Judge Ponders Tossing Out Charge Against Son Of RUSH Guitarist

John Henderson of the Naples Daily News has issued the following report:

Opening arguments kicked off Tuesday afternoon in Collier County in the trial of the son of the guitarist for the rock group, RUSH.

In the meantime, the judge in the case said after the first full day of trial that he is still pondering a defense motion to throw out a resisting-arrest charge on the grounds that deputies made an illegal arrest.

Retired Senior Circuit Judge Charles T. Carlton's decision has the potential to kill the state's case even before jurors make a decision.

Carlton asked the prosecutor and defense attorney in the case to write up a brief memo bolstering their arguments about the legality of the arrest.

"Quite frankly, I'm loath to throw a case out or dismiss a case because of some stupid technicality," Carlton said. "But I have to uphold the law. I've taken an oath and I want to make sure I'm making the right decision."

Defense attorney Michael McDonnell argued Tuesday morning that deputies illegally charged Justin Zivojinovich on New Year's Eve 2003 with one count of resisting an officer with violence, a third-degree felony punishable by up to five years in prison.

The defendant is the son of RUSH guitarist Alex Zivojinovich, known professionally as Alex Lifeson.

McDonnell's argument is that when deputies took Justin into custody, at one point stretching his arms behind his back as they escorted him down the hallway of the Ritz-Carlton, Naples, Justin had committed no crime.

McDonnell also said that whatever had happened previously in the ballroom of the hotel wasn't witnessed by deputies, and under case law that had to occur before an arrest.

Justin Zivojinovich is accused of getting onto the house band stage at a New Year's Eve bash and being verbally abusive to Ritz-Carlton security, who called deputies.

"Mr. Zivojinovich had done nothing to constitute a felony (when he was taken into police custody)," McDonnell argued Tuesday morning. "He had done nothing to constitute a misdemeanor, and even if he had, the fact of that conduct (in the ballroom) was not performed in front of the investigating officers."

McDonnell painted a picture of Justin Zivojinovich as simply having a joyous time on New Year's Eve in the ballroom.

McDonnell showed a videotape to the judge made by a party patron that showed Justin in a white suit, gyrating disco moves on the dance floor. He twirled around with his hands in the air, at one point donning a pair of white gloves. At another point, several women had their arms wrapped around him.

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