Christopher Jon Bjerknes
A statement that the Jews are racist cannot be a reference to race, because racism is not a racial characteristic, but rather a trait of a belief system. Therefore, any statement that the Jews are racist must of necessity have been referring to beliefs and not racial traits. An element of the offense of "racial vilification" must be that a race has been vilified, and it is the State, not O'Connell, which is arbitrarily and with malicious intent falsely designating the Jews as if a race in order to silence O'Connell's accurate depiction of the Jewish religion. In America, the normal procedure would be for the defendant to file a pretrial motion to dismiss for the failure of the indictment to allege an offense.
The defendant would also file motions to dismiss due to the unconstitutional vagueness of the Statute which fails to notify the defendant of what conduct is proscribed by law; a pretrial motion to dismiss due to discriminatory violations of the equal protection clause of the constitution; a pretrial motion to dismiss for constitutional violations of the defendant's fundamental rights to free speech; a pretrial motion to dismiss for constitutional violations of the defendant's right to engage in normal human conduct; pretrial motions to dismiss for prosecutorial misconduct; pretrial motions to dismiss for violations of the defendant's due process rights to preserve evidence; a pretrial motion for a bill of particulars; pretrial motions to suppress any evidence obtained illegally; a pretrial demand for a speedy trial if such is applicable in the jurisdiction of the court; a pretrial motion for discovery of exculpatory evidence and all other matter which the prosecution will or may wish to present at trial; etc. etc. etc.
At trial, the defendant must raise the absolute defenses provided by Statute as well as those secured as his fundamental rights to free speech, political freedom, self defense, defense of country, freedom of religious beliefs and expression, etc. etc. etc. All this must be done to not only win the case in the pretrial or trial phase, but also to preserve the right to raise the same issues in any potential appeal.
If it is an issue of first impression, if this is the first time the courts will address the question, then O'Connell stands a good chance of being able to appeal to the highest courts any violations of his rights or misconduct by the courts and/or prosecution. Have the courts established the elements of "racial vilification"? If not, then O'Connell has not received sufficient notice of what conduct is proscribed by law. If so, then the indictment against O'Connell must claim each element of the offense, which it cannot do, because the allegation necessitates that O'Connell referred to beliefs, not racial traits. Therefore, the prosecution must end at the earliest possible date so as to prevent further harm to the defendant by the unlawful prosecution currently being pursued by the State.
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