The Bar Trial of Jack Thompson (part 4): Take Two Attorney Testifies Against Thompson

Background for today’s testimony: James Smith was one of two Blank Rome attorneys who testified against Jack Thompson in his November, 2007 Bar trial. Smith, along with Rebecca Ward, represented Take Two Interactive and other video game industry defendants in the $600 million Strickland vs Sony lawsuit which Thompson filed in Alabama.

It was upon a motion filed by Smith and Ward that Judge James Moore, in November, 2005 revoked Thompson’s pro hac vice (visiting) right to practice law in Alabama, essentially throwing him off the Strickland case, which alleged that a 2004 triple cop killing was prompted by the 18-year-old murderer’s play of Grand Theft Auto.

(Smith and Ward filed a Bar complaint against Thompson and were called to testify at his trial.  In the excerpted transcripts, SMITH is Smith. JT is Thompson, TUMA is prosecutor Sheila Tuma and DT is Judge Dava Tunis, who is presiding over the case…)

TUMA: Explain to the Court why you filed your Bar complaint in this matter against Mr. Thompson.

SMITH: [Our complaint deals] with a history of the most offensive, abusive conduct that I have ever encountered in the 25 years or so that I have been a lawyer… I continue to get e-mails. I think I got one last week from Mr. Thompson. They have the same menacing tone, the same offensive quality to them. Nothing, in my view, has stopped him and I expect that when I leave here today that he will bombard me –

JT: Your Honor –

SMITH: -and my law firm with more e-mails –

JT: Your Honor, motion to –

SMITH: -because that’s what he does.

JT: Your Honor, motion to strike. That’s conjecture.

DT: Overruled.

JT: Overruled?

DT: Yes, overruled. Continue.

TUMA: Can you explain to the Court what effect Mr. Thompson’s conduct has had on you?

SMITH: Your Honor, I have never experienced anything like this before and I have been in some pretty tough fights… This is so far beyond the pale, it’s unimaginable. This man on a routine basis accuses me of participating in fraud, in the mental molestation of minors, in the most offensive, disgusting things that you could possibly imagine, and he does it all with absolute impunity… You can’t imagine what it’s like – well, I guess you can, because I hear he sued you, too – but it’s difficult to imagine that this could go on.

It had nothing to do with the practice of law. It’s horrible. It’s absolutely horrible. He makes reference to my mother and father. He makes reference to my partners. He just makes baseless, absolutely insane allegations, and he does it continually… We have a filter in our law firm now so that his e-mails only go to certain people.

JT: Your honor, move to strike because he was asked how it has affected him and then he went to using words that I’m insane, that I have sued you, and so forth. So I would ask that you move to strike his non-responsive answer. The question was, how did it affect him.

DT: Overruled.

(Thompson begins to cross-examine Smith…)

JT: Mr. Smith, let’s go to, if we may, your motion to revoke [my Alabama pro hac vice admission]… (Thompson reads from Smith’s motion) "Further, Thompson failed to fully inform the Court and the Alabama State Bar of the complete history of his disciplinary proceedings in his home state of Florida." What did I fail to tell [Judge Moore’s] trial court and the Alabama State bar?

SMITH: Well, what we have alleged in the brief, sir… It reads: "…the true material facts regarding Thompson’s history of disciplinary complaints to the Florida Bar are far more complicated than set forth in Thompson’s carefully worded letter to this Court. Far from simply accepting a public [1992] reprimand for violations of Florida ethical rules, Thompson instead caused a Florida Judge and the Florida Bar to question his mental capacity, resisted efforts to hold disciplinary proceedings, engaged in abusive invective against anyone he saw as his opponent, including the Courts themselves, and attempted to absolve himself of his misconduct by casting himself as the defenseless victim of a nebulous and far reaching conspiracy headed by his political opponents.

(Thompson then focused on the mental health issue, reading several paragraphs from a letter to Judge Moore’s Court…)

JT: Now, why didn’t you put [what I just read] in your characterization of what I had done improperly that I was reprimanded for [in 1992]?

SMITH: Why didn’t I put it in?

JT: Yes. Since you wanted the Court, I guess, to fully understand what it was I had done 13 years prior; but you didn’t have anything, did you, in your motion –

SMITH: Mr. Thompson, I’m going to ask you to step back. Step back.

JT: I’ll step back when the court asks me to.

DT: Let’s do this. We have a podium that’s pushed over… Let’s have all parties utilize the podium.

SMITH: Thank you, Your Honor.

DT: All right.

JT: What were you afraid of, Mr. Smith?

DT: Okay. That’s inappropriate.

JT: No. It isn’t inappropriate, Judge. I don’t mean to argue with you, but I’d like to know what Mr. Smith is concerned about.

DT: Mr. Thompson, I’m going to ask you to please utilize the podium as it is –

JT: I’m going to utilize the podium, Judge, but I would like to know why Mr. Smith asked me to step back.

DT: I’m not going to require him to answer that question…

JT: I think the door was open on that because –

DT: There’s no door open. Please continue with the questioning.

JT: And just for the record, Judge… Mr. Smith says that this has all impacted him and it seems to me he’s afraid of me. So I wanted to ask him about that.

(there was much back-and-forth and numerous objections regarding Thompson’s past issues with shock radio personalities… Thompson wants to know if Smith learned of these issues in his research on Thompson’s 1992 issues with the Bar…)

JT: Did you find any evidence in any news reportage suggesting or indicating that the nature of – if there was, in fact – a series of death threats received by me and my wife?

SMITH: I don’t recall.

JT: Would you be surprised if that had happened?

TUMA: Objection, Your Honor.

DT: Overruled. Go ahead, sir. You can answer.

SMITH: Would I be surprised if there were death threats against you?

JT: Orchestrated by the talk show host.

SMITH: I don’t have the basis to have an opinion…

(followed by more sparring about what was contained in Smith’s pro hac vice revocation motion to Judge Moore…)

JT: Mr. Smith, you’re asserting, are you not, that the reason that I brought and sought certain federal relief was to forestall the disciplinary proceedings. You don’t know what was in my mind, do you?

SMITH: Well, it’s true that I don’t know what is in your mind, ever, Mr. Thompson. That is a true statement.

JT: That’s clever. Now answer the question.

SMITH: But I don’t. That was the question, "You don’t know what’s in my mind," and I answered it.

JT: How do you know that my purpose of seeking the federal action was to forestall the disciplinary proceedings as opposed to getting federal relief for what I thought were inappropriate proceedings? You don’t know that.

SMITH: Because I have a brain.

JT: I beg your pardon?

SMITH: And because it’s exactly the pattern that you used here.

JT: What pattern here? Where?

SMITH: Running, suing everybody in sight who doesn’t agree with you, seeking –

JT: Oh, so you –

SMITH: You cut me off again.

JT: Okay, Mr. Smith. You go right ahead. I’ll give you as much rope as you want.

SMITH: Is that a question?

JT: No. You go right ahead, I said.

SMITH: Okay. It’s exactly what you’re doing here, Mr. Thompson. Exactly.

JT: Go right ahead.

SMITH: I’m finished.

(following this are numerous pages of back-and-forth about the circumstance which led Smith to file the pro hac vice revocation motion in Alabama… there is a discussion regarding one of Thompson’s television appearances, the 60 Minutes appearance with the late Ed Bradley which Thompson so often refers to…)

JT: So your position is that I violated the canons of ethics in Alabama by going on "60 Minutes" about this?

SMITH: No, Mr. Thompson… you violated [rule] 3.6 when you said what you said on "60 Minutes." When you –

JT: That was my shorthand way of –

SMITH: When you went on "60 Minutes," at that moment in time, you hadn’t opened your mouth yet. It’s when you opened you mouth and said the things you said –

JT: Mr. Smith, you’re –

SMITH: Excuse me. You’re cutting me off again.

DT: Let him finish…

JT: So your testimony is that my going on "60 Minutes" and saying what I said about the [Strickland vs. Sony] civil case was an ethics violation. Is that right?…

SMITH: To be more precise, your going on "60 Minutes" and saying what you said allowed us to present to the Court in Alabama that there was an ethical violation. It was the Court in Alabama that found that it was an ethical violation…

(after some legal arguments, Thompson moves on to Rockstar’s Bully…)

JT: Is it your position, Mr. Smith, that I shouldn’t communicate with the media about Take Two’s Bully game?

SMITH: It was my position – and still is my position, Mr. Thompson, that you, like every other officer of the Court, are required to discharge your duties in accordance with whatever rules are applicable. Therefore, I would need to know what it is you were contemplating saying about Bully and in what context. So in a vacuum, I can’t answer that question. Certainly – I’ll stop here.

JT: I’m not asking you that… Were any of the letters I wrote anybody about the Bully game – which in my opinion is a Columbine simulation made by your client, and there is litigation about that here in South Florida – that the letters you have regarding that violated the Canon of Ethics in Alabama?

SMITH: Mr. Thompson, we would need to go through the letters that are attached to the appendix so that I could refresh my recollection.

JT: Okay.

SMITH: Judge, I hope you can appreciate – I get eight, 10, 12 e-mails a day from this guy. I couldn’t keep track of them all.

JT: Come on. Eleven e-mails a day. Are you saying that under oath?

SMITH: Mr. Thompson, I want you to listen to me very carefully.

JT: I’m listening real carefully.

SMITH: I’m absolutely saying that under oath.

JT: Eleven e-mails a day.

SMITH: Well, I’m sure there was a day when I got 11. I didn’t count them all. They were so plentiful that our law firm had to engage in a system to screen them because you thought it was appropriate to enlist my partners in your cause.

JT: Well, if you were confronted with the situation where you thought somebody’s law firm was acting improperly, would you consider alerting the head of the firm to that?

SMITH: Mr. Thompson –

JT: Would you?

SMITH: The point is, there was no basis for you to make those scurrilous allegations.

JT: Why don’t you answer the question?

SMITH: They were scurrilous, false accusations…

JT: If you were confronted with a situation, Mr. Smith, in which a law firm you felt was involved – and I’m asking you this hypotheticaly – in unethical, illegal conduct, would it be appropriate to alert the head of the firm to that?

SMITH: It would depend if there was a factual basis to the concern… In this case there was none, as found by Judge Moore.

JT: Move to strike.

DT: overruled.

(as he did with Judge Moore, Thompson raises the issue of a parody website site for the the PSP game GTA: Vice City Stories. Smith seems unaware of it…)

JT: This is a letter to the Judge, Judge Moore. "Judge, I told you and I told Mr. Smith weeks ago, that his client, Take Two Rockstar, was and is still targeting me on its official website as supposedly the head of the decency organization called C.U.N.T.F.L.A.P.S., which is an acronym for Citizens United Negating Technology For Life and People’s Safety. How clever they are. Pornographers are smarter that the rest of us, far smarter than the people of Alabama, they think." …Do you have an opinion as to whether or not your client had that posted at  its corporate website?

SMITH: Yes…

JT: So did they post it?

SMITH: No.

JT: They didn’t have C.U.N.T.F.L.A.P.S.?

SMITH: No, Mr. Thompson, this activity had nothing to do with me certainly, my law firm and certainly my client. I don’t know about these websites that you get on and you communicate with people and people communicate with you that go far beyond the control of the people that we were required to control…

JT: Are you telling me that this was not at http://www.rockstargames.com/?…

SMITH: …I will tell you that I have no knowledge that our client was involved in it and I have absolute knowledge that neither I nor any member of my law firm had anything to do with… this distasteful, disgusting word or acronym that appears here, despite the fact that you accused me of having been involved in it…

DT: The question is, did Rockstar. Is that a corporation?

JT: That’s a defendant in the case… Take Two is the parent company of its wholly-owned subsidiary, Rockstar… My question is whether or not you know even now whether or not this material was at your client’s website…

SMITH: I believe it was on a website. My best recollection, Judge – is that – and Miss Ward is going to be a witness and she’s more factual on all this information than I am; but my best recollection is that people were able to come on to the website and make entries and that our client was not involved in this…

JT: Do you know who Colin Powell is?

SMITH: I’ve heard the name.

TUMA: Objection, You Honor, to the relevancy.

(there ensues a discussion, the upshot of which is that Thompson reads into the record some of Colin Powell’s thoughts on the moral degradation of society, which leads Thompson to…)

JT: My question was… to Mr. Smith whether or not his parents would be proud of what he facilitates – that is, the distribution of this stuff to children. You took offense at that. Right?

TUMA: Objection

DT: …He doesn’t need to answer the question.

JT: You were offended by my referring to your parents –

TUMA: Objection…

DT: Sustained.

(there ensues more discussion about the Alabama case, broken up by an odd interaction with another attorney in the gallery…)

JT: Should I have gone into the mental health exam demand issue by the Florida Bar?

TUMA: Objection; asked and answered.

DT: Sustained. I’m sorry. I’m going to ask anyone that’s in the audience not to speak out loud.

JT: He’s not in the audience. He’s here assisting me. I apologize.

DT: He’s in the audience.

JT: He’s here to assist me.

DT: And he’s in the audience.

JT: Well, I –

DT: Sir, I’m going to have to have you removed from the courtroom, which I do not want to do…

JT: He won’t say anything.

DT: …Excuse me, Mr. –

JT: [Miles] Gopman…

GOPMAN: No, no, I’m leaving.

DT: Mr. Gopman, you are welcome to –

GOPMAN: I’ll leave, Your Honor. I’ve seen enough. I’ve seen enough. That’s okay…

DT: Let the record reflect that Mr. Miles Gopman has chosen to leave the courtroom and the Court was going to explain to him that he’s welcome to stay… as long as he does not speak out from the gallery, interrupting the proceedings.

JT: Let the record also reflect that Mr. Gopman left; and I like your bailiff, but your bailiff was moving towards him to remove him.

DT: And I told my bailiff… there’s no problem with Mr. Gopman sitting here, but he cannot speak out from the gallery.

JT: And, Your Honor, I’m not allowed to stand within 10 feet of Mr. Smith because of his concern… Mr. Gopman probably didn’t appreciate your bailiff, who is a very nice gentleman, coming forward… He’s also got his own harassment problems from the Florida Bar. So he left, for whatever reason.

(several more pages of argument ensue before Smith wraps up. As he is leaving…)

SMITH: I don’t know if it’s appropriate to ask this but I’m going to ask it anyway. Is there any way we could ask for relief to stop the e-mails, at least until this hearing is over? I don’t know if you have the power to order that?

JT: No, she doesn’t.

DT: Sir, I need to deal with one legal matter that’s in front of me at a time.

SMITH: I understand. I hope you can appreciate my –

JT: That’s a nice touch, Mr. Smith. I appreciate it. Are you going to take down from your client’s site the references to me as a bisexual –

DT: Mr. Thompson, stop, stop.

JT: No. Your Honor –

DT: This Court is going to be in recess for a lunch break.

JT: Your Honor, are they going to take their comments down about me being a bisexual pedophile on their client’s site?

(…but the session was over.)   

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