Posted on August 22, 2012 at 1:25 PM
CHARLOTTE, N.C. -- The Rev. Phillip “Flip” Benham, an anti-abortion activist convicted in 2011 of stalking a Charlotte doctor, has been granted a new trial.
The N.C. Court of Appeals on Tuesday ordered the new trial after ruling that the judge in Benham’s trial made a mistake in instructing jurors before they began deliberations.
Benham, director of the Concord-based Operation Save America, was convicted in July 2011 of stalking a Charlotte doctor by distributing “posters with abortion doctors’ names and photos. He was accused of passing out hundreds of posters that said: “Wanted…by Christ, to Stop Killing Babies.”
He was placed on probation for 18 months and ordered to stay clear of Dr. Curtis Lee Flood’s home neighborhood and remain 500 feet from the three clinics where the doctor works.
Superior Court Judge Joseph Turner had instructed jurors that to find Benham guilty of stalking, the prosecution had to prove that the anti-abortion activist placed Flood in fear for his safety and the safety of his family.
Benham, in appealing his conviction, argued that the warrant charging him with stalking made no mention of Flood’s family. The warrant only alleged that Benham had placed Flood in fear.
“The jury was instructed to find defendant guilty on a theory not included in the warrant,” the appeals court judges wrote in ordering the new trial. “The defendant was unable to prepare for trial on the theory that Dr. Flood was placed in fear for his family.”
But Benham said he’s not happy with the appeals court’s ruling. It has given him a new trial, he said, but has taken away his freedom of speech.
“What I do isn’t stalking,” Benham told the Observer Tuesday. “I’m exercising my First Amendment rights as a Christian to expose what is evil. This stalking law is devastatingly dangerous to free speech.
“They’ve gutted the First Amendment. We go all around the country and do this. We go to the abortionists’ homes, their practices and the abortion mills … . They want to censure the Gospel’s message. They want to get us off the streets. They want to silence our message.”
Benham, in appealing his stalking conviction, had also accused the judge of making a mistake when he allowed the prosecution to introduce evidence about a case that involved a “wanted” poster for a doctor who performed abortions in Wichita, Kan. That doctor, George Tiller, was shot to death in his church by an anti-abortion activist in 2009.
Benham argued that the evidence about Tiller was irrelevant and unduly inflammatory.
The appeals court judges disagreed. The “wanted” poster was relevant, they ruled, and its probative value outweighed any prejudicial effect.
Several doctors have been killed after similar fliers were distributed in other cities. In 1993, Dr. George Patterson was killed in Mobile, Ala., and Dr. David Gunn was killed in Pensacola, Fla. His replacement, Dr. John Britton, was gunned down a year later.
“Dr. Flood was concerned because other doctors had been murdered after similar WANTED posters were distributed prior to their deaths,” the appeals court ruling said. “The State’s purpose for introducing the Tiller poster was to show that Dr. Flood’s fear regarding the WANTED poster bearing his photograph, name and information was reasonable.
“Flood was a doctor who performed abortions … It was relevant for the jury to learn that the wanted posters in the past resulted in violence.”