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Closing Arguments Presented In Dead Kennedys Trial

Attorney advises jurors not to be swayed by Jello Biafra's celebrity.

SAN FRANCISCO — In his closing arguments Tuesday (May 16), attorney David Phillips told jurors not to be swayed by the fame of former Dead Kennedys frontman Jello Biafra.

"Do the laws apply equally to Mr. Biafra, or is he excused [from financial obligations and fraud charges] because of his celebrity?" Phillips asked the jury.

Biafra's ex-bandmates — guitarist East Bay Ray (born Ray Pepperell), drummer D.H. Peligro (Darren Henley) and bassist Klaus Flouride (Geoffrey Lyall) — are suing him for allegedly mismanaging the punk-rock group's catalog and royalties. Biafra (born Eric Reed Boucher) is countersuing Ray, charging him with mismanaging the band's business partnership, Decay Music.

Phillips presented his closing arguments for well over an hour. Biafra took notes but cast his gaze downward. Ray, Flouride and Peligro sat and watched intently as their lawyer asked the jury to find in their favor.

The three ex-bandmates maintain that Biafra and Alternative Tentacles — the band-founded label owned solely by Biafra since 1986 — disguised a retroactive royalty adjustment of more than $76,000 and used it as a bargaining chip for negotiating the label's contract to license the band's music.

Since 1998 the seminal San Francisco punk rockers have been split by the legal battle, which has culminated in a civil trial waged in Superior Court for close to three weeks.

Biafra is also accused of failing to adequately promote the band's back catalog and failing to pay back royalties. In his countersuit, he claims that Ray has been taking a percentage of the band's royalties for managing the band's business, without his consent.

Biafra looked pained as his attorney, John Stewart, hammered away at Ray's accounting methods. Ray looked to the jury with wide eyes as Stewart said that Ray's entire testimony was suspect. At one point, perhaps for the first time since the trial began, the plaid-clad Biafra looked across the room at his former bandmates with an awkward half-smile.

Following Phillips' arguments, the tall, green-suited Stewart, attempted to discredit Phillips' claims. He worked to establish that Biafra was the key bandmember, the one who provided the bulk of the creative ideas. Biafra has sole credit on 35 of 78 Dead Kennedys songs and, according to Stewart, he wrote the lyrics for the rest.

At issue is who owns the music and who will control the future of the Dead Kennedys catalog, which includes classics such as "California Uber Alles" and "Holiday in Cambodia" (RealAudio excerpt).

Phillips called attention to several contracts with third parties, which list Decay Music as the publisher. But, pointing to a 1991 agreement signed by all four bandmembers in which the band sought to outline how the band's partnership was supposed to work, Stewart said the agreement makes no statement about ownership and that individual songwriters — usually Biafra — own the rights to individual songs.

Phillips charged that Biafra used his label to promote his solo career instead of promoting the Dead Kennedys catalog. Biafra maintains that because he is the best-known bandmember, his solo career functions to promote the band's catalog.

Offspring frontman Dexter Holland testified Monday to back up that claim. Holland and others also said that record companies do not normally promote a band's back catalog, except in conjunction with new activity.

Stewart said that remastered versions of old albums or a live album — either of which would warrant catalog promotion — were not out of the question but that the bandmembers had been fighting through lawyers for so long that there was no chance for such a project to get under way.

As they begin deliberations Wednesday, the 12 jurors must consider more than 200 documents and exhibits, including Dead Kennedys albums, cover art, royalty-payment sheets, e-mails, faxes, letters and publicity photographs. A decision is expected within the next few days.

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