For this segment we’ll assume that you have at least read Part 6 of GamePolitics’ Bar Trial of Jack Thompson, the direct testimony of Miami-Dade County Circuit Court Judge Ronald Friedman.
What follows is Thompson’s cross examination of Judge Friedman, who became a target of Thompson’s ire after he refused to grant the controversial attorney’s 2006 motion to have Bully declared a public nuisance in Florida.
(In the excerpted transcripts that follow, RF is Judge Ronald Friedman. JT is Thompson, TUMA is prosecutor Sheila Tuma and DT is Judge Dava Tunis, who is presiding over the case…)
JT: Judge, first things first. My lawsuit wasn’t, as you testified, to prohibit the distribution of this game [Bully], was it?
RF: I do believe it was.
JT: Well, let’s go to Exhibit 46… page 21 thereof… Why don’t you read paragraph D. This is under the caption Injunctive Relief.
RF: "An order prohibiting Take Two from selling all of its mature-rated video games directly or indirectly to anyone under 17 years of age, which practice is violating the strictures of the [ESA] and of the [ESRB] as well as solemn promises made under oath to Congress and to others."
JT: So do you want to change your testimony about what the purpose of the lawsuit was?
RF: No. That’s the way I read that.
JT: Prohibit the distribution.
RF: To adults? No. To teenagers, yes.
JT: Okay. I take prohibit to mean prohibit, and that is to prevent the distribution.
RF: That is exactly what it appears to be, to prevent the distribution to anyone under age 17.
JT: Right. Not across the board… But… we didn’t have a hearing on that, did we?
RF: We certainly did have some [courtroom] argument.
JT: A hearing on the merits of the case?
RF: The merits of the case? No.
JT: No. Now you testified – correct me if I’m wrong here – that I had represented as to how bad the game was? Was that basically what you said?
RF: That’s my recollection.
JT: I hadn’t seen the game, had I?
JT: I couldn’t have seen it.
RF: That’s correct.
JT: And I couldn’t have seen it because these people – correct me if I’m wrong – "these people" being Take Two – had released this game and shown it to people in the video game industry press. Then when I asked to see it – and I hadn’t filed suit at this time – I asked to see it before its release and then I asked you – correct me if I’m wrong, but I sought a release of it limitedly to you so that you could review it because no one had seen it other than the people I’ve mentioned. Isn’t that right?
RF: I don’t know who had seen it. I know you hadn’t.
JT: I had not?
JT: And you had not?
RF: That’s correct.
JT: So I wanted – correct me if I’m wrong. I wanted to have a hearing on whether or not this thing, this game, should be sold to anyone under 17 prior to its being released, with only the ESRB and maybe certain other people having seen it.
RF: Which was the purpose of having the in camera viewing.
JT: Correct. Now did you review the entire game – or, let me back up. Do you remember before we had this proceeding, this in camera proceeding or whatever you want to call it, this exercise in camera in your chambers – do you recall having said at the hearing prior to that, that you would review the entire game and that you would take all weekend if necessary and that I was welcome to attend if you did that?
JT: Okay, and so we had this – I don’t know. How would you characterize it? – in camera proceeding review –
JT: -in your chambers and we can’t – correct me if I’m wrong on this. We can’t really verify how long you reviewed through this cheat system, as you called it or as they called it – how long you spent reviewing it even under that situation because you ordered that the transcript of what went on there not be released except with your permission. Isn’t that right?
RF: (no response)
JT: So we don’t have that, do we, to time the hearing?
RF: That, I don’t recall.
JT: Did you order that the transcript of whatever went on in there not be released except by your order?
RF: My recollection is that I ordered it not to be released probably – unless I ordered it for certainly not before the actual distribution [of Bully]. That’s correct.
JT: Would you release it now?
RF: I don’t have a problem with that.
JT: My point in asking that was we would then have a record as to how long that exercise took. You testified here that you may have taken an hour or an hour and a half to look at the game, actual time viewing the game?
RF: That’s my recollection of about how long it was.
JT: Okay, and you thought – what did you call it, the cheat what?
RF: I thought what?
JT: No, I’m sorry. They called it a cheat –
RF: Whatever it was.
JT: – system?
RF: I’m calling it a cheater that allows them to jump from one part of the game to another.
JT: It allows them?
RF: Whoever is operating it.
JT: Right, and who was operating this game?
RF: Their representative.
JT: "Their" being Take Two’s?
JT: Who had come down from New York. I wasn’t allowed to see anything as to the game except the back of the screen. Right?
RF: That’s correct.
JT: What was your concern in that regard?
RF: It was an in camera review.
RF: And I was concerned that nothing was to leave that room until I made a decision.
JT: What was going to leave the room?
RF: I had no idea.
JT: What could have left the room?
RF: I have no idea.
JT: You have no idea?
RF: It was an in camera inspection. That’s what an in camera inspection is.
JT: What could I have made off with?
RF: I have no idea what you would have done.
JT: Could you have ordered me not to disclose. – and in fact you did order me not to disclose what happened in there –
RF: That’s correct.
JT: -as far as the content of the game or whatever.
RF: That’s correct.
JT: But that wasn’t sufficient.
RF: I don’t know whether it was or not.
JT: Well, somebody could have held me in contempt if I violated that order. Right?
RF: That’s certainly true.
JT: But you had an inspection, which wasn’t really in camera. We had other people in there. Do you typically do in camera inspections with other people there and with one of the party’s employees taking you through the exhibit?
JT: When does that happen?
RF: When it’s necessary for someone to explain something to me.
JT: Can you recall a case in which you had an in camera inspection of –
RF: I’ve had several.
TUMA: Objection to the relevance of all this.
JT: …Can you recall a case in which you had an in camera inspection in which one of the parties got to see what you were doing and another party didn’t get to see the item?
RF: Sure. Lots of times when one side possesses the item, in an in camera they present it to me, I review it, and the other side doesn’t see it.
JT: Have you ever let one side determine what part of the item you got to see?
RF: No. This is a first.
JT: Now, you said, I think you testified here that, hopefully, you saw the worst parts of the game. Do you remember saying that?
RF: I do.
JT: How do you know if you did?
RF: I only rely upon the people following my directions and hope that they’re following my directions.
JT: Did you see the melee at the end of the game where the hero of the game, Jimmy Hopkins, goes on a rampage and beats up just about everybody in the school?
JT: Do you have much familiarity with video game play?
JT: In fact, you said that you watched the game – right? – and that you wouldn’t want your children to watch it.
RF: That’s correct.
JT: You understand that you don’t watch a video game, right?
RF: Excuse me?
JT: Do you understand that you don’t watch a video game? Right?
RF: Are you making a distinction between watching and playing?
RF: Okay. When you’re playing, you are watching.
JT: And how do you play the game?
RF: I don’t know how you play the game. I don’t play video games.
JT: You don’t know how to play the game – or any game. Did you know that I had an expert there, Dr. Eugene Provenzo, to testify at this hearing we didn’t have?
JT: Okay, and do you know who he is?
JT: Do you want me to tell you?
RF: By all means.
JT: Eugene Provenzo is a tenured professor –
RF: Excuse me one second. Let me interrupt. I’m sorry. Was he the gentleman seated next to you?
JT: Yes… Eugene Provenzo is a full tenured professor at the University of Miami who has testified multiple times before committees of the United States Congress as to the powerful way in which video games and interactive media – which you play – are powerful teaching tools that can not only teach things, but modify behavior. Would it have been of interest to you that Dr. Provenzo could have told you that some guided tour of any video game by anybody – regardless of what their motivations are and financial interests are and who their employees are – is not a sufficient way to understand the content, the full content of a game? Would that have been of any interest to you?
RF: Mr. Thompson, as I recall, and I believe the transcript will reflect, at the end of the hearing, I said, "Does anyone have anything further to say to the Court?" and the doctor raised his hand, and I called upon him to say whatever he wanted to say and you told him to lower his hand and be quiet.
JT: Because he told me what he was going to say. Do you want to know what he was going to say?
RF: I don’t care.
JT: You don’t care?
RF: I don’t care at this point. I made my ruling. That was that.
JT: Since you raised it as to what you think he might have said or that he wanted to say something, would it have been of interest to you to know that he wanted to say that this was the worst misconduct by any judge he had ever seen?
TUMA: Objection, Your Honor. How is this relevant?
RF: Do I care about that?
JT: What do you mean, how is it relevant?
DT: I’m sorry. Are you speaking to me?
JT: I’m asking, how is this relevant? We’re here to talk about whatever I did and what I did was appropriate and there was a reasonable basis for me to be critical of what this judge did and how he did it. This witness, this judge, has suggested, implied, that somehow I gagged this particular witness and that he would have been prepared to testify about things that, if we had had a real hearing on something, he would have testified on.
DT: Overruled. Go ahead. Answer the question.
JT: Go ahead, Judge.
RF: Having viewed what I did and having reached the determination in my mind that the First Amendment would preclude me from making a decision in any way contrary to what I did and that I probably made a mistake in even taking the time to view what I did, I denied your motion. Nothing would have changed that.
RF: If I found that something would have incited to immediate violence, that would have changed it; which is the only reason I granted the opportunity to have a viewing of the game.
JT: But you didn’t see the end of the game. Right?
RF: That’s correct.
JT: And you’re not aware, apparently, are you, that video games of this genre typically result in more violence as you go through the game and you have a culminating act of violence to "finish the game." You don’t know anything of that, do you?
JT: Do you remember before we ended this – you ended this – in camera inspection through which you were led by Take Two’s employees, that you indicated having seen whatever you saw as to how you were going to rule in this case?… Do you remember that?
RF: I do.
JT: Tell us about your recent reversal of the Third District Court of Appeals for having done this same thing.
TUMA: Objection, Your Honor.
JT: No, no. Excuse me, Judge. I’m sorry.
DT: I’m going to ask you if there’s an objection being made that you don’t say, "No, no." Okay?
JT: I apologize.
DT: Let’s just do this in a proper manner.
JT: I apologize.
DT: What is your legal objection?
TUMA: To the relevance to this case. It has no relevance to this case. It’s not an appeal of the case.
JT: Before you rule –
DT: Yes, I was going to ask you… are you talking about a ruling that has to do with the case that was filed –
JT: You bet.
DT: -right here?
JT: It has everything to do with it – and let me explain… you’ll see that the documents that were excerpted and read from [by Judge Friedman on direct examination] talk about… his terrific reputation out of the Third District Court of Appeals and what this witness has also said is that even if the things I said [about him] were true, that I had acted improperly. There has been reading from portions of letters about this Judge’s reputation and that he has a history of doing and acting improperly… this is not an isolated incident. So that when I recount what this Judge’s reputation is and what he does on a routine basis and the the Third District Court of Appeals has held him to task recently for having done the same thing to another litigant, then it goes to my credibility, it goes also to his credibility, and more importantly, it goes to the [Florida Bar] rule 4-8.2(a), which talks about whether or not lawyers can be critical of judges…
We’re here litigating in this trial – you call a hearing, other people call it a trial. It feels like a trial to me – that one of the issues is whether or not there is a reasonable basis for a lawyer to say something about a judge… So what he [Friedman] has done in another case in which he prejudged and which the Third District Court reversed him on for having announced his ruling before there was a hearing in the case goes to whether or not this was an isolated incident, whether or not I had any reason to say what I said about the Judge in these admittedly caustic letters, and whether or not I’m a truth teller, a prevaricator or someone who just makes this up out of whole cloth.
He’s the one who talked at his hearing… about what a great reputation he has out of the Third District when he’s just been reversed on doing pretty much what he did to me.
DT: Do you want to ask a question about Judge Friedman’s ruling in a specific case?
JT: If he’ll answer.
DT: Okay. Overruled… But if you’re going to ask him a question, you have to ask him a specific question.
(thereupon Friedman discusses a case involving a property dispute and a possible false arrest… )
RF: There was a motion to recuse, a motion denied, and the Appellate Court found I should have recused.
JT: On what basis?
RF: Having prejudged.
JT: Okay, and we never had the hearing in my case about the merits of the case. Right?
TUMA: Objection: Asked and answered.
JT: And your answer to that was no, just so the record is clear. Now we all make mistakes, right. I’ve certainly made some. Have you made some?
RF: I certainly have. And you may recall in that record, I said, "While I have general respect for the Third District, they don’t always agree with me."
JT: I understand. My wife, who loves me, doesn’t always agree with me… When I said Judge Reah Pincus Grossman [despised Friedman, see part 6], I got the wrong judge and her demise, I found out, is premature, as Mark Twain would say; but it was another judge, and I heard that story from someone whom I’ve known as a practicing attorney for 30-some years. Are there some attorneys who find you somewhat arbitrary in your jurisdiction?
TUMA: Objection, Your Honor, to relevancy.
JT: If you know.
RF: I don’t know. I do know that the Bar polls show that 10 percent of the lawyers don’t think I should be here. Ninety percent do. So apparently there are some who would agree with you.
JT: Did you see the homosexual activity in the game that Take Two – I would call them manipulators – but the Take Two employees, the ones who showed you portions of the game? Did you see that?
JT: Now, I want to see if you understand this. You’re not to be faulted for not being a video game player or for knowing how video games work and so forth. I’ve had a crash course since 1998 when I represented the families in Paducah whose daughters were killed by a kid who had played the same game that the killers at Columbine played and the… I lost my train of thought.
DT: You were saying you’re not to be faulted for not being a video game player.
JT: Right. That I remember.
DT: And that you got a crash course in it yourself.
JT: Right, I understand. Oh, forgive me. You said – and correct me if I’m wrong – your testimony was – and I’m not re-asking you the question. I want to get us on the same page here. You said in both the transcript here and here today that this game maybe should have a mature rating, but that that’s not for you to put on the game –
RF: That’s correct.
JT: – that it might be up to the legislature or whomever.
RF: That’s my thought.
JT: It’s my thought, too, in one regard. Do you know that legislatures – either state or federal – or municipalities can’t put a rating on a game?
RF: There is some entity that does the rating.
JT: Right. It’s owned by the industry, the ESRB.
RF: That doesn’t mean they can’t legislate to do something about that; but again, that’s not my job.
JT: Well, actually you can. Under Miller vs. California, which has a three-pronged test which one would apply to obscenity, you really couldn’t – and it would be unconstitutional and there have been Supreme Court rulings on this since the 30’s – that if government is to put a rating on a game – or back then on a movie -then you’re arrogating to the government a censorious function based upon an arbitrary rating type system as opposed to looking at each game on its own basis. Does that make sense?
RF: Okay. If you say that’s what the law is, that’s fine.
JT: And that’s what I wanted you to do, to take a look at this game… just this individual video game – and correct me if I’m wrong as to your understanding of what I was seeking for you to do, and that was to get the game before its release – and I appreciate your order granting me that portion of my relief. Then under the nuisance laws of Florida, which is one of, I think, eight states which allows an individual to serve in effect as a "private attorney general" to say to the government, I think this constitutes a public safety hazard; for you then to look at the game and make a determination not on what the rating ought to be but on whether or not this game ought to be sold to anyone under 17, which is roughly reflective of the industry’s system. Is that your understanding?
RF: I understand that; but it’s my belief under the case law and the Constitution, I can’t make a determination that it has to have a mature rating – even though I think it should – nor under the circumstances of the game could I prevent its distribution.
JT: Okay, but you didn’t hear my constitutional arguments and you didn’t hear from any experts and you didn’t get a fuller explanation of the Miller test as it applies to the violent material. You didn’t hear any of that because we didn’t have a hearing on that, did we?
RF: What we had was initial argument the very first time the matter was brought, and your position – as I recall – was so strong from what you thought of the game even though you hadn’t seen it –
JT: Well, I was basing it on reviews in magazines of people who had seen it.
RF: I understand – that I thought, okay. I will take the bull by the horns and I will look at this game, even though basically the case law says I don’t have to do that; that they [Take Two] have a constitutional right under the First Amendment to distribute this. Oh, wait a minute. If it’s that bad, then let me take a look at it; but I didn’t find it that [bad].
JT: But you didn’t see the whole game.
RF: No. I didn’t spend 200 hours seeing the whole game.
JT: Well, so we’re clear, you didn’t see the violent ending of the game, which would be the most violent part. You didn’t see the homosexual activity in the game… Let me ask you if you would be surprised by the following. David Walsh is the clinical psychologist who every year gives, at the Congress’ request, his Annual Video Game Report Card. Last year he stood between Senator Brownback, a Republican, and Senator Lieberman, an Independent, and Senator Clinton, a Democrat – I think. So he’s respected on both sides of the aisle and by an independent and has an organization, the National Institute on Media and the Family. Dr. Walsh, having seen the game – and he was following this litigation down here – saw the game and issued the opinion that this should be a mature-rated game. It should not have a teen rating and it should not be sold to anyone under 17. Would that surprise you, based upon at least the part of the game that you saw?
JT: So you know that by virtue of this game having received what at least Dr. Walsh and some others felt was a bogus – industry-provided through the ESRB – rating, released a game for sale to anyone of any age. Is that right?
RF: I don’t recall whether it’s anyone of any age. A six-year-old probably couldn’t buy this, but a teenager could.
JT: I can assure you there’s no checking of I.D.’s for teen-rated games.
TUMA: Objection, Your Honor, to the relevancy.
JT: And your testimony was that, even if everything I said was true, my having said it was abuse of my oath and of my status as a lawyer. Is that right?
RF: Yes, sir.
JT: That’s your view of what the canons require?
RF: Yes, sir.
JT: And that’s why you filed a Bar complaint against me?
RF: Yes, sir.
JT: That’s all I have, Judge. Thanks.