Both sides in the MJ-Bubba shock jock trial want the judge to declare a mistrial.
Except when they don’t.
On Friday, lawyers for Todd "MJ" Schnitt asked for a mistrial, and they were opposed by lawyers for Bubba the Love Sponge Clem.
On Monday, Clem’s lawyers asked for a mistrial and were opposed by Schnitt’s lawyers.
The judge, so far, hasn’t granted anyone a mistrial.
And so the case continues.
Schnitt accuses Clem in a lawsuit of defaming him and his wife during a radio war that got personal.
After two weeks of trial, Schnitt’s lawyers rested their case Monday morning. Clem’s lawyers asked Judge James Arnold judge to throw out the case on the grounds Clem’s statements were protected by the First Amendment.
Arnold agreed to throw out five counts arising from five statements, three of which involved Clem labeling Schnitt a fraud, one in which Clem called him a snitch and another in which he claimed that something Schnitt did "screams of being premeditated and even possibly plug-ola."
But the judge is letting the trial proceed on 11 other statements, including allegations Clem defamed Schnitt’s wife by calling her a whore and Schnitt by saying he was "one of the top four or five people behind our arrest and the trial of the hog deal."
Before the judge ruled on that issue, Clem’s lawyers asked for a mistrial, claiming media coverage of last week’s DUI arrest of one of Schnitt’s lawyers – and allegations from Schnitt’s lawyers that the arrest was a setup by Clem’s legal team – would hurt Clem’s chances of getting a fair trial.
Lawyer Greg Hearing noted the story saturated the local media market and even was featured nationwide on "Good Morning America." He said most accounts failed to note that the judge found Clem’s lawyers had done nothing improper.
Schnitt’s lawyer, Jonathan Ellis, said accusing Schnitt’s team of fomenting negative publicity about the other side was "the pot calling the kettle black" because Clem talked about the DUI arrest on the air.
"Now to turn around and say we should get a mistrial is absolutely inappropriate," said Ellis, who on Friday sought a mistrial after alleging a setup.
Arnold denied the request from Clem’s lawyer, saying the integrity of the jury was not compromised. Ellis on Friday reserved ruling on the mistrial request from Schnitt’s lawyers.
The first witness to take the stand for Clem was former Clear Channel chief executive officer Randy Michaels, who called Schnitt "brilliant and talented" but said squabbling between the two radio personalities became "a distraction," prompting him to tell them to tone it down.
Both worked for Michaels at the time.
Michaels described Clem as "hyperbolic, bigger than life" and a professional wrestler who performed "theater of the mind" but who didn’t intend to incite any actual violence against Schnitt.
For example, he said, when Clem was calling for a "funeral in the streets" for Schnitt, he was repeating a line from New York radio personality Howard Stern who once called for a mock funeral for a competing radio jock in Philadelphia.
Michaels said he knew of no instance in which Clem called for actual physical harm to be done to Schnitt.
Clem’s lawyers also used testimony from a former Schnitt producer. who now works for Clem, to introduce recordings of Schnitt talking on the air in crude terms about his own wife.