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McDonald Did Not Violate Probation, Court Decides

Deputy D.A. alleged blog post was a violation.

Posted: March 6, 2008 4:27 p.m.
Updated: May 7, 2008 5:02 a.m.
A San Fernando Superior Court Commissioner denied a motion filed on Tuesday morning by county Deputy District Attorney Heather Borden alleging that Dwight McDonald violated the terms of his probation when he responded to a local blog regarding the outcome in his criminal trial.

Commissioner Martin Gladstein denied the Motion to Set Probation Violation Hearing, stating that there was not enough evidence to determine whether McDonald, in fact, violated his probation when he posted a response to an entry on regarding his trial.

"There was not sufficient probable cause," said McDonald's defense attorney Ross Stucker. "The judge did not find any evidence to move forward."

McDonald, a retired California Highway Patrol officer and former City Council candidate, was convicted of assault with a deadly weapon after he attempted to run over a jogger with his car in 2007. He was sentenced on Feb. 11 to serve 60 days in jail, pay a fine of $145 plus penalties and attend weekly court-ordered anger management sessions. The CHP revoked his permit to carry a concealed weapon, and he will be on probation for three years.

One day after the sentencing, a post on discussed McDonald's sentence, to which someone using the name Dwight McDonald responded. Borden, who subpoenaed the IP address from blog owner Jeff Wilson, argued the comment violated the terms of McDonald's probation.

"This motion stemmed from the fact that McDonald's probation terms prohibited him from threatening, annoying, molesting or harming the victim," Borden said prior to filing the motion. "He can talk about the case in general, though."

Yet with Borden's motion denied, she will not be able to move forward in demonstrating how exactly McDonald's post violated the terms of his probation.

According to Jim Ewart, legal counsel for the California Newspaper Publishers Association, the denial came as no surprise. "Usually in a contest where a party in an action is limited to speaking about what happened in the case, it's because of a gag order," he said, "Once trial is complete, then the gag orders are generally dissolved and all parties are free to speak about the case as how they feel about the case."

Ewart added that McDonald was protected by the First Amendment despite the probation terms, and Borden's motion may have done more harm than good.

"The First Amendment still protects against unreasonable restrictions, such as a probation term," he said. "Now the District Attorney has kind of legitimized this guy's rant."


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