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Maryland appeals court orders new trial for woman convicted of disorderly conduct

By David Hudson
First Amendment Center
07.08.99

A woman convicted of disorderly conduct in part for yelling curse words at a police officer is entitled to a new trial because the trial judge failed to instruct the jury on freedom of speech, a Maryland appeals court has ruled.

Pamela Dziekonski was charged in March 1998 with disorderly conduct after she continued to yell vulgarities at a police officer who was arresting her husband at a bar. She allegedly uttered several statements at the officers, including:

"Why are you locking up my f------ husband?" and "This is bull----, you're locking up the wrong guy."

After she was convicted by a Montgomery County jury, Dziekonski appealed. She argued that her conviction should be reversed because the trial judge failed to instruct the jury on freedom of speech.

She contended that the judge should have explained to the jury that only certain types of speech, such as obscenity and fighting words, receive no First Amendment protection. Her conviction was invalid, Dziekonski said, because it was based on speech protected by the First Amendment.

The Maryland appeals court agreed on July 2, noting that she "may not be punished if her speech was protected by the First and Fourteenth Amendments."

The court said that "it was for the jury to decide whether her words were obscene or constituted fighting words."

"Accordingly, we hold that the trial court erred in declining to instruct the jury that speech protected by the First and Fourteenth Amendments may not form the basis of a disorderly conduct conviction," the court concluded.

The state had argued that any error on the part of the judge in his instructions was "harmless" because the state attorney had emphasized Dziekonski's conduct, not speech, to the jury.

However, the appeals court in Dziekonski v. State of Maryland rejected the government's argument, noting that it had "no knowledge as to the basis upon which the jury convicted appellant [Dziekonski] of disorderly conduct."

The appeals court reversed the conviction and ordered a new trial.

Kathy Graeff, deputy chief of the criminal appeals division for the state attorney general's office, said that a decision on whether to appeal had "not been determined yet."

Dziekonski's attorney could not be reached for comment.


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