Sunday, June 28, 2009
by Robert Norse
June 27, 2009
Editors Note: HUFF has been holding a protest for 2 hours each Saturday afternoon in front of Bunny's Shoes, one of four participating Pacific Ave. businesses who filed declarations for the City's Civil Public Nuisance lawsuit against a homeless couple for the "crime" of sleeping out of doors. Anna Richardson was born in Santa Cruz, but became homeless at age 14. Miguel deLeon, who goes by the nickname Lito, has been Anna's partner for the past 3 years. Both are musicians on Pacific Ave. and support themselves through tips. Neither of them are receiving payments from any government organization.
Santa Cruz, Ca. -- Bunny's Shoes, Property managers at Borders and the Palomar, and Manthri Srinath, owner of Lulu Carpenters all contributed to a discriminatory court Injunction, granted last month by Judge Paul Burdick against two homeless musicians, Anna Richardson and Miguel deLeon.
This injunction bans Richardson and deLeon from sleeping anywhere in a park or on the sidewalk in the downtown area on pain of jail. City law additionally bans them from sleeping anywhere on public property in Santa Cruz after 11 PM.
It has nothing to do with any kind of real criminal conduct or nuisance behavior like littering, trespassing, disturbing the peace, urinating, defecating, etc. Simply sleeping outside downtown has become an immediate jailing offense for these two. So far police have not arrested them.
The impact of the decision expands far beyond these two performers, since there are 1500-2000 homeless in Santa Cruz of whom less than 10% have shelter throughout the summer.
Homeless people face $97 citations, police harassment, theft and destruction of their property, and discrimination.
It is piling absurdity upon cruelty to ban sleeping downtown on pain of jail, yet allow no legal place for homeless people to sleep. MC 6.36.010 makes all nighttime sleeping illegal outside on public property already; the Injunction adds a jail penalty to the downtown area for this homeless couple.
Activists will continue presenting their Pledge on Human Rights and Harmony for merchants to display in their windows or in their stores in solidarity if they choose. So far about about 1/2 of the businesses downtown have been approached.
Mediators have approached Bunny's asking them to post the Pledge and support a policy of non-discrimination. Bunny's is one of four stores signing Declarations used by the City Attorney to secure the Injunction against Richardson and deLeon.
While we respect the right of Bunny's to manage its own property, when it supports police action on public property against those that have no choice, it needs to hear from the community--as does every business that supports this kind of "get-out-of-town" bigotry.
Robert Norse's entire article can be found at: http://www.indybay.org/newsitems/2009/06/27/18604210.php
Saturday, June 20, 2009
by Becky Johnson
June 28 2009
Santa Cruz, Ca. -- Okay class, let's review what we learned about our justice system in Civics class. A person is innocent until proven guilty. A person may not be tried twice for the same crime. A jury finds a defendant guilty beyond a reasonable doubt. A guilty person is sentenced and must do their time. Once they have served their sentence, they are said to have paid their debt to society and are freed. They can even vote. Right?
Wrong! Not in District Attorney Bob Lee's roost at the Santa Cruz County Courthouse where all of the above is being turned on it's ear. But first a little history lesson is in order. Former District Attorney, Art Danner teamed up with then Assistant DA Ariadne Symons in 1997 ( Bob Lee was elected DA in 2002 and Symons was elected Superior Court Judge in June of 2008). Their task was to circumvent a ruling handed down by Judge Thomas Black when he ruled Schmidt should be tried by a juvenile court in 1989. Donald Schmidt, who grievously committed rape and murder of a 3 yr old child, was 16 years old, at the time of the crime, and Judge Black ruled that due to his " his limited intelligence and maturity," he should be tried under the Juvenile Justice System.
Schmidt was tried for rape and murder by Judge William Kelsay and convicted on 1 count of first degree murder and 1 count of forcible rape, however, the rape charge was overturned on appeal due to prosecutorial error and a charge of 2nd degree murder was affirmed. Schmidt has been incarcerated ever since. He is now 37, and the oldest ward in the California Juvenile Justice System. Currently he is housed at the Herman G. Stark Youth Correctional Facility in Chino.
KEEPING A MAN IN JAIL AFTER HE HAS SERVED HIS SENTENCE
Symons, certain that a mistake had been made by trying Schmidt as a juvenile, set out to make sure that the verdict SHE wanted, would be had. She and District Attorney Art Danner, found what the New York Times calls "a rarely invoked state code," and the SENTINEL calls "a little-used provision" Section 1800 of California's Welfare and Institutions code, in order to undo the now-deceased Judge Black's verdict.
Schmidt was taken to court every two years, and tried to determine if he was found to have serious mental problems that impede his ability to control his behavior.
Under this method, Symons tried Schmidt 5 times and was able to extend his time beyond his original sentence another 12 years. During this time, Schmidt has committed no new crime, has been called "a model prisoner" by his handlers, and hasn't even had a write-up since 1994. He has completed high school while incarcerated, now works as the supervisor of a work detail which paints the facility he is in, and has a girlfriend his own age who knows about his past. But you would never know this, to hear Symons talk.
In an National Public Radio interview on July 4, 2005, DA Ariadne Symons confirmed that her goal was to circumvent Black's verdict when she said "that he should in fact have received life in prison."
That interview can be found here.
Lee was quoted in a 2009 New York Times article as saying "We believe he's a psychopath, and we believe he has no regrets or remorse for his conduct."
But is he? Bob Lee is NOT a licensed psychologist or psychiatrist. So what have the psychiatrists said? Schmidt's seven-person treatment team at the Herman G. Stark Youth Correctional Facility in Chino agreed to testify on his behalf, saying he has been rehabilitated. Clinical psychologist, Richard A. Starrett, testified April 17, 2009 before Judge Robert B. Atack saying that while Schmidt was still a danger, "he was not a psychopath".
When Ariadne Symons went before the press in 2005, she said "Once a sociopath, always a sociopath." She claimed that Schmidt had failed to benefit from years of treatment, had never acknowledged his guilt, and had shown no remorse. However, her ONLY evidence was to retell the grisly details of the original crime, minus a few details.
WHAT THE PUBLIC NEVER HEARD
In 2005, Symons did not say that Leslie Silvola, the mother of the murdered child, had plead guilty to 1 felony count of distributing methamphetamine to a minor (Schmidt). She did not say that Silvola had originally been charged with 9 felony counts; 6 for furnishing illegal drugs and 3 for child endangerment. She didn't mention that a neighbor, Gail Levey, had filed two complaints with the Child Protective Services which were belatedly responded to and for which no abuse was found during the single visit they made.
Gail Levey testified at Silvola's hearing in 1989 that CPS "is already guilty of one murder. They killed Marihia. They had ample information to prevent her death."
There was no mention of the missed CPS reports in the 2009 New York Times, the current San Jose Mercury News articles, or the National Public Radio report of 2005. And missing from all three of the SENTINEL's 2009 articles was any report on either the CPS complaints OR that DA Art Danner reported in 1989 that all of the very young Silvola daughters had been sexually assaulted.
It's as though the SENTINEL reporter had no access to the paper's own archives. Or more likely, the reporters exclusively took their lead from Adiadne Symons, who had her own axe to grind and career to build.
DA Art Danner reported in 1989 that both of the surviving young sisters showed "irrefutable" medical evidence of a sexual assault in the weeks before her sister was raped and murdered. Danner also said "There's evidence on the 7-month old." No one in this case contends that Donald Schmidt was ever in the Silvola home prior to the night of the murder. So, the evidence shows that Silvola had been selling methamphetamine out of the home, provided meth and alcohol to minors and adults. All of her three daughters under the age of four had been sexually assaulted. Apparently baby-rape-meth parties were a common event at the Silvola household. Danner also said the girls were suffering from malnutrition as well. In exchange for testifying against Schmidt, Silvola plead to 1 felony and 1 misdemeanor. She has never admitted to her culpability in providing Schmidt with both meth and alcohol that night.
But for Symons, a scared, angry, messed-up 16 yr-old who was under the influence of a powerful, illegal drug which causes hypersexuality, and alcohol, which removes inhibitions, who was left alone in a bathroom by the mother with Silvola's 3-yr-old daughter naked in the tub -- he was to be held accountable for all the blame.
Inexplicably NPR's Richard Gonzales in 2005 reports that Schmidt raped the girl "while Mr. and Mrs. Silvola entertained guests in another room." The court testimony reveals that there was no "Mr." Silvola in the household. No father of the Silvola daughters was anywhere to be found. Instead, those court records claim that while Schmidt was assaulting Marihia, Leslie Silvola, the girl's mother, went through Schmidt's pockets to see if he had stolen anything from her. That is how little she trusted him. But the chaotic and criminal hell the girls were living in was completely sanitized from local news reports. In fact, according to the 2005 NPR report, any culpability by the mother was entirely missing from the report. And no mention is made that he has already served his sentence and has already been held an extra 12 years.
Instead, Leslie Silvola is pitched as the grieving mother, who lost her darling daughter, who she loved and cared for. A little girl who would be alive, happy, and healthy today if it were not for Donald Schmidt.
SENTINEL SANITIZING OF LOMPICO METH DEALER
In an April 30, 2009, SENTINEL article by Cathy Kelly, she quotes Leslie Silvola, the single mother of four daughters from Lompico and who now lives in Michigan :
"He's a very sick person," she said. "I am so afraid if he gets out he will repeat what he did to another child. I don't want to see any parent have to go through anything like this. It's the worst thing to lose a child and the way that he murdered her ...
"It tore my family apart; I'll never get over it."
SENTINEL writer, Kelly continues:
Silvola said she went through years of counseling after the murder and regained custody of her other two daughters. But, she said, she remains "so heartsick I can't stand it.
"She was such a wonderful child," she said. "I'd get up in the morning and she'd help me. She'd get diapers for her little sister and go shopping with me. People were just amazed by her. We'd sing Twinkle, Twinkle Little Star' together every night."
found at: http://www.mercurynews.com/centralcoast/ci_12260136?nclick_check=1
No mention of the evidence of similar sexual assaults on her two-year old daughter, A___, or her 7-month old daughter, C____. Assaults which must have occurred before Schmidt had ever darkened the doorway of her home. No discussion that meth itself, causes hypersexualization.
SWORN TESTIMONY OF NEGLECT AND ABUSE
GAIL LEVEY testified about Marihia's mother, Leslie Silvola in 1989 saying that the Silvola children, including one child in diapers, "would show up at my house filthy and hungry." Levey had also told the CPS that she believed that Silvola was selling drugs out of the house. She was so disturbed at the lack of response by CPS that she testified they were "already guilty of murder. They killed Marihia. They had plenty of evidence to prevent her death."
While the failure of CPS to investigate those complaints was a big story back in 1989, it is totally missing from any current narrative. Schmidt testified in 2005 that his youth was a living hell. He had been sodomized by his biological father, three men from his church, and his foster father. He had dropped out of high school in Fremont, Ca., and become a runaway. As far as he knew, life consisted of meth, alcohol, and the powerful abusing the powerless. When he raped Marihia in that bathroom, he was getting back at all those who had abused him, and modeling what adults were doing in the world that he knew.
CLEAR EVIDENCE OF REHABILITATION
According to Chuck Blanford, a volunteer mentor at the facility in which he is housed, the night Schmidt was arrested for rape and murder was the night his life was saved. The sexual abuse against him stopped. He was able to get the therapy he needed to recover from his own abuse. He was able to mature, to understand what had happened to him, and eventually to admit his crime and show remorse.
Even while still at Juvenile Hall in Felton, Ca., he got a girlfriend his own age. She spoke to him regularly through a glass window, but had no physical contact. He continued to write her after she was moved to a group home.
Because Schmidt is very personable he is well-liked, and women are attracted to him. Symons calls Schmidt's interest in women his own age as "continuing to prey on vulnerable women with small children." She claims this is evidence of predation against children, but it is actually evidence he is not a pedophile, and is able to form mature relationships with adult women.
DA Rob Wade, who took over after Symons was elected Judge, claimed that Schmidt was "manipulative" and "a sexual sadist."
WHAT THE JURY NEVER HEARD
Each jury would be dragged through the gory details of that late December night in 1988, but without revealing the extent to which the mother was also culpable. All they knew is that the mother had been convicted on one felony amphetamine charge and 1 misdemeanor charge of child neglect. They learned nothing of the failure of the CPS to properly investigate. The jurors never heard that the 2-yr-old daughter and the 7-month old daughter both showed physical evidence of sexual assault that Danner called "irrefutable."
All they heard was that this "sociopath" and "predator" was responsible for this reprehensible crime and that only the jurors could keep another child safe from this monster. They put the jurors in an impossible position. Under our system of laws, being tried twice for the same crime, is called double jeopardy, and is illegal. Yet Donald Schmidt has been tried again and again for the same crime: a crime he committed as a juvenile, which involved other adult predators, and which spotlighted the failure of a government agency. The DA's office did it by using a Health and Institutional code 1800 which is rarely used by anyone. They asserted that Schmidt still was dangerous, in direct conflict with sworn testimony from his State-certified treatment team. And that he has no regrets or remorse for his conduct. And they told jurors that WHEN Schmidt re-offends, they will regret any decision to allow his release.
On June 25, 2009, after two hung juries, District Attorney Bob Lee announced that Schmidt would ONLY be incarcerated for one more year ending what might have been back to back hung juries with no end in sight.
SOURCES: NYT "A Killer at 16, and Still in California’s Juvenile Justice System Decades Later" by JESSE McKINLEY April 25, 2009
SJ Mercury News "Returning Kids to Abuser Stupid" by Joanne Jacobs Sept 14, 1989
NPR "A State's Oldest Youth Offender" All Things Considered July 4, 2005 - Richard Gonzales
Santa Cruz SENTINEL "Second mistrial declared in convicted child killer's bid for freedom" By Jennifer Squire 06/05/2009 found at: http://www.insidebayarea.com/california/ci_12525284
TOPIX forum comments provided by two jurors, Schmidt's former girlfriend, his mentor, Chuck Blanford, Leslie Silvola's daughter, Cyndi, and from neighbor, Gail Levey in May and June of 2009
"CA Fights to Keep Adult-labled Psychopathic Killer in Custody"-- April 26, 2009 by TChris of TALKleft
"The shame of medicine: the Depravity of Psychiatry" by George Mason University economics professor Bryan Caplan May 2009 found at: http://www.thefreemanonline.org/columns/the-therapeutic-state/the-shame-of-medicine-the-depravity-of-psychiatry/
Sunday, June 14, 2009
Robert Norse interviews a street musician for
Free Radio Santa Cruz on June 6, 2009
by Robert Norse
June 9, 2009
Originally published at: http://www.indybay.org/newsitems/2009/06/09/18601194.php
Santa Cruz, Ca. -- Judge Ariadne Symons in a decision upholding arbitrary police power found me guilty of "refusing to leave a business when asked" after a security guard accosted me. The guard was offended by my demanding his name and badge number and recording his refusal to identify himself. He called the police to have me removed in a show of force last November. He told the police that I was blocking the 6' long "Metro Transit Center" lettering. imbedded on two sides of the large concrete block that faces Pacific Avenue. Rather than be bullied, I took a ticket which will now cost $246 or 31 hours of community service.
THE JUDGE'S RULING AND SENTENCE
First, Symons ruled, the security guard and supporting police officer were correct in citing me under the vaguer 9.60.010 REMAINING ON BUSINESS PROPERTY AFTER A REQUEST TO LEAVE rather than the more specific and protective 9.62.010 TRESPASS ON PUBLIC TRANSIT FACILITIES. This was because I had "not been given a written notice" as specified by 9.62.010 and because 9.62.010 "doesn't apply to the first instance of trespass."
Then, she ruled, no First Amendment rights applied because the public entrance to the bus station was not a full "public forum" even though owned by the public.
The security guard's exclusion of me,she further ruled, came from a "content-neutral" position that nothing to do with the content of the speech or expression involved.
Symons continued: I had been violating a rule, because a manager who showed up later, though she did not testify in court, said on tape that she objected to my tape recording herself (though she cited no Metro rule or public law prohibiting it).
Further, the judge noted, though the tape did not conclusively show I was "blocking" the 6' long sign by standing conversing there., I was "disingenuous" in claiming I "might be waiting for the bus" because after the security guard said he wouldn't want to prevent anyone from taking the bus, I was silent. (The inference, perhaps, being that (a) the guard showed his lawfulness by allowing me to stay if I were "waiting for a bus, and (b) that I had to have some justifiable reason to stay in the face of a guard's demand that I leave).
She fined me $248 and agreed to commute that to 31 hours of Community Service. She refused to stay the sentence pending possible appeal until my attorney objected that she was required to do so by law.
THE TWO LAWS IN QUESTION
9.62.010 TRESPASS ON PUBLIC TRANSIT FACILITIES. reads
"Every person who enters or remains on or in a public transit facility (including, without limitation, a metro center, transfer center, or other passenger boarding or deboarding facility, or bus owned or operated by Santa Cruz Metropolitan Transit District) after having been notified by the owner, operator, or other person in charge thereof that consent for such person to enter or remain on or in such facility has been withdrawn is guilty of a trespass and may be prosecuted for the commission of a misdemeanor or infraction.
"Such notification that the owner, operator, or other person in charge has issued a withdrawal of consent for a person to enter or remain on or in a public transit facility shall be given in writing. Such withdrawal of consent shall specify the period of time (not to exceed fourteen consecutive days) and the particular public transit facilities from which the person to whom the notice is given (recipient) shall keep away.
"Such notice shall also contain a statement informing the recipient that he or she may appeal the issuance of the withdrawal of consent to the issuing person’s superior (hearing officer). The withdrawal of consent shall be stayed pending the conduct of an informal due process hearing on the appeal unless the hearing officer determines that the presence of the recipient will cause a substantial and material threat:
(a) To the orderly operation of the public transit facility; or
(b) Of significant injury to person or property. A withdrawal of consent may be issued only to a person who has (within the issuing person’s present) violated duly adopted written rules or regulations applicable to a public transit facility or otherwise disrupted the operation of a public transit facility in a manner proscribed by statute or ordinance.
MC 9.60.010, the law under which I was cited, REMAINING ON BUSINESS PROPERTY AFTER A REQUEST TO LEAVE reads:
(a) No person shall willfully remain upon any business premises, whether indoors or outdoors, after being notified by the owner, lessee, or other person in charge thereof to leave.
(b) No person, without permission, express or implied, of the owner, lessee, or other person in charge of business premises, shall enter upon such premises after having been notified by the owner, lessee, or other person in charge thereof to keep off or to keep away therefrom.
(c) The notification referred to in subsections (a) and (b) of this section may be given orally or in the form of a written notice, posted in any conspicuous place; in either case, the notice shall identify the prohibited area and the time period, if limited, during which such prohibition remains in effect.
Section 9.60.010 shall not apply in any of the following circumstances:
(a) Where its application results in or is coupled with an act prohibited by the Unruh Civil Rights Act or any other provision of law relating to prohibited discrimination against any person;
(b) Where its application results in or is coupled with an act prohibited by Section 365 of the California Penal Code or any other provision of law relating to duties of innkeepers and common carriers; or
(c) Where its application would result in an interference with or an inhibition of any exercise of a constitutionally protected right of freedom of speech or assembly.
RUBBERSTAMPING POLICE USE OF THE BROADER LAW
Judge Symon's conclusion about the more specific MC 9.62.010 not being usable is fallacious.
In the language of that law, I "remained" after being "notified by...the person in charge" [the security guard] that "consent to remain...has been withdrawn", informing me I "can appeal...to the issuing officer's superior [acting as an informal] hearing officer". He or she would then determine if I were causing "a substantial and material threat to the orderly operation of the facility or threatening significant injury to person or property." In which case I could not have been ordered off the property until a formal hearing within 14 days. None of that was provided.
Naturally--because I was being neither disruptive of business nor destructive of property. But I wonder if the security guards are even informed of the existence of this law. It protects members of the public more fully from arbitrary police action than the broader MC 9.60.010. It requires they call a superior, give written notice, etc. Why bother when you can just call a cop and write out a ticket under the other law?
Still state law and judicial precedent requires, particularly in a place like a public facility such as this, that there be due process and good cause before someone is denied access. That is specifically provided for in this statute. The very name of the statute makes it obvious which law should be used.
There is no language in the statute which suggests it can't be used on the "first trespass" as claimed by Symons.
FIRST AMENDMENT RIGHTS
Even the second broader law under which I was convicted, does not allow "interference with or an inhibition of any exercise of a constitutionally protected right of freedom of speech or assembly." The judge essentially upheld the security guard's right to order someone off the property on a pretext--for conduct that was neither illegal, disruptive, or proscribed by Metro rules. It simply upset him that I was demanding his name when he insisted on speaking with me and that I was tape recording his answers.
Another First Amendment issue involved here, not mentioned by the judge, was the broadcaster's right to investigate a problem (religious sermons being broadcast on public money, harassment of homeless and poor people at the Metro by security guards and police). I was not soapboxing, but talking in a normal tone of voice with two homeless people, gathering information.
And when the guard came up to do to me what may have been done to others simply wishing to be left alone, my attempt to document that behavior for public examination is indeed freedom of the press.
At one point I did comment on what appeared to be an an attempt to move along to Hispanic guys that were sitting nearby legally and inoffensively.
OTHER JUDICIAL ERRORS
I originally showed up at the Metro in response to complaints about "religious sermons" being broadcast over the loudspeakers. Symons mistakenly referred to "religious music", but the radio material being broadcast had no musical element at all--it was simply a straight religious sermon, which seemed to have a homophobic edge. An earlier guard had been hostile to two men who drew this illegality to their attention
The claim that the guard's behavior was "content-neutral" was both beside the point and false. It was beside the point because it was my investigative journalism and my right to speak to two people there without being harassed that was at issue, not any speech I was making. I was generally trying to have a low-key interview with two people.
It was false because it was my disrespect for the guard's behavior towards others there, the critical nature of my inquiry, my demand that he be publicly accountable, and my refusal to turn off a tape recorder that motivated his attempt to exclude me. This was certainly NOT content-neutral. The content was very much at issue.
INVISIBLE OR IMAGINARY RULES OF THE METRO
Symons claim that I was violating a Metro rule or policy regarding tape recording and/or blocking signs (it wasn't quite clear which). This was not supported by objective evidence. In fact, if you considered the rules we did present, her finding was contradicted by the evidence. We presented the Metro's set of procedures for its guards and its rules for the general public--as far as they were willing to release them through Public Records Act requests. No where in those rules or in the law is anything I did specified as illegal or a rules violation.
Symons' evidence came from a witness---the hostile Metro manager--that only appeared as a voice on a tape, without any documentation. She was not present to be cross-examined. She did not specify any specific policy regarding recording. She simply expressed her own desire not to be recorded and when I refused, retaliated by supporting my exclusion from the Metro Center. Symons should not have used her recorded voice as evidence of the policy--without requiring her to be present.
I testified under oath that there was no stated Metro policy. Symons disregarded my testimony, didn't demand or receive any documentation from the officer that there was any particular policy about recording, and finally hung her decision on hearsay testimony from a manager offended by my recording her against her wishes.
In fact, my repeated attempts to clarify just what were the limits of the Metro policy by Public Records Act request, phone call, and personal interview with Metro Board member Mike Rotkin resulted in previous little information. Certainly no set of rules was produced that either defined the powers of the guards or the rights of the public or even the rules of the Metro.
It apparently serves the authorities who run the Metro to keep such things vague to give officers the broadest possible "tools" to deal with "problems" as they arise. The difficulty is the next "problem" may be you. In accommodating this kind of police state process (leaving decisions and even on-the-spot lawmaking in the hands of the police and managers), Symons is betraying basic constitutionally protected rights for the public.
PUBLIC PROTEST AND EXPOSURE: A PRACTICAL REMEDY FOR SECURITY GUARD ABUSES AND MANAGEMENT COVERUP
Two weeks later, a group of about ten of us showed up at the Metro. Our objective was to clarify just what the rules were, what the powers of the guards were and what the public's rights were. We showed up with signs, leaflets, videocameras, and witnesses (see http://www.indybay.org/newsitems/2008/11/25/18552885.php?show_comments=1#18553048 ). We were ignored.
We weren't "waiting for a bus". We didn't justify our right to be there. We interviewed members of the general public. We didn't ask the Metro's permission. The guards (including the security guard who cited me two weeks before--Danny Delgadillo) looked on benignly. Our behavior was an amplified version of what I'd been doing and been cited for. But this time, because there were witnesses and cameras (and because the Metro had been warned we were coming), they held their fire.
I testified on the stand that we didn't ask permission, I testified that the same security guard observed us doing exactly what I'd done (assembling in front of the Metro near the large sign). He did nothing when a group of people stood in the same place I stood ("blocking" the sign far more than I had, though even with a group the sign is large enough that it's still visible).
RED HERRING AND STRAW MAN ISSUES
The whole issue of whether I was waiting for the bus (which I wasn't) or whether the guard generously would have allowed me to stay if I said I was a red herring. Symons put the onus on me to justify being there. In fact, this is police state mentality. People have the right to be at the bus terminal for all kinds of reasons. They shouldn't be required to justify them.
Symons, unable to find any rules or laws actually being broken that would justify denying me access to a public facility, fell back on a narrative that suggested she could find "nothing wrong" with the guard's behavior--and not finding any constitutional violations, felt I should obey police orders even when based on non-existent policies.
The straw man she set up was whether I'd actually heard the guard's ordered to move away from the 6' sign, whether I heard it and refused, and whether I was honest about that. The issue though is whether the demand is a reasonable basis for exclusion from the property and arrest if ignored.
In fact, I didn't hear it. The first mention of the "moving away from the sign" is on page 14 of the transcript where Security Guard Delgadillo says he's previously asked me to move--which is not on the tape (which had been running continuously). At that point I ask him for his name and he refuses, preferring to call the police since he "doesn't want to be recorded". After the police have arrived, he clarifies that he wanted me to move away from the large sign. Symons apparently finds that the security guard had a real desire to move me away from the large sign. Possibly so. But she doesn 't consider whether he has the right to make such a demand on threat of arrest.
It's the security guards and police that should have to have clear reasons they have to specify to make us leave. The rules should be posted. The guards powers should be clear and circumscribed. One would expect judges to understand this. My insistence on this principle is why I stayed and was cited for 'trespass".
The code under which I was convicted also provides exceptions for "common carriers" (i.e. places like bus stations) and mentions the Unruh Civil Rights Act (which forbids discrimination of a class of people). Symons never addressed these issues. In all honesty neither did my attorney. But their presence in the law requires the judge to determine that they don't apply in order to convict me.
Symons herself raised numerous arguments at trial arguing against the right to tape record, the acceptability of charging me with a broader less-applicable law when the specific Transit law was available. This would have been appropriate coming form a D.A. or city attorney, but neither were present.
Symons' responsibility was to be neutral and not advocate for the other side. She continued that advocacy out of court while taking the case under submission, demanding a lengthy transcript, demanding a second more detailed version, and finally demanding a rebriefing--all costing the defense time and money.
It almost seemed her intent was to root out some details on which to hang the guilty verdict and to punish the defense for bringing the case into her court to begin with (we had disqualified the Traffic Commissioner Kim Baskett).
THE AUDIO RECORDING ISSUE
Symons contacted my attorney a week before her verdict hearing to seek out further briefing on the right to tape record a police officer or security guard in a public place. My impression was she was fishing for some hook on which to hang a guilty verdict. She couldn't find one in the law regarding audio recording. There was no written Metro policy against it. There was no witness in court testifying to it. As mentioned before, she pulled from the transcript, the angry response of a manager who didn't want to be taped, making up a de facto policy on the spot. If "no recording" were the policy (which would almost certainly be unconstitutional), why was it ignored several weeks later when we gathered without "permission" and audio recorded while leafleting? Why was it not either written down in the Metro's policy manual or posted on its walls? Symons pulled from the 50+ page transcript a pretext to find me guilty.
AUDIO TAPE AND TRANSCRIPT AVAILABLE
My specific claims are documented by the audio tape (available for download at http://www.radiolibre.org/brb/brb081106.mp3 and http://www.radiolibre.org/brb/brb081109.mp3 --fast forward to the relevant sections) and transcript (http://www.indybay.org/newsitems/2009/05/18/18595792.php?show_comments=1#18600099).
The sad thing here is that Symons is supposed to be protecting the public from abuses like this, rather than defending cops and managers who misuse their authority. Symons job is to protect the rights of the defendant and judge him innocent unless guilty "beyond a reasonable doubt". In my case, there's clear and convincing evidence of my innocence and rather strong evidence of malfeasance by metro employees and police.
The real point here may have been Symons' conscious or unconscious desire to help the City and Metro avoid a lawsuit for false arrest. A newcomer from the prosecutor's office, she seemed to ignore the burden of proof required (beyond a reasonable doubt) and the need to have witnesses present if their testimony is to be taken seriously. She dismissed the written evidence of the Metro's lack of clear policies and divergent Metro policing activity when confronted with the same behavior several weeks later.
As prosecutor in judge's robes, she inappropriately acted as city attorney in presenting legal arguments both in and out of court in favor of conviction.
AFTERMATH AND SIGNIFICANCE
Due mainly the well-attended protest Return to the Metro in mid-November, and--Symons' decision notwithstanding--the clear evidence of false arrest in this case, I haven't been further hassled at the Metro. I've tape recorded people there since and stood about, no doubt "blocking signs" at different points (though not intentionally obstructing anyone's view--something never shown or asked about by the prosecution-partial judge).
Loud classical music, used to drive away youth gatherings, has replaced the religious sermons--a relatively positive development--though all these behavioral control devices suck.
Whether Symons' decision will embolden security guards and police to step up harassment is a good question. Please post any new information here and contact me at 423-4833 to report your experience.
In future if this happens again, it would have been good to subpoena high profile public figures like Mike Rotkin, who had the opportunity to quash this whole business and clarify rules of conduct, but chose not to do so.
ISSUES ON APPEAL
Attorney David Beauvais suggested there are various possible issues to appeal:
Symons inappropriate rulings allowing police to cite under the wrong law
The lack of evidence that Metro rules were violated other than ad hoc rules created by the security guards and manager
The judge's ignoring of investigator/whistle blower rights under the First Amendment
The lack of any real disturbance or disruption.
ADVICE TO FUTURE METRO SECURITY GUARD VICTIMS:
This case notwithstanding, a tape recorder is helpful. You DO have a right to record. Ask the guard specifically what Metro policy or rule you are violating if you are asked to leave. Ask to speak to the security guard's superior. Advise the supervisor that if s/he's going to exclude you, you'd like it in writing with the exclusion suspended until a due process hearing per MC 9.62.010.
Write down what you remember of what was said by the Guard. Get the names and numbers of witnesses. Call Free Radio or HUFF to let us know that the security guards are at it again.
I suspect the authorities have learned a lesson from this case---even though Symons did some judicial contortions to come up with a guilty verdict. But we'll see.
EARLIER STORIES ON THE METRO ISSUE:
"Metro Trial Verdict Hearing" at http://www.indybay.org/newsitems/2009/06/08/18600978.php
"Friday's Trespass at the Metro Trial--Notes from the Defendant" at http://www.indybay.org/newsitems/2009/05/18/18595792.php
"City Takes Broadcaster to Court for Chatting at the Metro" at http://www.indybay.org/newsitems/2009/05/14/18594788.php
"Metro Trespass Trial: Santa Cruz v. Robert Norse" at http://www.indybay.org/newsitems/2009/05/14/18594708.php
"Rotkin Claimed: No Flyering Allowed at the Metro Center" at http://www.indybay.org/newsitems/2008/11/25/18552885.php
"Ticketing for Standing and Talking at the Metro Bus Stop Sunday" at http://www.indybay.org/newsitems/2008/11/04/18548934.php
Thursday, June 11, 2009
Donald Schmidt at age 37 NYT photo 2008
After two hung juries, and 12 extra years beyond his sentence,
juvenile murderer set to be freed June 20, 2009
by Becky Johnson
June 13, 2009
Santa Cruz, Ca. -- "You scumsucking windbag" "Sick, sick ...disgustingly ...SICK!" one of my anonymous detractors posted about me in an online forum recently when I wrote that I thought Donald Schmidt, an inmate with the State of California for the past 21 years, should be released.
Why is it when I try to talk about what ACTUALLY happened, people throw fits as if the actual facts of the case weren't relevant? Are they so bereft of any logical argument that they promote censorship of any commentary on the subject other than calling for Schmidt to be dragged out and shot? Why can't I see it differently? After all, I'm just one woman talking.
Donald Schmidt has already served 12 years beyond his sentence and has committed no new crime since he was incarcerated. And furthermore, his psychiatrists say he has been successfully rehabilitated.
As a resident of Santa Cruz County for 30 years, I remember the newspaper reports of the horrible crime in December of 1988. It was very sad when Mariah Silvola was killed. Just like everyone else, I was horrified by the crime and felt HUGE sympathy for her and her sisters. From the reports, it sounded like they were living in a hellhole.
Leslie Silvola, a single mother, lived with her 3 daughters in a cabin in California's "Dogpatch" a.k.a Lompico. Leslie and her 17-yr-old daughter were both addicted to meth-amphetamines. Leslie sold them out of her home. Although SENTINEL reports said that neighbor, Gail Levey, had made reports about neglect at that address, the County's Child Protective Services didn't get involved until Mariah was near death.
Donald Schmidt was a teenage runaway who had been physically sodomized by five different adults before the age of 16. As a result, he was filled with rage, had no skill sets, no guidance from a caring adult, and was a ticking time bomb. He met Silvola's 17-yr-old daughter who brought him to her mother's house where she lived with her two younger sisters. Most likely the mother, an adult, provided meth to Donald, a minor. Meth, for those who are unfamiliar with the drug has a "high" which makes you feel real good. It also causes hyper-sexuality. It's Viagra on speed.
A SHOCKING CRIME AGAINST A CHILD
According to the 1988 SENTINEL reports, Donald found 3 yr-old Mariah in the bathtub and locked the door. There he sodomized her. To prevent anyone from hearing her scream, he submerged her head in the bathtub. She died 2 days later. Leslie Silvola was arrested as well, and wound up serving 1 year in jail. CPS took custody of the remaining Silvola children.
Donald Schmidt was arrested, tried as a minor, and convicted of murder and rape in Judge Black's Juvenile Court. However, the rape conviction was overturned on appeal due to a mistake made by the prosecution. Schmidt was found guilt on a single charge of murder and incarcerated until age 25. Not everyone was happy that Schmidt was tried as minor. One of the most outspoken critics of that decision has been Ariadne Symons of the DA's office.
Symons, who is now a Superior Court Judge, invoked a little-used provision of state law that allows those who have served their sentence to remain incarcerated if they pose a danger to the public beyond a reasonable doubt.
As Head of Trial Operations since 1997 for the Santa Cruz County District Attorney's Office, Ms. Symons stated "It is our belief that it is imperative to community safety that Donald Schmidt remain incarcerated. Schmidt continues to attempt to prey upon vulnerable women with young children and has never accepted full responsibility for his shocking crimes".
Well, that's an exaggeration. Schmidt HAS admitted both guilt and shown remorse.
But that was not enough for Symons. She wanted him to admit he was a pedophile as well. On National Public Radio in 2005 she said "One could argue that he should, in fact, have received life in prison." "He refuses to admit the sexual interest he has with children. If you can't admit it, you can't control it. And he won't admit it." It's also telling that Symons is using Schmidt's interest in adult women (she calls it "preying")to prove he is still dangerous at the same time, claiming he is a pedophile but "just won't admit it." Pedophiles are not interested in adult women.
Schmidt, who is very charming and personable, had a girlfriend his own age for a year while in juvenile facilities in Santa Cruz County. Now in San Bernardino, he has been writing and talking on the phone with women his own age, in the hopes of forming a relationship. Most of these women already have a child or two, so Symon plays the "pedophile" card rather than admitting her evidence shows he is NOT a pedophile.
Critics say she has been grandstanding on this case in order to move her own career forward. She has ignored several inconvenient facts to do this. First, she claims that Donald Schmidt and only Donald Schmidt was to blame. Sanitized from the record is the serious abuse Schmidt suffered as a minor which explains his enraged mental state. Abuse for which he has had years of therapy in order to recover. She erases any guilt of the mother who was neglectful, an addict herself, was selling methamphetamine out of the little girl's home, and left Donald alone with her daughter. If Leslie Silvola did provide meth to Donald Schmidt that night, she certainly shares culpability. Finally Symons ignores that CPS had been alerted to problems in the home but had failed to act. Had they investigated when those complaints were filed, Mariah would probably be alive today.
7 STATE PSYCHIATRISTS TESTIFY SCHMIDT HAS BEEN REHABILITATED
Schmidt has had years of therapy to deal with his anger and to develop himself from an emotionally reactive teenager into a logically directed adult. He is no longer on meth. In fact, a panel of 7 psychiatrists at the facility in which he is held, have testified that Schmidt is rehabilitated and can be safely released. According to Chuck Blanford, his volunteer mentor for the past 10 years, Donald hasn't had a write-up since 1994.
Holding him in jail, in the absence of any new crime, is a form of double jeopardy where he is punished again and again for the same crime. For instance,in each trial Symons would make sure jurors heard every excruciating detail of the original crime. This had the effect of putting jurors in an impossible predicament: Keep this man in jail for another two years or face the possibly he might rape and murder a child again. But last I heard, we don't put people in jail for crimes they might do.
DA Wade, who has taken over for Symons now that she is on the bench, referred to a sexual drawing Schmidt made while incarcerated, and upped the ante to call him "a sexual sadist." Wade claims Schmidt has admitted to "violent sexual fantasies" and that "he doesn't know the difference between fantasy and reality." But being a sexual sadist is not a crime unless an unwilling victim is pressing charges. No one is. The DA also claims Schmidt has violated CYA rules with "drug and alcohol" use.
One juror reports that Donald Schmidt bought a prescription drug given to another inmate for hyperactivity on one occasion a few years ago. The DA called it "legal meth." He also accused Schmidt of "forced sex acts" but no additional charges for assault or attempted forcible rape have been filed.
While the DA's expert psychiatric witness testified that Schmidt remains a danger to society, his State certified panel of 7 psychiatrists say he isn't. Under American law, no juror could find against Schmidt under these circumstances because the standard is beyond a reasonable doubt. When expert witnesses disagree, that raises reasonable doubt.
2 HUNG JURIES
Twice this year, DA Bob Lee has taken Schmidt to trial with 2 separate juries. Twice he's come back with a hung jury. Schmidt's defense attorney, William Weigel doesn't think they will ever get a jury to be unanimous on this case. So, it's entirely possible that on June 20th, Schmidt will be released in Riverside County, California. He will not be placed in Santa Cruz County and has stated he will never ever come back to Santa Cruz County.
Chuck Blanford, a long-time volunteer at the CYA facility where he is housed in San Bernardino, California said that Donald's own hellish nightmare ended the day he was arrested. For he was finally protected from those who were regularly abusing him, and he was able to sober up from the meth. The years of counseling and therapy he received helped him change from a rage-filled meth addict, to a decent human being. He also was able to receive the years of education he had been denied in his chaotic early life. I believe in atonement. I think it's rare, but I am always encouraged when it happens. Yes, Donald Schmidt should be released. But only in Santa Cruz can he be tried again and again for the same crime.
Monday, June 8, 2009
Robert Norse & Becky Johnson at the Homeless Marathon, Fresno, Ca. 2007
By Robert Norse
June 8, 2008
Title: Metro Trial Verdict Hearing
START DATE: Tuesday June 09
TIME: 9:00 AM - 9:15 AM
701 Ocean St. in the Courthouse in Dept. 1, Judge Ariadne Symons' court--the first courthouse on your left as you go through the metal detector
Robert Norse Email Address rnorse3@hotmail. com
Phone Number 831-423-4833
Address 309 Cedar PMB #14B Santa Cruz 95060
original article found at:
Santa Cruz, Ca. -- In mid-May, Superior Court Judge Ariadne Symons heard my court trial for the crime of "refusing to leave a business when asked".
The details of my adventures at the Metro Transit Center and the trial are chronicled at http://www.indybay.org/newsitems/2009/05/18/18595792.php ("Friday's Trespass at the Metro Trial--Notes from the Defendant").
Check out the above web address for a transcript of the audio tape of the incident.
CITY COUNCIL DELAYS CLAIM CONSIDERATION
On May 28th, Santa Cruz City Council took the unusual step of continuing its hearing on my claim against the City for false arrest. Usually such claims are routinely denied. It does not appear to be on the City Council agenda for tomorrow. Hence, there may be unusual pressure on Symons to find me guilty, since the threat of a lawsuit is real and present.
ARIADNE SYMONS--PROSECUTOR OR JUDGE?
Symons, as I've written before, seems to have taken on a dual role--that of judge and of prosecuting attorney. Since there was no prosecuting attorney, she should simply have heard the police and security guard's testimony, my testimony, and my attorney's arguments. Instead, she engaged in fairly extended legal debate with him, as though she were the prosecuting attorney.
Normally she would have heard the tape we made of the affair in court. Instead she asked to be able to hear it later privately. We agreed (and, as it turned out, probably shouldn't have).
Some days later she demanded a complete transcript of the tape which cost over $300. On receiving that, she sent it back to us, insisting that the names of the speakers be filled in, requiring another $120+ worth of work.
Requiring transcripts of audio recordings sets a bad precedent for poor defendants who can't afford to have such documents written up. It discourages folks from introducing audio (and video) as evidence, when that may be the best evidence of official wrongdoing.
Finally she demanded from my attorney by e-mail final briefing on an issue fundamentally irrelevant to the arrest--whether it is legal to tape record a security guard who is questioning you in a public place. I include his response below.
The audio recording issue was not raised by the guard as his reason for demanding I leave the property and arresting me for not doing so. His only stated reason to the police was the (preposterous) claim that I was blocking a 6' long "Metro Center" sign.
Normally if an issue were raised and briefed (as Symons is demanding Beauvais do), one side would have access to the response from the other side--the prosecutor's response.
But since Symons is acting as both prosecutor and judge, she has no need to outline what argument she--the prosecutor--is making to herself--the judge, in response to Beauvais's brief below.
ISSUES AT STAKE
Several issues are at stake:
1. The right of the homeless and the community generally to be able to be at the Metro without abusive challenge from security guards.
2. The right to be free from government-funded religious sermons at a publicly-funded facility.
3. The right to record one's transactions in public places with security guards and police officers armed with similar equipment.
4. The right of the media to investigate charges of abuse without threats--and the actuality--of arrest.
5. The right of the community to be informed about these issues.
Come and watch the outcome in Courtroom 1.
ATTORNEY'S FINAL BRIEFING TO THE JUDGE BY E-MAIL:
Attorney David Beauvais provided the following briefing:
Dear Judge Symons,
You requested briefing on the issue whether the defendant had the right to record over the objection of the security guard at the time of the incident charged in this case.
The answer depends on whether the the recording was a confidential communication under Penal Code section 632. It was not.
“Application of the statutory definition of ‘confidential communication’ turns on the reasonable expectations of the parties judged by an objective standard and not by the subjective assumptions of the parties.” ( O'Laskey v. Sortino (1990) 224 Cal.App.3d 241, 248, 273 Cal.Rptr. 674.)
“The test of confidentiality is objective.” ( Coulter v. Bank of America (1994) 28 Cal.App.4th 923, 929, 33 Cal.Rptr.2d 766.)
Here, the security guard had no reasonable expectation of privacy where the communication between him and Mr. Norse consisted of nothing more than a dialogue concerning the security guard's effort to force him to leave the premises.
It is hard to imagine how this communication would be considered confidential under the objective test.
Also the communication occurred in a public place and the security guard made no attempt to shift the location of the interaction to afford himself privacy from being overheard by others who were present at the time of the communication.
In addition, the security guard called the police to report the substance of the recorded communication to the police. This further evidences his intent not to keep the communication private between himself and Mr. Norse.
Finally, this was not a surreptitious recording. In fact, the security guard objected to being recorded. Merely objecting to being recorded did not turn an otherwise non confidential communication into one that was.
This passage from Taus v. Loftus (2007) 40 Cal.4th 683, 747 makes clear that the communication between the security guard and Norse did not occur under circumstances which make an expectation of privacy reasonable:
In Shulman, for example, the court could not have concluded that bringing the hidden recorder into an ambulance breached a reasonable expectation***827 of privacy without first concluding that the interior of an ambulance and conversations between a paramedic and an injured person in need of the paramedic's services was reasonably entitled to some degree of privacy or seclusion.
In Sanders, we concluded that hidden cameras brought into the workplace may constitute a breach of privacy ( Sanders, supra, 20 Cal.4th at p. 923, 85 Cal.Rptr.2d 909, 978 P.2d 67), but that the first prong of the intrusion tort is not met “when the plaintiff has merely been observed, or even photographed or recorded, in a public place.” ( Id. at p. 914, 85 Cal.Rptr.2d 909, 978 P.2d 67.)
Finally, Mr. Norse made clear on the tape that he was a broadcaster who was investigating arbitrary ejectments from public property. Mr. Norse had a right under the First Amendment and California law to record for the purpose of broadcasting on an issue of public concern where the recording took place on public property.
A copy of this email has been forwarded to the Santa Cruz City Attorney.
David Beauvais, Esq.
Robert Norse is a member of HUFF
Homeless United for Friendship and Freedom - Santa Cruz
Monday, June 1, 2009
Photos of Miguel DeLeon's children, Bobbie,Bailey,Adamis, and Taylor who have just re-connected with their father after 17 years
by Becky Johnson
June 1, 2009
Santa Cruz, Ca. --- Judge Paul Burdick has ruled that a homeless couple, Anna Richardson and Miguel DeLeon, who have already been ticketed 60 times, mostly for camping or sleeping, deserve to be enjoined from sleeping at night in the downtown area. He dismissed the affirmative declarations of Paul Lee Ph.D. and Paul Brindel, director of the Shelter Project which documented that Santa Cruz has shelter space for 8% of its homeless population over the course of a year as irrelevant. When asked where the homeless couple should sleep, Burdick said "well in other parts of the City." When Jonathan Gettlemen, Richardson's attorney said "But it's illegal to sleep there as well." "I'm only going to enjoin them from sleeping downtown." He dismissed the frivolous charges which City Attorney Susan Barisone wanted to keep in such as when Anna washed her hands in the town fountain or when she and Miguel tried to take turns going into the public restrooms on Locust St. only to be told they couldn't "trespass" while they watched their mutual possessions.
But something positive has come out of this whole experience. Taylor DeLeon-Foote, an 18 yr old junior at Cal State University in Berkeley was conducing a google search looking for her biological father, who she knew little about. As a child, Taylor and her three siblings were separated from their father in a court decision which granted custody to the grandparents. DeLeon and Taylor's mother were both very young when they had us. "My mom was only 15 and Lito, my father, was 17." Lito's parental rights were severed. He left the area shortly after that and what became of him was always a mystery to Taylor. "My mom just didn't want to talk about it, " she said. But Taylor, who graduated from high school at age 16, and has just been accepted by the University of California in Berkeley as an incoming junior this coming fall, always wondered about her father.
Last February, some of the press reports about the case appeared in her google search. She read articles written by Robert Norse, and was able to hear her father's voice for the first time in her life when Anna Richardson and Lito (Miguel's nickname) appeared on Robert Norse's radio show, Bathrobespierre's Broadsides. Robert faciliated contact with Lito's attorney. On Saturday, May 30, 2009, Gettlemen, his wife and dog found Anna and Lito camping along the river levee. He dialed a number and handed the phone to Lito. "Someone wants to talk to you," he said. It was Taylor!
They spoke for several minutes and Taylor says that she was thrilled to finally find and make contact with her father. She says that she and her siblings are all doing well. Her brother is graduating from high school this June. Everyone is healthy.
"I'd always been told that my father abandoned us and that he wanted nothing to do with us. It was never true. He gave up his parental rights because he thought it was the best situation he could leave my brother and sisters in. The last thing he said during the phone call was "I love you." That meant the world to me," she said, choked with emotion.
Many many people in life run into trouble. Health problems. The loss of a job. A messy divorce. Some become homeless and some do not. What we, at HUFF have found as the common thread throughout people's stories is that the people who maintain their family relationships are able to weather the hard times without falling into homelessness. Those who, for whatever reason, have lost that family support network, are the ones who become homeless. Whether they are prone to using drugs or alcohol. Whether they have mental problems. Whether they are a veteran suffering from PTSD. The common element is that people with family support are the ones who end up homeless. Lito is a good example of how this can happen.
It's a terrible loss to lose your children. It happens to homeless people all the time. Child Protective Services workers become scary people to homeless families with small children. The depression that follows for the parent is unbearable. Most never fully recover. I don't know that this is the case with Miguel DeLeon and his children, but I see all the signs. Perhaps now, something can be salvaged from what had, up until now, been an irreparably broken family.
"I've also reconnected with my Dad's family who I grew up not knowing," Taylor bubbles. "They are wonderful and so supportive of me. I'm getting married in August and they are paying for my wedding." A silver lining indeed.