Ed Frey, Gary Johnson jailed for 6 months for Sleeping

Defendants refused 400 hours of Community Service, Punitively sentenced by Judge John Gallagher with the maximum possible sentence: 6 months in jail, 3 years probation;

Frey and Johnson taken by armed sheriffs out of the courtroom in chains to begin serving sentence for the act of sleeping

June 10, 2011
by Becky Johnson

Santa Cruz, Ca. -- It began as a motion by Ed Frey for a new trial. Disturbing reports from the jurors of the Peace Camp Six trial jurors detailed one juror refusing to deliberate, telling all it was a waste of his time, and screaming at another juror who wanted to continue to deliberate---all classic examples of juror misconduct. But Judge John Gallagher was only interested in quashing any such reports by any means possible.

The statements are hearsay," Gallagher ruled. "The proper way was to have contacted jurors and have them deposed."
" I'm asking for that now. I need the names and contact information from the court in order to do that.

"This is not the proper time to make that motion. You had your chance. Motion denied."

The reports issued verbally from the Foreman of the jury and backed up by about 8 jurors were made directly after the jury had been excused, but before the jurors had left the courthouse. In a 30 minute discussion attended by Ed Frey, DA Sara Dabkowski, and recorded by Becky Johnson, several allegations of juror misconduct were made. Ed Frey quoted from a partial transcript of the recording and offered to play the tapes in their entirety for the Judge and the court.

Ed quoted the Jury Foreman who said,

JURY FOREMAN: "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?"

Then Ed Frey quoted District Attorney's recorded response to the Jury Foreman's statement.

ASSISTANT DISTRICT ATTORNEY SARA 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.

Then Ed Frey repeated a statement made by a female juror:

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).

Finally Ed quoted the jury foreman again.

JURY FOREMAN: 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."

Ed told Gallagher that the discussion had been recorded, DA Dabkowski was present for it, and that we were willing to play the tapes for the court. Gallagher was having none of it.

"The tapes are hearsay," he announced. Frey then asked for the names and contact information of the jurors so he could go and get sworn statements from them. Gallagher refused. "You've had ample time to seek that information," he ruled, even though there is no time limit on providing that information to the court. "I'm asking for the time now," Ed responded.

"Motion denied."

I reeled. In another court on another day, I had been called before the judge and quizzed and then chastized for having SPOKEN to a juror! Here 8 out of 12 jurors were complaining of actual juror misconduct and Gallagher couldn't dispose of that quickly enough!!

So much for the APPEARANCE of propriety!

Having lost the motion for a new trial based on juror misconduct, Frey moved to the more difficult area: Gallagher's OWN misconduct. It's never easy getting a sitting judge to admit he made an error.

Frey challenged Gallagher for having provided for the jurors his own definition of "lodging" since PC 647 (e) did not come with such a definition.

"Where did you get the authority to claim the definition of illegal lodging included sleeping? It's not in the law itself. Opposing counsel cited two authorities, neither of which addressed sleeping as a criminal act. The defendants last August had no access to a definition of "lodging." The sheriff's who enforced it had no guidelines or definition to determine what "lodging" was. Only when we get to trial do we find that you, yourself provide that definition to the jury. Where did you get that definition? On what authority did you base it?

"And how were the defendants last August supposed to know what "lodging" is? You, yourself said it is equivalent to sleeping. But where did you get that?"

"I got it from a dictionary," Gallagher admitted, so softly his words were barely audible. "And the defendants were warned first that they were illegally lodging."

Gallagher was referring to the unsigned notice sheriffs handed out to anyone at Peace Camp 2010 who was sleeping when they came around. Since they only cited people who were sleeping, it appeared to all that the county was only concerned about arresting people for sleeping. Even the jury foreman mentioned it.


PHOTO: Copy of unsigned notice given by sheriffs to Peace Camp 2010 protesters an hour before arrests were made. Photo by Becky Johnson


JURY FOREMAN: 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.

Frey was adamant about pressing this point. He had filed a motion to dismiss based on vagueness of PC 647 (e) at a January 21st hearing this year. At that hearing, DA Sara Dabkowski argued that a definition was not necessary since "everyone knows what "lodging" means. It is a common word that puts people on notice that 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. So it's not unconstitutionally vague on its face as written." A complete transcript of that hearing can be found here.

Yet at trial, and against the objections of the defense, Judge John Gallagher introduced his own definition of "lodging" to help the jurors reach a 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."

He told the jurors as part of the Judge's instructions, "Even if you disagree with the law, you must follow the law." But whose law? The law passed by the California legislature? Or the law as defined by John Gallagher from a dictionary at trial?

He told jurors that to find a defendant guilty of illegal lodging, they must "commit the prohibited act with wrongful intent."

"The defendants are charged with unlawful lodging. To find them guilty you must:

1. determine that the defendant lodged in a building, structure, or place
2. defendant did not have the permission of the owner or person in charge

After the verdict, jurors confessed that they had relied on the definition of lodging as supplied by Judge Gallagher to reach it's verdict. They were asked whether they were concerned that the definition of "lodging" was something that just popped out of the judge's mouth and was not contained in the law.

JURY FOREMAN: 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. Since "lodging" was defined by the judge, that made it pretty clear.

AND

JURY FOREMAN: "If we had not been given that instruction....you're right, "to lodge" is very vague."

ASSISTANT DISTRICT ATTORNEY SARA DABKOWSKI had, at the time, defended Gallagher's decision to provide a definition of "lodging" for the jury. She put forth that "with the lodging we thought it helpful to give a definition." (Was the "we" the prosecution and the judge acting together as a team?)

But at today's June 10th hearing, DABKOWSKI sniffed that her two authorities cited by the prosecution that "We didn't say they defined 'lodging'. It was about conduct. The man was sleeping in a tent."

There were no tents at Peace Camp 2010 and the ONE citation made by the prosecution was not using 647 (e) and did involve using a tent.

"Mr. Frey had the opportunity to offer his own definition," Dabkowski offered, but that begged the question of when? Gallagher had given it to the jury during the "Judges Instructions" portion of the trial. Certainly Frey couldn't have done it then.

And if Frey could have, then he surely he would have. He surely would have included the 1st amendment as part of the instructions, that "Congress shall make no law which abridges the freedom of speech...the right to peaceably assemble...and the right to redress government grievances." Pulling out a law that no one had ever used, that was not defined, and was selectively enforced only against the protesters, surely violated these Constitutional protections.

Gallagher denied that the protesters in August 2010 didn't know what "lodging" meant. To him it didn't matter. "I think you knew (you were illegally lodging) because the officer told you that you were." But did the officer's themselves know what constituted illegal lodging?

When asked on the stand, Lt. Fred Plageman, the highest ranking officer at the County Building, and who had directed the busts last August, testified that they cited people sleeping in bedding because "one could draw the conclusion that they are there to spend the night." But, as far as in custody arrests for illegal lodging, Plageman was surprisingly opposed. "Custody is a big drain on resources, and not necessary for this type of offense."

Frey told the court, " We see now, very clearly, that no one knows what "lodging"means until the time of trial. A written warning does not meet the test. And this court had so little confidence that the jury could find what "lodging" is, they felt they had to supply their own definition.

Indeed, Gallagher's language, which he claims came from a dictionary, contains suspect language. He used the term "settled in" as an indication of illegal behavior. There is legal precedent for this language. 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."

While PC 647 (e) does not prohibit blacks from coming into the State, it does condemn to jail any person found within the State boundaries who does not have some form of permission to to sleep, live, or spend the night. That means any person in the State of California can be arrested on sight if they can't prove they have permission to "live" somewhere.

This sounds little different than article 13 of the Indiana State Constitution of 1851. Just substitute the word "homeless" for "Negro."

But the County of Santa Cruz, the County Sheriffs, City police, and the judges at the Santa Cruz County Courthouse have all decided that sleeping is a criminal act. They have decided that depriving homeless people of any right to sleep, any ability to sleep on either public or private property is the cornerstone of their policy to criminalize homelessness. And the jails are full of homeless people.
"I instructed correctly at trial that sleeping is part of the definition of lodging. And you can be punished for that conduct."

DA DABKOWSKI moved on to the sentencing phase. "We are asking for 400 hours of community service from Mr. Frey. People who worked at the County Building said they feared for their safety when they had to walk by people."

Frey argued, "We were expressing ourselves. The first amendment is the most valid right we have. 400 hours of labor for expressing ourselves? That's outrageous. I didn't even know there was a "lodging" law. We were there to protest the Sleeping Ban of the City. We were speaking on behalf of the poorest of the poor. 400 hours is outrageous. I won't serve them."

"Then I sentence you to 6 months in County Jail," Gallagher announced, the maximum sentence possible under 647 (e). Frey asked to be released long enough so he could file an appeal.

"Okay. $50,000 bail!" Double-outrageous.
"I can't find it in any of the laws that were cited that you can't sleep. Go home tonight and sleep if you can, and let my words ring in your ears."

Then Gallagher turned to Gary Johnson, who is homeless. "Do you accept 400 hours of community service?"
"I have more of a problem with the 3 years probation clause "obey all laws." I have to sleep. I can't go three years without sleeping."
"Are you turning down the conditions?"
"It's not that I won't. I can't. I have to sleep. I have to sleep tonight. Where can I go and legally sleep in the State of California?"
"Do you accept the 400 hours of Community service?"
"As a citizen and a patriot, I cannot."
"Okay. Then 6 months in the County Jail for you too. Report to jail next Friday at 3PM."
"But I have to sleep TONIGHT."
"Okay. You can sleep in jail. You will be remanded into custody at the end of this hearing."

Gary Johnson and Ed Frey were handcuffed and led off to jail by County Sheriff's. A protest is scheduled for Monday, June 13th, on the County Courthouse steps beginning at 7:30AM and continuing until....