Quotations on Jury Nullification

by Becky Johnson
May 21 2011

Santa Cruz, Ca. -- I have a gripe with the Santa Cruz County Superior Court. It has to do with the jury instructions given to jurors at criminal trials. The most recent example of this was at the Peace Camp Six trial before Judge John Gallagher. Gallagher told the jurors that they "must follow the law, even if you disagree with the law." Huh???? WHY do our judges do this? Why do they pre-empt the authority of the jurors to judge both the facts AND the law?

I assume they do it to get convictions. If jurors were allowed to judge the law itself....well anarchy would reign! Laws against sleeping, use of marijuana, or, as happened prior to the Civil War, slavery laws might not be enforceable if twelve citizens cannot agree in the justice of the law.

But don't take my word for it. What follows are quotes from some of our most famous jurists throughout US history. Let's see if their words bear any relevance on how juries are instructed in the Santa Cruz County court system.

"If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant’s natural God-given unalienable or Constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law.

"That juror must vote Not Guilty regardless of the pressures or abuses that may be heaped on him by any or all members of the jury with whom he may in good conscience disagree. He is voting on the justice of the law according to his own conscience and convictions and not someone else’s. The law itself is on trial quite as much as the case which is to be decided."
U.S. Chief Justice Harlan F. Stone, 1941-1946.

"It is not only his Right but his Duty to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court." -- U.S. President John Adams, a lawyer, speaking about the Juror

"The Jury has the right to judge both the law as well as the fact in controversy."--U.S. Chief Justice John Jay

According to US Legal, Inc, "The right of jury nullification originated in what is referred to as Bushell’s Case, an English court decision from 1670. William Penn, the eventual founder of Pennsylvania, was accused of holding an illegal meeting. The jury, based on inconclusive evidence, acquitted Penn and his co-defendant Bushell. The judge retaliated against the jury by fining and imprisoning them. After several weeks, Bushell asked for an appeal of the trial judge’s action against the jurors. The judge for a higher court set the jury free and said that because reasonable people can look at the same evidence and come to a different conclusion, juries are free to decide as they see fit regardless of whether the judge believes they had an legally adequate reason."

Although this was a case in English law, the principal established applies to US law as well.

Julian Heiklend offers this description of Jury Nullification, or the ability of the jury to try both the facts and the law in this way:

"Jury nullification was introduced into America in 1735 in the trial of John Peter Zenger, Printer of The New York Weekly Journal. Zenger repeatedly attacked Governor William Cosby of New York in his journal. This was a violation of the seditious libel law, which prohibited criticism of the King or his appointed officers. The attacks became sufficient to bring Zenger to trial. He clearly was guilty of breaking the law, which held that true statements could be libelous. However Zenger's lawyer, Andrew Hamilton, addressed himself to the jury, arguing that the court's law was outmoded. Hamilton contended that falsehood was the principal thing that makes a libel. It took the jury only a few minutes to nullify the law and declare Zenger not guilty. Ever since, the truth has been a defense in libel cases."

"When a difference in sentiment takes place between the judges and jury, with regard to a point of law,...The jury must do their duty, and their whole duty; They must decide the law as well as the fact." -- Pennsylvania Supreme Court Justice James Wilson 1790

It should be noted that in 1879, the Pennsylvania Supreme Court stated that "the power of the jury to be judge of the law in criminal cases is one of the most valuable securities guaranteed by the Bill of Rights."

"The jury has the right to determine both the law and the facts. " -- Samuel Chase, U. S. Supreme Court Justice and signer of the Declaration of Independence 1796

"The jury has the power to bring a verdict in the teeth of both law and fact." --U. S. Supreme Court Justice Oliver Wendell Holmes 1902

"The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge." -- from a 1972 decision (U. S. v Dougherty, 473 F 2nd 1113, 1139)

"There is a practice of judges to incorrectly instruct the jury that the judge determines the law, and that the jury is limited to determining the facts. Such an instruction defeats the purpose of the jury, which is to protect the defendant from the tyranny of the state. Judges or expert witnesses can determine the facts better than juries can. The purpose of the jury is to protect the defendant from the tyranny of the law." ---Julian Heiklend

"The jury's responsibility is to deliver justice, not to uphold the law." --- Victor Hugo from Les Miserables

"In the trial of all criminal cases, the Jury shall be the judge of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."--Article 23 of the Maryland Bill of Rights

Jury Nullification was used towards the end of prohibition when juries refused to convict for possession or use of alcohol. This was a factor in bringing about the end of prohibition.

The primary function of the independent juror is not, as many think, to dispense punishment to fellow citizens accused of breaking various laws, but rather to protect fellow citizens from tyrannical abuses of power by government. The Constitution guarantees you the right to trial by jury. This means that the government must bring its case before a jury of The People if government wants to deprive any person of life, liberty, or property. Jurors can say "no" to government tyranny by refusing to convict." ---from the Fully Informed Jury Association

"The judge is a witness who testifies as to what the law is, and the jury is free to accept or reject his testimony like any other." -- from the Tennessee Supreme Court in Nelson v. State 1852

So jurors have a very important job. They are to be the final check against tyranny by government. They have not only the right but the duty to judge both the facts and the law. In Santa Cruz, juries should examine whether a ban on Sleeping and a ban on using a blanket with which to keep warm are truly crimes punishable under the law. Unfortunately, they must do so against the explicit instructions of Santa Cruz County judges. However, justice demands that they do. To do anything less, is to violate the civil rights of homeless people who must sleep at night and must stay warm by using blankets or bedding.

Transcript of Juror post-verdict interview May 3 2011

The following are outtakes from five separate audio recordings of Defense Attorney, Ed Frey, District Attorney, Sara Dabkowski, Becky Johnson, Linda Lemaster, with Jury Foreman, Mr. Kauffman, and with 8 jurors. A ninth juror opted to not be recorded and can be heard asking that the recording be turned off. The other jurors said he was a doctor, practicing at Dominican Hospital, and that he was the bullying and non-participating juror.

AUDIOTAPE # 1 1min and 42 seconds

BECKY: Do you mind talking to us a moment about the case?
FEMALE JUROR: I can't. I've got classes. (walks by hurriedly. This juror had formerly agreed to be interviewed by Becky, and was a student at UCSC).
(Becky confronts DA Bob Lee as he walks through the hall "Do you want to talk about your verdict? That you've solved homelessness in Santa Cruz County? That you can have every homeless person arrested on sight?" Lee passes through without comment. Becky returns to interviewing jurors)

BECKY: Do you mind talking about the case?
FOREMAN KAUFFMAN: ....we had a juror that didn't feel that any more discussion would be helpful, was a waste of his or her time. And really wasn't willing to allow for further discussion to happen.
SARA DABKOWSKI: Are you aware that a recording device is on? And do you object to a recording being made of this discussion?
FOREMAN KAUFFMAN: No, I don't.
SARAH DABKOWSKI: So it started at 11 - 1 where that one person just didn't want to talk about that count anymore?
FOREMAN KAUFFMAN: I don't want to comment on that.
SARA DABKOWSKI: That's fair.What do you feel like was the sticking point about on that particular count?
FOREMAN KAUFFMAN: I don't think it was neccessarily about that particular count. It was a question of general time. One person felt that was it.
SARA DABKOWSKI: Was there anything that could be made more clear? In terms of all the other counts, where you were able to reach a decision, was there anything that I could have done to make your job more clear?
JUROR (a doctor ): I'll speak to that. But I don't want to be recorded. (end of clip)

AUDIOCLIP#2: 16 min and 5 sec
.....was the dog, was that part of it? (yeah)
JURY FOREMAN KAUFMAN: I would like to partly disagree with that. Speaking for myself anyway, I didn't feel that I necessarily had the time I needed to fully hear everyone to decide whether or not I was absolutely convinced one-way or another regarding Mr. Anderson.
SARA DABKOWSKI: Yeah.

ED FREY: Are any or you or are all of you convinced you don't have any ownership of this property?

(DA Bob Lee walks through and Becky asks him again if he's now going to have all homeless people arrested and convicted. Lee continues walking without comment.)

K: I do have an opinion about that. We live in a representational government and we elect officials, and they don't obviously do what we want to do, but we do elect them. but that is the way our government is run. It's my belief that...
ED FREY: Actually, the corporations elect our public officials with their campaign contributions.
K: Fair enough.
ED FREY: The corporations are in charge.
K: I'm not going to disagree with that. But we do elect those people, and this is, whether you like it or not, how our government is run and how our laws are run and until you change the laws unfortunately....
ED FREY: What do elections have to do with ownership of the property?
K: Well the people of California...I'm not 100% sure of this, but based on your testimony, I'll believe that the people of California own these grounds. If that's true then the representatives that are elected by the people of California are the people who are in control of these grounds. Obviously every single one of us isn't able to have the same day-to-day...uhm...what am I trying to say? We can't do every single job there is to do in the State of California, all of us standing here. We elect someone to be a judge. We've elected someone to do all kinds of different jobs. We elect those people. So we've elected someone to take control of the grounds.
If we don't like the way they are controlling the grounds, we should elect someone else to change the laws. Unfortunately, that person has been elected to do that, whether you disagree with it or not.

BECKY: Were you concerned that 647 (e) had never been enforced before in this county before August 6th?
K: Yeah. Yeah sure. But I don't see how that could affect how I decided in the case.
BECKY: Isn't is possible that this ordinance was just picked to get everybody off the steps and away from City Hall?
K: Absolutely. I think that's possible.
BECKY: And were you also concerned that even after they left the steps and they left the courthouse, that they would still be in violation of 647 (e) unless they stayed awake all night?
K: Yes. I agree. It's possible.
BECKY: Do you think the repercussions now, as a consequence of your verdict be that the sheriff's will now begin enforcing 647 (e) all over the County against any person who appears to be homeless?
K: Perhaps. And if they do, and people in the County feel it's wrong then they should change the law--WE should change the law.
BECKY: Were you aware that at the time the law was enforced, the sheriffs were unaware of this law even as it was being enforced?
K: Excuse me? Sorry, can you repeat that?
BECKY: The testimony of all the police officers was that they had really no information about enforcement of this law before August 6th. That they'd never used it before, they didn't have any particular experience with it. They just started using it August 6th for this protest
K: My understanding was that when they enforced the law they were aware of the law. Maybe not very far beforehand. But when they enforced it, they were aware of it.
BECKY: And were you concerned that the definition of "lodging" was something that just popped out of the judge's mouth and was not contained in the law?
K: Well, I'm glad that the definition of "lodging" did pop out of the judge's mouth because otherwise we would have had no way of knowing what "lodging" was one way or another, other than, I suppose, our own general sense.
BECKY: So how were defendants who....
ED FREY: So how is a person who is actually engaged in this activity, how is that person supposed to know what lodging is? If you don't know what it is, (ED points at jurors) and you don't know what it means, and he doesn't know what it means, and she doesn't know what it means, then how is the defendant supposed to know what it is?
(interruption by DA DABKOWSKI)

K: right. And we were specifically told that ignorance of the law does not in any way change whether or not you violate it. ...Sorry. We were told that.
FEMALE JUROR: We have to follow the law. We were told that. It's not as if we had a choice.

ED FREY: So the emergency or the word "emergency" was troublesome?
K: Yeah there were some of us who in general believe homelessness itself constitutes an emergency. It was hard for us to come to a conclusion on this. We had trouble coming to a general conclusion on this. For some people an emergency is when you have to call an ambulance, someone is dying right now. Right now. Now vs. a longterm issue like homelessness, sure, it was a tough point for us.

ED FREY: How long should a homeless person have to stay awake, since there is not one square inch in the State of California, where a person can go to sleep legally if he doesn't have a property right somewhere, How long does a person have to stay awake before you're going to excuse him from this cruel law"
DA DABKOWSKI INTERRUPTS AGAIN: "You know I don't think the juror should have to answer..."
K: No. I want to.
DA DABKOWSKI: Well if they want to they can.
JURY FOREMAN KAUFMAN: I think you should be able to sleep anywhere. I do. I don't have a problem with it. I personally think I should be able to go outside right now and sleep if I wanted to, and so should you and you and you. And I should be able to do it at 4AM in the morning if I want to. As long as I'm not causing any trouble, that's my personal opinion.
5:52
And so I think to enforce a law which was maybe... slanted a little bit one way or another in order to do this one thing. get what they wanted they chose to enforce a law because they wanted to get the people out of there. Was that right? You know (makes a hand gesture indicating indecision)--ehhhn--I don't know. But was it a law that was enforceable by those methods? Yes, it was there on the books. Yes. It was there. It was used.
ED FREY: Isn't that like a good German soldier? Just following orders?
K: Well the difference is, no one has died. And to equate this to the holocaust is, a little...I think the insinuation is a little too strong I think (laughs) . To compare this to Nazi Germany is....
BECKY: Would you have been persuaded if you knew the homeless death toll, last year 32 deaths in the City of Santa Cruz alone?
K: That's awful. That's awful.
BECKY: And couldn't the Sleeping Ban have...?
ED FREY: And the reason for it is people are willing to kick the homeless in the teeth when they are down.
K: That's awful. That's horrible.
ED FREY: They continue to prosecute them, to send them to jail, just because they are homeless.
K: We should change the laws.
ED FREY: I tried. I tried with this judge. With a full motion with this judge based on the Constitution and he rejected it. Back in January. Even though the Constitution gives the right to freedom, to the pursuit of happiness under the US Constitution, and the right to freedom and the pursuit of happiness, under the California State Constitution, the right to pursue safety. The right to pursue privacy. He still rejected it. And even under the 9th amendment to the US Constitution that says that all rights are retained by the people. He rejected all of these arguments.
K: You have my full support in trying to change laws which are unjust.
(GAP)
7:47 into clip
DA DABKOWSKI-- (re: jury instructions) "with the lodging we thought it helpful to give a definition."
8:24 FOREMAN KAUFMAN: "If we had not been given that instruction....you're right, "to lodge" is very vague"

FEMALE JUROR: For me a factor that weighed very large is that they had been warned that they were, indeed, lodging. If they had not been warned, then that would again be different.


ED FREY: Did any of you hear the potential juror mention jury nullification before the trial during the jury picking? Does anyone know what jury nullification is?
(General "no's")
BECKY: So you didn't think that as a juror you had the right to judge the law or perhaps in this application it was politically motivated?
MALE JUROR: It doesn't matter what the motivation was. The defendants were charged with lodging. That being political and protesting...well...it didn't mean much.
ED FREY: What did you think that an emergency existed socially and that we needed to protest that social emergency, that political emergency? Do you have any ideas about that?
FEMALE JUROR: Probably our hardest point. I think that some people who were even staunchly on the other side felt some ambiguity in that issue. Some people. SOME people definitely didn't. It depends on how narrowly you want to define it. ( 8:51 INTO CLIP) Like an emergency being immediately life threatening like a person chasing you with a knife emergency, or a societal emergency --they are so far apart that it that it's almost impossible for a jury to define or to really know exactly what that is.
(MISSING TEXT)
(9:29 into clip)
FEMALE JUROR: There were a lot of other criteria to the necessity defense that others didn't necessarily meet.
ED FREY: So what were the other criteria that we didn't meet?
FEMALE JUROR: Ohhh, here we go! I was afraid you'd ask that. Can anyone else here help me out? (general laughing).
at 10:05
K: Since "lodging" was defined by the judge, that made it pretty clear and we all agreed on the question of who controlled the premises.
DA DABKOWSKI: In terms of the officers, do you think it would have been helpful to provide more information, what each person was doing,

K: personally I found it pretty crappy that it was clear that they were citing people as soon as they fell asleep. That was the one thing they were really going after. I knew they were doing that just so they could have without question, in-the-bag as far as what lodging was but...I think Mr. Frey laid out a pretty good defense that it was unfair and basically what you were doing, was citing people for being asleep.
ED FREY: Thank-you.
(GAP)
FEMALE JUROR: I wasn't one of those people.
(GAP)
contributing to the emergency was one of them
(GAP)
BECKY: Do you think a reasonable person might fall asleep at night?
FEMALE JUROR: Well, that's a silly question. Of course everyone needs to sleep at night.
BECKY: Well the officer's testimony. I believe it was about Gary Johnson. He said that Johnson had just been released 6 days earlier for the crime or the conduct. And there he was, six days later engaging in the same conduct as before, which was sleeping. Didn't it cross your mind that normal people sleep twice within six days.
FEMALE JUROR: Well of course people sleep each night.
BECKY: So where was Gary Johnson supposed to go to sleep legally that night?
FEMALE JUROR: Where had he slept before dozens if not hundreds of other nights?
BECKY: Hiding in bushes...
GALLAGHER'S BAILIFF: (INTERRUPTING) Anyone who wants to can leave. I don't mean to interrupt...
BECKY: You just interrupted.
GALLAGHER'S BAILIFF: ...no one has to stay here.
BECKY: Where could Gary Johnson go that night where he wouldn't be ...
DISSENTING FEMALE JUROR: Excuse me. I just wanted to say, if there were more instructions around being able to make decisions based on a political decision...if we had been given those instructions, that would have impacted our deliberations greatly.
ED FREY: If you were given more instructions on civil disobedience?
(GAP)
13:16
BECKY: Were you influenced at all by the Judge announcing at the beginning of the jury selection that this group of people who were camping on the courthouse steps last summer as (GAP)

FEMALE JUROR: I felt that both sides agreed on that. You and both the prosecution agreed that people were up there...what she's trying to say...that wasn't in dispute
JURY FOREMAN KAUFMAN: That you and the prosecution pretty much agreed you were camping.
FEMALE JUROR: it didn't seem like it was something the prosecution was saying that you were arguing against.

You felt that the defendants arrived pretty much announced that they were camping and guilty of 647 (e)

you were greatly constricted
we were greatly influenced in our verdict based on all of the instructions

it had some influence, definitely.
without any def

on public property

the law specifically stated it included public property and so we didn't have any wiggle room.

whether it was public

Audiotape # 3 at about 8:54

(SKIPPED TEXT)

JURY FOREMAN MR. KAUFMAN: I do have a question and maybe you might know something about. If you have a juror who is somewhat belligerent. Didn't want to continue to deliberate--thought it was a waste of their time--After we got through most of the counts, we had one juror who was completely belligerent, who refused to continue with deliberations, who thought it was a waste of their time, how...is there anything a jury can do?
DA DABKOWSKI: Well I think, potentially, that you could go to the judge with that issue. There is juror misconduct if a person does not attempt at least to deliberate appropriately. There is a process where if they are refusing to deliberate at all, and they are not following the rules, then potentially there could be an investigation. Generally the courts try to stay out of the jury room as much as possible....I've never actually had it come up....but I think that there's a process where you go to the court. I don't know for sure.
FEMALE JUROR: We didn't want it to end in a mistrial or completely nullify all of our efforts so far. But it was completely impossible!" (laughs)
ED FREY: Can I ask, in your opinion was that one person who was hostile to the whole process, did that person just cave in because he or she just wanted to get out of here?
FEMALE JUROR: No. He was on the side most of us were on, He was leaning towards guilty.

He was screaming at her...it was so awful...
DA DABKOWSKI: It's okay to let the bailiff know.
FEMALE JUROR: It was really awful.

DA DABKOWSKI: I'm really sorry to hear that. Well obviously, you don't want to have a bad experience and not want to be a juror in the future so I'm really sorry to hear that.

This one person, I thought that during the selection of the jury...he made a lot of statements
you're talking about a doctor He's a neurologist Santa Cruz Medical Foundation

everyone else was having reasonable dialogue but we were taken away. He snapped.
JURY FOREMAN MR. KAUFMAN: For most of the time, I'd say 75% of the process he was mostly quiet, or made a few statements here or there but there were a few times where he crossed the line. He was not professional. We talked about that. But basically he announced he was not going to be professional, and that it was a waste of his time, "My time has been wasted all day. I'm done wasting my time."

on the 13 countes you were able to read\\

we saved the stuff that was harder for hte end and he wasn't willilng to hear it.
10:40
DA DABKOWSKI I didn't think
he's a doctor? A neurologist.

Generally he'll ask the judge.

Everybody else was having reasonable dialogue. I mean, we were chipping away at it.

was it immediately or later on?

It was immediately. But he snapped after lunch.

End the Sleeping Ban in Santa Cruz

Robert Norse: City can save thousands of dollars by ending sleeping ban

Santa Cruz Sentinel Guest Opinion
Posted: 05/15/2011 01:30:55 AM PDT
Found online here.

by Robert Norse

Still from video by Becky Johnson at the Santa Cruz City Council meeting on March 12, 2002

I've offered to settle a costly lawsuit. I'll drop my financial demands for tens of thousands of dollars in the "two-second mock-Nazi lawsuit" if the city of Santa Cruz will stop wasting money on ticketing homeless people for sleeping where they must at night. But Mayor Ryan Coonerty and his Council say no.

They don't mind spending scarce city money paying police to harass people for sitting down within 14 feet of a vacant building, playing a musical instrument for donation within 10 feet of a penguin sculpture or holding up a sign silently after dark asking for food. Such confrontations can and do prompt arrests and more costs.

In the last year the city spent more money on police, hosts and private "security." For what? To bust the poor for sitting on a public bench for more than an hour? For smoking a cigarette outside the library after it's closed? For holding up an "End the Sleeping Ban" sign at City Hall at 10:30 at night? Cops spent public money to take all these "crimes" to court last year.

It's illegal to be in any park after dark, including the huge Pogonip area, where hundreds of homeless sleepers hide. Sleepers without options are busted in front of churches, even those that have given their permission. "Falling asleep while poor" in liberal Santa Cruz is still a crime. Meanwhile Los Angeles, San Diego, Laguna Beach and other more conservative cities have abolished their sleeping bans.

When critics like myself come to City Hall to object to these abuses, we face hostility, discrimination, and, if we persist, the creation of special "rules" to muzzle our speech. This pattern of City Council repression against activists is the reality behind the illusion of "decorum." Maintaining this illusion and the power it masks is the real reason for all the money spent dragging out this lawsuit.

The latest is the hiring of an out-of-state law firm to prepare an appeal to the Supreme Court because, as city attorney George Kovacevitch absurdly puts it, "we have a shot, arguably, albeit a small one." I'm told that chance is 5 percent.

The lawsuit: In March 2002, as a silent protest almost as a humorous sigh, I made a brief, silent "don't act like a fascist" mock-Nazi salute and was arrested. View it here. Only Councilman Tim Fitzmaurice noticed. Then-mayor Christopher Krohn had me arrested, handcuffed and jailed with no charges ever filed. I sued for false arrest.

Nine years later in December, a rarely convened 11-member panel of the 9th Circuit Court of Appeals ordered the city to face a jury for its actions. Defending this lawsuit has already cost the city hundreds of thousands of dollars.

In response, I've offered to drop my lawsuit for personal damages if the city will agree to changes in the Council rules restoring fair public input, attorney's fees, and repeal of the camping ban as long as the current shelter emergency in the city persists there is shelter for less than 10 percent of the city's homeless.

Let's end such costly stupidities as last year's seven-day infraction trial for singing homeless songs near Mayor Coonerty's Bookshop Santa Cruz, the week-long misdemeanor Peace Camp 5 trial for sleeping, and the city attorney's personal appearance to convict Wes Modes of walking in a New Year's eve parade.

If the Council won't listen, let's make them bite the fiscal bullet by ballot initiative.

Sign the on-line petition at http://www.thepetitionsite.com/761/petition-to-settle-the-lawsuit-with-robert-norse/

For more background see http://beckyjohnsononewomantalking.blogspot.com/search/label/Nazi%20Salute .

Robert Norse is a longtime activist for the homeless and homeless issues.

Peaceable Assembly disturbed by police and DA

NOTE TO READER: As many readers may know, the defendants were found guilty of PC 647 (e), illegal lodging on the Courthouse steps. At the May 10th sentencing hearing, Ed Frey made a motion for a new trial based on juror misconduct at the Peace Camp Six trial. Sentencing has been postponed and a June 1st hearing on that motion is scheduled. --ed

Protesters bed down at night on the courthouse steps in Santa Cruz, Calif. to protest the Sleeping Ban. Photo by Becky Johnson July 10, 2010

County Shouldn’t Punish Civic Activists

Several Peace Camp 2010 demonstrators face criminal charges

By City on a Hill Press

City on a Hill Press

Published May 5, 2011 at 3:19 am

Found online here.

The right to assemble is guaranteed in the First Amendment to the Constitution for a reason: liberty depends upon it.

This week, the Santa Cruz County Superior Court is moving forward with the trial of six people accused of illegally camping outside government buildings in the summer of 2010. Five men and one woman rolled out their sleeping bags over the summer with dozens of others who protested a city ordinance that bans sleeping outside at night in public places.

Peace Camp 2010, as it became known, began July 4 on the county courthouse steps and continued to Santa Cruz City Hall, where it ended in October. Many demonstrators were cited and arrested, but judges dismissed nearly all violations except for those of the six defendants in this week’s case.

Eliot “Bob” Anderson, Arthur Bishoff, Collette Connolly, Christopher Doyon, Gary Johnson and Ed Frey stand accused of breaking a state lodging law by participating in the protest against the anti-camping policy. If sentenced, the group could face jail time, exorbitant fines or community service.

On Tuesday, four defendants were found guilty, Anderson was dismissed because of a hung jury, and Doyon did not show up to court. He is now facing a warrant for arrest. Sentencing is expected on May 10.

The protest was intended to scrutinize the constitutionality of a policy with questionable implications. While thousands of homeless people reside in Santa Cruz County, there are only a couple hundred beds in county shelters to accommodate them.

Demonstrators argued that local governments’ insistence on presenting a wholesome image is infringing on the basic rights to life and liberty, including the very personal decision of where to sleep at night.

Because the camping ordinance criminalizes sleeping outside of a private residence, thousands of people need to “get on their feet” or “get out of town.” Unfortunately, both of these clichés are easier said than done.

Unemployment has made even the most qualified job seekers desperate for minimum wage employment. People without residences are often excluded from jobs, and while there are a few exceptions, most find the transition from street life to mainstream society painful and ultimately unsuccessful.

To top it off, state and local governments across the country actively expel the homeless with strictly enforced anti-camping policies. In more extreme cases, the homeless are bussed to other places.

Ordinances like the one in Santa Cruz exist across the country. The logic for many cities is that if sleeping outside is allowed in one town (especially a beautiful one with a mild climate), then the homeless will come flocking to sleep on the streets.

This may be true. However, the exclusion of residence-less persons from a community is both elitist and immoral. Santa Cruz should be concerned with maximizing liberty, not avoiding a population of people who sleep on the streets.

There is no point in targeting these six demonstrators, especially in light of charges being dropped against all other protesters. It is a way for the city to show that it is tough on crime. Yet, shouldn’t we be congratulating these protesters for recognizing a potentially unconstitutional policy and taking action against it?

Beyond the questionable ethics of the policy itself, there is no reasonable explanation for why these six people specifically are facing court charges.

The right to assemble is a clear and non-negotiable right in this country. It has been essential to important social movements throughout U.S. history: abolition after the Civil War, women’s suffrage after that, progressive reform in the 1930s, and most present in the recent consciousness, the civil rights movement of the 1960s.

For Santa Cruz to claim that the assembly of those six protesters was illegal because they were in sleeping bags is appalling. Peace Camp 2010 was a peaceful demonstration and, as such, it is protected under the First Amendment.

Basic rights are not contingent on a person’s residential status. Each of us has the right and the responsibility to protest unfair and discriminatory laws.

Budget Considerations in the Peace Camp 2010 Trials

by Becky Johnson
May 7 2011

Santa Cruz, Ca. -- With City and County budgets in crisis, social service programs cut to the bone or eliminated entirely, the Peace Camp 2010 misdemeanor prosecutions may seem a waste of time and money. Actually they are an OBSCENE waste of time and money. But to certain parties, these trials are a cash cow.

First, a little bit about how the organizers

District Attorney, Bob Lee
Photo by Schmuel Thayer March 2011

of Peace Camp 2010 last summer considered our impact on the community in general and the County Building in particular. We also considered the possible consequences of citations or arrests of the people we were attempting to shelter.

We researched the County Camping Ban and found our group would not be subject to it. We anticipated ticketing under infraction MC 6.36.010 section a a.k.a. the Sleeping Ban (a subsection of the Camping Ban). And we believed that any homeless person charged would likely be acquitted by using a defense of necessity since no one disputes there are more homeless people than the available shelter. Even a conviction would only result in 8 hours of community service (a small WIN we'd achieved back in 2000).

No one anticipated ticket and arrest under PC 647 (e). Bob Lee pulled that out of complete obscurity to use against us.

We are still researching its legislative history, but early research shows it to be based on a BLACK CODE from the late 1800's to prevent freed slaves from moving into California.

Its language prevents "illegal lodging" anywhere in the State on both public and private property without the permission of the owner. A similar law, Article 13 of Indiana's 1851 Constitution stated "No Negro or Mulatto shall come into, or settle in, the State, after the adoption of this Constitution." This term "settled in" as a crime, is the exact same language Judge John Gallagher used to define "lodging" for the jury that convicted 4 Peace Camp 2010 defendants on May 4th.

Of course we didn't NEED to tell people that they may be cited or arrested. They LIVE it every day. Local attorney, ED FREY offered to defend pro bono anyone arrested with Robert Norse, myself, and others from HUFF providing tactical support. But NONE of us are paid for this unlike DA SARAH DABKOWSKI and her 31 law enforcement witnesses. THEY are all paid HANDSOMELY!

Subpoenaed for the trial, 29 law enforcement individuals--all paid for a half day if testifying on their off-time. And PAID and in uniform, if called to testify during their regular shift.
City and County staff members, Dinah Phillips, Dannette Shoemaker --with annual salaries of $118,296 and $159,111 respectively, plus any expense for photos, videos, or other exhibits was paid for by the DA's office because their expenses are considered too vital to cut.

"Key public safety positions, including prosecutors and sheriff's deputies, will be spared layoffs...." --from the Santa Cruz Sentinel

"There are particular areas where reductions are not as great," she (Susan Mauriello) said, referring particularly to public safety services in the Sheriff's Office and District Attorney's Office."

Needless to say that DA Sarah Dabkowski is paid over $60,000/yr and the Judge is in the hundred-thousand a year club.

None of the defendants, their witnesses, their supporters, or the ONE attorney we had were paid. No wonder the trials continue unabated. The money virtually pours into District Attorney Bob Lee's office as the chance to arrest and try homeless defendants for misdemeanor lodging are unabated "make work" for law enforcement and DA's alike.

So let justice roll, Santa Cruz Style. Ka-ching!

City hires big city attorney to fight Nazi-Salute Case

NOTE TO READER: Robert Norse and his attorney, Kate Wells, have always been willing to settle this case for reasonable changes in the Rules of Decorum at City Council meetings and, as the years have dragged by, and for legal costs to continue fighting it have added up, attorney's fees and costs. Today is no different than any other day. But the City, under the leadership of John Barisone, appears to know no limits on the minutia on which they'll litigate or to the nth degree they will drag it out. It should need no explaining that the legal fees they will run up benefit themselves. Below is today's SENTINEL article by J.M. Brown dated May 6, 2011. ---ed

NOTE TO READER: There is an online poll running with the article, so be sure to log on and vote.
At this time 305 people have "voted" and Norse is slightly ahead of City Council with 50.49% of the vote.
City Council 48.85% and Other 0.66% (2 votes). --Becky Johnson of HUFF

Santa Cruz to appeal Nazi salute case to Supreme Court: Lawyers still seeking settlement with Robert Norse

By J.M. BROWN

Posted: 05/05/2011 11:00:00 PM PDT

found online at: http://www.santacruzsentinel.com/ci_18006114

SANTA CRUZ -- The city of Santa Cruz plans to appeal its loss in the Robert Norse free-speech case to the U.S. Supreme Court next month unless a settlement can be reached with the longtime government critic, officials confirmed Thursday.

The city has hired a high-powered Supreme Court expert to file the appeal if an agreement isn't reached with Norse, who filed suit in federal court nearly a decade ago alleging the city violated his First Amendment rights by ejecting him from a 2002 City Council meeting. The 63-year-old activist was arrested after refusing an order to leave the meeting, which city officials said he disrupted by raising a mock Nazi salute.

A rare panel of the 9th U.S. Circuit Court of Appeals ruled unanimously in December that a trial judge should reconsider the case, indicating they believe city officials silenced Norse because they disliked his criticism. The case, which has garnered national attention, has never gone to trial.

City officials have met with Norse and his lawyers recently to negotiate a settlement, one that could lead to a loosening of restrictions on public commentary during council meetings and a financial payout for Norse. But an agreement has been elusive, and council members directed the city attorney in closed session last week to pursue the Supreme Court appeal.

George Kovacevich, an attorney with the city's firm, supports the appeal even though there's a slim chance the high court, which typically hears less than 5 percent of petitions, agrees to take the case. To accept the lower court's decision could mean a costly trial for a case the city has spent $148,000 to defend -- a cost that will grow if the city loses and has to pay Norse's legal fees.

"At least now we have a shot, arguably, albeit a small one," Kovacevich said. "Certain rulings are reversed, and then that would not bind the city up in a trial."

Kovacevich said the city has hired Richard Ruda, former chief counsel of the State and Local Legal Center in Washington, to prepare a writ of petition to the high court. The deadline to file is June 6.

Ruda, whose office is in the tony Washington suburb of Chevy Chase, Md., declined to comment on the case when reached by phone Thursday. He also declined to discuss his previous appearances before the Supreme Court, though his website says he is "uniquely qualified to assist state and municipal attorneys and officials with questions about Supreme Court doctrine, practice and procedure."

The Supreme Court Institute at Georgetown University's Law School, for which Ruda has served as an advisory board member, reports that the Yale University and Harvard Law School graduate has filed briefs with the high court on behalf of state and local governments and conducted practice runs for lawyers preparing arguments before the nation's top justices.

Kovacevich said he didn't have details Thursday on Ruda's fees. He said Ruda has consulted with the city for about a month.

As part of a potential agreement to withdraw his suit, Norse said he expects the council to change its rules regarding public participation -- including expanding a two-minute time limit for general commentary and dispensing with a rule against booing speakers. He has vigorously fought against a gradual tightening of such restrictions, which his speeches to the council, as well as a host of tirades by other gadflies, have engendered.

"I want a clear declaration that people are not disruptive who engage in technical violations, such as not turning in a card to speak, or not facing the City Council when they speak, or if they make a silent gesture from the side of the room," Norse said Thursday.

Mayor Ryan Coonerty, who began enforcing the two-minute rule last year, said he would consider adopting clearer definitions of what constitutes a disruption of council meetings.

But, he said, "I don't think protected First Amendment speech includes disrupting public meetings. Robert is proposing letting people be booed when they speak to their city government. I fundamentally disagree."

Coonerty said a Supreme Court appeal is worth the taxpayers' investment, and the city will have to pay Norse's legal fees if it loses.

"There are costs no matter what," he said. "Ten years later, this case has never been tried in a courtroom."

Norse said he does not support Nazi views and only made the gesture during the 2002 council meeting to protest then-Mayor Christopher Krohn cutting off another speaker. Krohn determined Norse was being disruptive, demanded he leave and ordered his arrest when Norse refused.

After watching a five-minute video clip of the incident, a federal trial judge dismissed Norse's suit in 2007 and a three-judge panel of the 9th Circuit upheld that decision. But a rare en banc panel of the appeals court agreed to rehear the case and revived the suit in December.

A longtime homeless advocate, Norse has needled the council for years, opposing crackdowns on the city's overnight camping ban and panhandling. He criticized the council for placing what he says are controversial matters on its consent agenda and agreeing to discuss those matters only if council members agree to transfer them to the regular part of the meetings.

ONLINE POLL:

You be the judge in the Salute vs. the City case. Who is right?

Santa Cruz City Council
Robert Norse
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Guilty of Sleeping Jury finds

Collette Connolly, as Star Warrior, is ticketed for Sleeping at Santa Cruz City Hall on August 19, 2010. She was convicted by a jury trial on May 4, 2011 for sleeping and using a blanket. She faces up to 6 months in jail and/or $1000 fine. Photo by Becky Johnson Aug 19 2010

by Becky Johnson
May 3, 2011

Santa Cruz, Ca. -- Jurors delivered a verdict this afternoon in the Peace Camp Six trial. Guilty, Guilty, Guilty, Guilty, and Hung. A sixth defendant, Chris Doyon, was absent and a bench warrant was issued. A good Samaritan paid Doyon's bail, but that "fact" was irrelevant to District Attorney, Sarah Dabkowski, who reported to SENTINEL reporter that there is a warrant for Doyon's arrest. But then facts were never set in stone for Dabkowski.

Why just last January, Dabkowski said "lodge" means "they can't lodge, can't live, can't stay the night, can't sleep somewhere, can't set up roots somewhere if they don't have permission."

However, despite no definition being contained in the actual language of PC 647 (e), Gallagher supplied his own!
Not waiting for the prosecution to take a stab at what "lodging" means in a legal sense, Judge John Gallagher jumped forth and issued his own definition, creating the perhaps greatest grounds on which to appeal the verdict.

Gallagher told the jury that they should use this definition of lodging: "to lodge means to settle or live in a place, that may include sleeping"

Not only had this been a hotly disputed item at the hearing where Frey challenged the Constitutionality of the law based on it being "vague and overbroad" especially due to the lack of a definition, the defense did not have time to digest the meaning of Gallagher's hand-chosen definition in order to prepare a proper defense. Needless to say, neither did any of the defendants last August, September, and October. I mean, for a homeless person to comply, they'd have to stop "living in a place" since 647 (e) covers the entire State of both public and private property!

Then Gallagher sternly told the jury that "Even if you disagree with the law, you must follow the law." This is standard practice in Santa Cruz County courts but has no legal authority. Jurors are allowed to vote their conscience, and rule on the totality of circumstances. They may consider whether a law is being selectively enforced, or that the prosecution is largely political. They can judge the value of the law itself and find "not guilty" even if the evidence is clear that that law was broken. Being a juror is the most powerful position a single person can have on the justice system, far greater than as a voter. Being a foreman of a jury is perhaps the most influential position a citizen can have in influencing how our laws are applied. This jury was having none of that.

"Ignorance of the law is no excuse," the jurors trumpeted self-righteously. But they themselves were ignorant of the law. So were virtually all of the dozen or so police officers and deputies who testified. After Lt. Steve Plageman testified that in his 23 years or so as a deputy, he'd never written a PC 647 (e) citation before August 6th in his life, the DA objected every time defense attorney, Ed Frey asked about their experience in enforcing the law. Judge Gallagher sustained it every time. They were told the issue was "irrelevant."

But was it? How can anyone, much less a bunch of homeless people without access to computers, televisions, or home libraries going to know about an ordinance that law enforcement had never used before? And no one could know what Judge John Gallagher was imagining the definition of illegal "lodging" would eventually be.

Yet the jurors, like contestants at a beauty show, mouthed important truths about justice and the importance of the law, while failing to see a stark example of selective enforcement right in front of their own eyes. It was obvious from the testimony of a dozen police officers that 647 (e) was ONLY being enforced to shut down an otherwise legal protest against laws which criminalize sleeping, and was ONLY being enforced at City Hall and on the steps of the Santa Cruz County Courthouse.

Defendant, Eliot "Bob" Anderson was not convicted when the jury hung on one juror's opinion: That a homeless person should not have to gas their dog, to use one of our local homeless shelters for the night. Eleven jurors disagreed. No one can sleep well tonight in Santa Cruz County.

"We live in a society where our system elects representatives by the voters of California. They pass our laws," the Jury spokesman, Mr. K said following the verdict. "And if the people think the law is wrong, then they should actively work to change it." He also admitted that had Gallagher NOT given the jury a definition of "lodging," they could not have come to a verdict as easily or at all.

Fresh with a victory, it is now possible that sheriff's and SCPD may now feel emboldened to use 647 (e) more widely now> ANY homeless person, whether sleeping or not, in the day or the night, can be arrested for "settling in, or living in a place, that may include sleeping" or for " intending to spend the night without permission" (as DA Dabkowski challenged, as if that were a crime) on both public and private property." Since public and private property encompasses the entire state of California, they cannot avoid committing the law....ever.

Sigh. More homeless jury trials are upcoming. Gary Johnson faces a jury trial for sleeping twice in twenty-four hours, something our doctors encourage us all to do. And Linda Lemaster has a pre-trial before Judge John Gallagher in Dept 2 at 9 am on Wed. May 4th.





"I don't think we could have come to a verdict without a definition," said the jury foreman after the end of the trial.