Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SATURDAY, December 10, 1994 TAG: 9412120029
SECTION: VIRGINIA PAGE: B1 EDITION: METRO
SOURCE: SARAH HUNTLEY STAFF WRITER
DATELINE: LENGTH: Medium
An embittered radical went up against the Establishment. The politician and his aggressive Richmond lawyer came out swinging. And after spurts of rhetoric and minimal discussion about the facts of the alleged offense, a General District Court judge threw out the case.
The battle stemmed from a complaint filed by political activist D. Benjamin Porter, who alleged that Agee violated election law by passing out pro-Republican campaign literature too close to a polling place Nov. 8.
Porter testified that he saw Agee stand 27 feet from the door of the polling station and hand out sample ballots to two voters. Election law requires that campaign supporters stay at least 40 feet away from polling site entrances.
Porter, who himself picketed outside the site on Election Day, wearing a sandwich board that opposed Oliver North's Republican bid for Senate and supported elected school boards, knows the regulations well. He admitted he has had several run-ins with election authorities and police over his protests.
"During almost every election since I was 21 I've picketed outside my polling place, and almost every time, police officers and election officials have shown up to question me," he said. "I've been handcuffed and removed."
Agee's attorney, Donald Lemons, tried to call Porter's credibility into doubt, citing those incidents, a 1971 petty larceny conviction against Porter in New York state and a previous drug case in which Porter pleaded guilty to disorderly conduct.
Lemons also argued that Porter has a prosthetic left eye which might impair his vision.and entered into a line of questioning about Porter's birth name.
D. Benjamin Porter was born David Paul Porter, but he changed it when he applied for a marriage license. According to Porter, a village clerk in New York state told him men were also allowed by law to change their names when they got married.
"When I was in college all my roommates were named David," Porter explained during a court recess. "So we gave each other nicknames." Porter's was Benny because he listened to Big Band music by Benny Goodman. Soon the name caught on in the small college community.
"I'd go to the bank to cash a check and the teller would be someone's girlfriend who knew me as Benny. It would take an hour to get my money," he said.
The name D. Benjamin Porter appears on his voting registration card and current driving license.
"So what if the great defense attorney can show [Porter] might not be the best person in Salem? What's that got to do with what he saw?" argued Montgomery County Assistant Commonwealth's Attorney Skip Schwab, who prosecuted the case. "They have shown that he is not in the mainstream of American society, but because he is on the fringe politically, are we to believe he cannot see a crime committed by someone in the mainstream?"
In the end, it was a legal technicality that led to the dismissal of the case.
Porter's complaint was filed by a magistrate. According to the law, as interpreted by Judge George W. Harris Jr., complaints of this nature must be filed by the commonwealth's attorney.
After the hearing Agee said it's a "mystery" to him why Porter filed the complaint.
"I never met the man, never talked to him and didn't speak with him that day," Agee said. "I've seen a lot of strange things in my 15 years of public office, but this is the strangest."
by CNB