Judge Burdick dismisses charges against four of the Santa Cruz Eleven

Steve Pleich passes Sgt. Harms and Officer Hedley as he arrives for Judge Burdick's preliminary hearing for four of the Santa Cruz Eleven. Photo by Becky Johnson 

Seven defendants, also similarly charged with 75 River Street Occupation still face felony and misdemeanor charges

by Becky Johnson

April 25, 2012

Santa Cruz, Ca. --  DA Bob Lee's prosecution (some say "witchhunt") of eleven activists and alternative media journalists came to a crashing halt today as Judge Paul Burdick stopped the preliminary hearing after hearing only two prosecution witnesses.

After listening to Officer William Winston of the SCPD and Det. David Gunter's testimony, Burdick challenged Assistant DA Rebekah Young by saying "Ms. Young, you agree that none of these four defendants committed any act of vandalism."

Young offered that if there were any questions, she had brought Sgt. Harms and Officer Hedley to court "just in case." Neither could testify, of course, since neither officer was on the prosecution's witness list.   Burdick ignored her and went on, "I have no evidence in this record that any of these defendants committed any act of vandalism.  You are relying on an "aiding" and "abetting" theory?"

"That's correct."

 "Do you have anything even by inference that anyone intended for anyone else to trespass?"

"It's more helpful, of course," Young offered," if you have defendants who actually committed the crimes while simultaneously witnessing 50, 80 others who also entered the building,"

"I'm concerned the evidence merely shows that the entire group was marching, as the flier explained 'to a foreclosed property' and intended to protest in front of the building. Do you have any evidence that suggests anyone intended to do anything other than mill about and not enter?"

Burdick continued. "My sense of what the evidence established, was that almost immediately someone entered the building. The officers testified there were "no signs of forced entry." Ms. Young, you need to establish that these four defendants intended to enter the building, occupy for  a period of time, and stay after being ordered to leave. There isn't anything in the evidence to infer that they did.

All you've shown is that as part of the protest, when like others, they saw the doors were open, they went in and out to see what was happening."



SCPD police evidence photo of SENTINEL reporter, Jessica
Pasko photographed parking on the property and walking to 
get her story on December 1st at 75 River Street. Pasko was not charged.

"Your Honor, there's no fun in taking over a building you're allowed to be in. That was the point. To break the law."

"And, you've presented no evidence that any of them were in the building after November 30th."

Young: "You have to look at the group as a whole. They were meeting in concert with other protesters.  Protesters, some of  who were outside the building with their arms clasped."

SCPD evidence photo of protesters, some with arms locked, standing together outside 75 River Street on November 30th. Photo is time stamped at 4:24PM, more than 3 hours before police testimony that protesters were warned they were trespassing and must leave or be arrested.

"None of the four here." 

Young: "Some were with bandanas covering their faces or hiding their identity. They knew they were trespassing."

Burdick: Ms. Young, you have presented no evidence that they wouldn't leave quietly if asked.
You paint with too broad a brush. The evidence is insufficient that anyone intended to commit trespass by design or agreement with other parties. I move to discharge all four defendants.  Someone did commit a crime in that building. Crimes were committed by some individuals, and we don't condone this behavior, but the evidence does not show it was done by these individuals."

Young: I will move to refile charges against Franklin Alcantara and Cameron Laurendau. We have video as explained by Det. Gunter, of Mr. Laurendau inside the building."

Burdick:  And it was in the daytime. Testimony was that the warning given by Sgt. Harms was after dark. And Gunter's testimony is not credible. Gunter testified on March 13th that he was not present at 75 River Street on December 2nd. On Monday, April 23rd, he testified he was present at the building on December 2nd. His testimony is discredited.

Stunned audience members struggled to remain under control.

 Linda Lemaster celebrates the dismissal of charges
against Franklin "Angel" Alcantara, Grant Wilson,
Cameron Laurendau, and Edward Rector by Judge
Paul Burdick on April 25th. Photo by Becky Johnson

But minutes later, outside the courtroom, defendants, family members, and supporters celebrated with smiles all around. While seven are still charged with felony conspiracy to trespass and vandalism as well as misdemeanor charges, the news for the remaining defendants is very good. Unless the police and DA come up with some new evidence that they haven't uncovered in nearly five months after the occupation of the vacant bank building, chances are poor that Young can get a conviction.

Those wishing to sign the petition to Free the Santa Cruz Eleven are invited to do so at santacruzeleven.org

COMMENTARY BY ROBERT NORSE

 Becky: I'm amazed and delighted with this story. I don't know how you could write down so many details so fast. I tried and now have to decipher my own handwriting. Glad you took the time and trouble.

HOLD THE HOOPLAH

I'm less celebratory than many about these dismissals (though they're definitely a good sign). A local attorney advises me that because Burdick declined to dismiss the charges "with prejudice" they can be refiled. This is what Young said she'd do in the cases of Angel and Cameron. She also suggested she'd be reviewing the cases of Ed and Grant.

Further, Burdick denied a motion by Angel's lawyer, Rubin, to sanction D.A. Young for prosecutorial misconduct. Young apparently presented briefings to the judge that she didn't supply to the defense. She also presented Gunter's contradictory testimony that seemed to indicate he was either mistaken or lying about being present on December 2nd.

It wasn't clear to me whether these two actions or some other eager blunder by Young was the focus of Rubin's motion, but Burdick summarily denied it. Had Burdick actually granted or even held a hearing about Rubin's motion to hold Young accountable it, it might have actually had a future deterrent effect on the color-by-numbers “being-in-the-building-is-a-conspiracy” prosecutor.

Instead it appeared Burdick was doing all he count to counsel and coach Young in her next appearance (read: refiling of charges). His advice may give her what she needs to provide to give a patina of plausibility to this costly charade and mechanically refile charges with new police witnesses.


ONE POSITIVE NOTE

On the upside, Young's office--in my case--after four failures to provide video tapes requested, advised me yesterday that she's finally turning over video, available a week before to other defendants.

I hope to post some of it on-line to show the extent of local interest in this attempt to reclaim space. (Those worried they might be fingered as “co-conspirators” should know that the D.A. already has all this video, so it's nothing new to them.)

We're still waiting for her to provide supplementary police reports and other evidence—still ignored in our requests.Indeed on March 13th when Young failed to give a date for handing over all the evidence in my case, Burdick set the date for a Motion to Compel her to give over this stuff May 18 8:15 AM in Dept. 6. No other attorney to my knowledge has filed such a motion--which makes me wonder how they're spending their time.

During Monday's Preliminary Examination of the 4, police revealed there were still more video just sitting idly on police servers unreclaimed and not yet available to the defense. Either willful misconduct and/or negligence by the SCPD and the D.A.'s office--in my book. Today's Sentinel notes numerous stabbing and murder cases being brought into court (See http://www.santacruzsentinel.com/ci_20480393/santa-cruz-man-face-trial-murder-woman-whose
and
http://www.santacruzsentinel.com/localnews/ci_20483855/cops-and-courts-april-26-2012).

Yet court, D.A., police, defense, and community time and money is going to continue to be showered on this political attack on Occupy Santa Cruz and local activists.They may put even more energy into this phony prosecution because part of their dirty underwear has been exposed here..


PAST TIME TO FIGHT BACK

Which means we need to get more organizations on board demanding these charges be dropped. We need more protests organized at the courthouse. We need an attorney to ready a civil lawsuit when and if these charges are dropped. (Perhaps Grant or Ed could start even now, if their charges aren't refiled.).

Every day that a defendant is under the toxic pressure of this prosecution. Every hour she or he loses from work. Every instance of discrimination in employment or housing that results from this smear job--should be compensated for. And the unrecoverable cost is even greater: How many have been deterred from active protest by this chilling witchhunt? How many are frightened to speak their mind or raising his voice against the greater criminals--the Wells Fargo banksters, the Drug War prison pushers, the Obama/Romney warmongers, the local authorities who routine crush homeless lives?

One "liberal" City Council candidate who recently announced his campaign nervously declined to wear a "Empty Buildings are THE crime. Free the Santa Cruz Eleven!" sticker because it was too "controversial". Another City Council member clearly in the building has maintained a silence on this issue instead of denouncing the proceedings. And we haven't heard a peep from The Sentinel and Patch, both of whom had “trespassers” in the building whose identities are known to the police.

The effects of this buckshot attack on Occupy Santa Cruz has had cascading effects that undermine all serious political dissent. For the health of each of us and of our community, it's time to fight back.