Attorney invokes First Amendment defense for cross-burning

Monday, February 16, 1998

AP Photo

KANSAS CITY, Mo. (AP) — The fate of three men accused of burning a cross on the lawn of a Portuguese woman was in a jury’s hands Friday, hours after a defense attorney said such a display was their First Amendment right.

Assistant U.S. Attorney Matt Whitworth said in closing arguments that the men’s behavior was caused by “hatred, bigotry, and ignorance,” and told the jurors to reject it.

“What we’ve witnessed is something very ugly,” Whitworth said in U.S. District Court. The cross-burning happened at the home of Rushville resident Liza Costa on Aug. 22.

Dennis Pospisil, 31, his brother, Barney L. Pospisil Jr., 37, and Ted P. Fenton, 28, are charged with two counts each of violating Costa’s civil rights. Dennis Pospisil faces an additional charge of carrying a firearm during a violent crime.

The older Pospisil and Fenton each face up to 20 years in prison. Dennis Pospisil faces up to 25 years.

Thomas Bradshaw, Dennis Pospisil’s lawyer, asked jurors “to keep in mind the First Amendment” during deliberations.

He read the amendment to the panel, saying, “that constitutional right to freedom of speech is like a blanket that covers our country. … It covers those whose beliefs that we agree with and those whose beliefs and feelings that we despise.”

He said such freedom of expression “does not end at the fence around the Costa house.”

The jury got the case Friday about 12:15 p.m., broke for lunch, then resumed deliberations about 1:15 p.m. The panel had two questions; one on gun charge for Dennis Pospisil, the other to request a copy of the jury instructions and a magic marker.

Also, Judge Joseph E. Stevens Jr. left after hearing the jury questions. No explanation was given and Chief Magistrate John T. Maughmer was assigned to the case.

Dennis Pospisil, who has admitted to setting the cross on fire, testified Thursday that he was devastated when he found out Costa was single and had three children.

“I felt like crawling into a hole,” Pospisil testified, saying he mistakenly believed a black man had moved in with a white woman. “I don’t think the children should have been subjected to it.”

According to testimony, some in Rushville thought a black man was living with Costa after seeing her brother—who has darker skin than his sister—helping her family move in.