story in this rag ("Harassment factory," June 12, 2002; Maldonado is far left in the cover detail above). But the issue has grown to encompass more that the original charges of sexual harassment; like Fieger, the one-time Ford Motor Co. employee took a case to the state Supreme Court that hinged on matters of free speech. And, like Fieger, she lost. Her setback has potentially far-reaching implications, and should have everyone concerned.

Maldonado, now 41, sued Ford and one of its supervisors in Wayne County. She alleged that the supervisor, Daniel Bennett, sexually harassed her by repeatedly exposing himself, and that the automaker did nothing about it. Three other women filed lawsuits accusing Bennett of similar actions, and Ford of like inaction. At one point, it was learned that the supervisor had been convicted of indecent exposure; according to a police report he'd pulled his car alongside three high school girls driving on I-275, then honked to get their attention as he stroked his exposed penis.

That conviction was subsequently expunged from Bennett's record, and the Circuit Court judge hearing Maldonado's case ruled that his freeway johnson-jacking couldn't be introduced as evidence in her trial.

But ruling something to be inadmissible as evidence is not the same as a judge issuing a gag order prohibiting lawyers or their clients from talking outside the courtroom. Before a judge issues a gag order, a separate hearing must be held, and the ruling can be immediately appealed. So Maldonado talked to the media — including us. It was her obligation to do so, she says.

Back when we wrote our original story, Maldonado revealed that she'd been molested as a child but had never said anything about the abuse. For a kid still in kindergarten, that's understandable. But as a grown woman, staying mum and letting the actions of an alleged predator remain hidden was unacceptable.

"I'm not a 5-year-old girl anymore," she tells News Hits. "I'm not going to shut up. And they don't have the right to tell me to shut up."

But Circuit Court Judge William Giovan and the supremes — a slim majority of them, anyway — see things differently. While representing another woman who had previously filed a similar suit against Bennett and Ford, attorneys representing Maldonado had issued a press release referring to Bennett's indecent exposure conviction. That was before his record was expunged. With Maldonado's trial approaching, Judge Giovan warned the lawyers not to do anything that would unduly prejudice potential jurors.

Maldonado, however, remained determined to make an issue of Bennett's past record. She explained why in a deposition taken by Ford's attorneys: "I'm aware that you're whining and crying because I'm talking about it all over town," she said. "Yes, I'm aware of that. I won't shut up about it. It's the truth. You can expunge it, but it's the truth, and I'm going to tell it, and you know what? I will tell anybody that will listen because this man is a menace and he must be stopped, and you know it ... but you guys want to protect him, that's fine, I'm not. I don't have to protect Mr. Bennett."

Adding to Giovan's ire was Maldonado attorney Miranda Massie, who told a television reporter: "Metro Detroit has a company-town feeling, and it's hard to get a fair hearing from any of these judges when you're going against the Ford Motor Company. They'll stop at nothing to maintain the culture of abuse that exists in those plants, and we've found it hard to get unbiased judicial rulings in these cases."

That was after Giovan had refused a request from Maldonado's attorneys that he remove himself from the case. It was alleged that one of Ford's lawyers had helped host a fund-raiser for Giovan, who was seeking re-election. According to one of Maldonado's attorneys, the name of the Ford lawyer appeared on a flier, identifying him as the event's treasurer. But the claim of impropriety was denied, and Giovan stayed.

That was bad news for Maldonado. Giovan dismissed the case before it ever went to trial, deciding that the jury pool had been so tainted it was impossible for Bennett and Ford to get a fair trial. Maldonado appealed. A three-judge appellate panel determined that the case shouldn't have been dismissed. At the very least, attempts should have been made to select a jury.

Ford took the case to the Michigan Supreme Court, where, on a 4-3 vote, the dismissal was upheld. In the opinion of the majority, "Judge Giovan chose a principled option in dismissing the plaintiff's case in order to protect the administration of justice. The imposition of any lesser sanction would have been unjust in light of the plaintiff's and her counsel's flagrant misbehavior."

Writing for the minority and arguing that Maldonado and her attorneys had a right to speak out, Justice Michael Cavanagh declared: "The citizens of Michigan are intelligent and do not need speech to be sanitized. It does not advance the ideals of the justice system to shelter the public from comments, even those that may be deemed unwarranted by some."

Christopher Peters, a Wayne State University law professor who specializes in constitutional issues, sees this as a complex case, one that brings bedrock principles into conflict: the right to a fair trial and First Amendment free speech rights. He points out that it would have been possible to ensure both without denying Maldonado her day in court. Jurors could have been asked during the selection process whether they'd seen coverage of the issue; if an unprejudiced jury could not have been seated, the venue could have been moved to another location.

Michael Steinberg, legal director for the Michigan ACLU (which filed a brief in support of Maldonado), told News Hits that his organization is undeniably committed to the principle that a right to a fair trial is crucial to our system of justice. However, in this ruling and in the one regarding Fieger, "conservative justices in Michigan are leading the charge against free speech."

"These rulings," he adds, "will have a chilling effect on what lawyers are able to say."

Maldonado and her lawyers intend to take this to the U.S. Supreme Court. She sees it as a case that continues to grow in importance, and that in the end Ford could well regret fighting her instead of correcting the problem she and others complained about.

It began, she says, in an attempt to keep Bennett from doing to others what she claimed he did to her. Then it became a matter of holding Ford accountable. "Now," she says, "it's about free speech.

"The ball keeps getting bigger. I chickened out when I was 5 years old, but I'm not 5 anymore. I'm not going to shut up. We're going to go to Washington, to the Supreme Court."

News Hits is edited by Curt Guyette. Contact the column at 313-202-8004 or [email protected]

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