On appeal, conviction of anti-abortion leader in 2011 negated on technicality
By Gary L. Wright
Originally published at The Charlotte Observer: Tuesday, Aug. 21, 2012
CHARLOTTE — The Rev. Phillip â€śFlipâ€ť 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 Benhamâ€™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 â€śposters with abortion doctorsâ€™ names and photos. He was accused of passing out hundreds of posters that said: â€śWantedâ€¦by Christ, to Stop Killing Babies.â€ť
He was placed on probation for 18 months and ordered to stay clear of Dr. Curtis Lee Floodâ€™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 Floodâ€™s family. The warrant only alleged that Benham had placed Flood in fear.
â€śThe jury was instructed to find defendant guilty on a theory not included in the warrant,â€ť the appeals court judges wrote in ordering the new trial. â€śThe defendant was unable to prepare for trial on the theory that Dr. Flood was placed in fear for his family.â€ť
Street preacher Flip Benham allowed to remain on bond: Accused of breaking court orders after stalking conviction last year, Benham was victorious in a recent bond revocation hearing on Aug. 10. Read more…
But Benham said heâ€™s not happy with the appeals courtâ€™s ruling. It has given him a new trial, he said, but has taken away his freedom of speech.
â€śWhat I do isnâ€™t stalking,â€ť Benham told the Observer Tuesday. â€śIâ€™m exercising my First Amendment rights as a Christian to expose what is evil. This stalking law is devastatingly dangerous to free speech.
â€śTheyâ€™ve gutted the First Amendment. We go all around the country and do this. We go to the abortionistsâ€™ homes, their practices and the abortion mills â€¦ . They want to censure the Gospelâ€™s message. They want to get us off the streets. They want to silence our message.â€ť
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 â€śwantedâ€ť 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 â€śwantedâ€ť 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.
â€śDr. Flood was concerned because other doctors had been murdered after similar WANTED posters were distributed prior to their deaths,â€ť the appeals court ruling said. â€śThe Stateâ€™s purpose for introducing the Tiller poster was to show that Dr. Floodâ€™s fear regarding the WANTED poster bearing his photograph, name and information was reasonable.
â€śFlood was a doctor who performed abortions â€¦ It was relevant for the jury to learn that the wanted posters in the past resulted in violence.â€ť
– Observer staff researcher Maria David contributed