Justices with the U.S. 10th Circuit Court of Appeals expressed concern that a county prosecutor in Utah would choose to prosecute someone under a flag desecration law that has been deemed unconstitutional since 1989 and that Salt Lake County law enforcement appears ill-informed about such rulings.

The harsh questioning against the state came during oral arguments held at a special session Wednesday at the University of Utah law school concerning a man who was charged under a Utah law that criminalizes the desecration of U.S. and state flags.

In October 2002, frustrated with the justice system, Kris Winsness burned the image of a "smiley face" onto a U.S. flag and hung it on his garage door.

Offended neighbors called the Salt Lake County Sheriff's Office, and a deputy was sent to investigate. Upon questioning Winsness, the deputy took the flag as evidence and later Winsness was charged by Salt Lake County District Attorney David Yocom's office with violating Utah's flag desecration law, which is a class B misdemeanor.

Ultimately, prosecutors dropped the charge against Winsness without prejudice, allowing them to refile the charge at any time. However, in an affidavit Yocom assured that he would not prosecute anyone again under the flag desecration law.

During oral arguments before U.S. Appellate Justices Monroe McKay, Michael McConnell and Timothy Tymkovich, attorney Brian Barnard held up a cocktail toothpick shaped like the U.S. flag to show that Utah's law is vague and unconstitutional.

"It doesn't define what a flag is," Barnard said.

But justices wondered if charges were dropped and Yocom has promised not to use the law again, what damages can Winsness claim?

At issue before the court is whether or not Winsness has legal standing to bring his case forward. Part of that is he must show he has suffered past — or will suffer future— damages because of the charge. Barnard pointed out that his client is damaged because there is not a criminal record of the charge. Explaining that the law was deemed unconstitutional by the U.S. Supreme Court to, say, a future employer is hardly a reality, Barnard said.

Justices saved their hard questions for Deputy Utah Attorney General Joel Ferre.

"A mistake was made" in prosecuting Winsness, Ferre said. This led the state to ultimately drop charges.

McKay said he was troubled that a prosecutor appeared to have no knowledge of "one of the most notorious cases of our time," referring to Texas vs. Johnson, the 1989 Supreme Court ruling that struck down Texas' flag desecration law. The justice went on to comment that there appeared to be serious ethical problems with Yocom's office filing a charge without adequate exploration of the facts.