City on a Hill attends Song-Crime Appeals Hearing

Corrections

In the original version of this story published on January 20, a second part of Becky Johnson’s quote was erroneously left out of the published story. The paragraph should read “It was really hard for us to hear that singing for three hours continuously in one spot would be unreasonable,” Johnson said. “I sang less than half an hour and we had 7 witnesses.”

City on a Hill Press regrets this error. This post was updated on January 22 to reflect this change.

Homeless Activists Ruled ‘Unreasonably Disturbing’

Judges say citations justified under city ordinance for noise violation

By Nicole Pritchard

City on a Hill Press
Found online here.

Published January 20, 2011 at 2:37 am

Becky Johnson was ruled as “unreasonably disturbing” by Santa Cruz County Superior Court. Johnson’s challenge to the city ordinance was denied. A homeless activist, Johnson was cited for singing downtown. Photo by Sal Ingram.

The Santa Cruz County Superior Court recently ruled homeless rights activist Becky Johnson “unreasonably disturbing” and defended the language of the Santa Cruz noise ordinance against accusations of unconstitutionality.

The case involved tenant Sean Reilly, who complained to the police about noise from Johnson’s homeless activism group under his window on Pacific Avenue around 11 a.m. on a day in January last year. Reilly works the night shift at his job and sleeps during the day.

Local attorney Ed Frey represented Johnson in her appeal hearing on Jan. 6. A longtime friend of Johnson, Frey challenged the noise ordinance as being “too vague” as applied to her case.

The noise ordinance has been a highly contested issue among many groups in the Santa Cruz community, most notably the homeless population and the student population. The panel’s decision has far-reaching consequences in the social and political realms.

Controversy arose over a misplaced semicolon in the prosecution’s presentation. Frey argued that it changed the meaning of the ordinance by making it possible to receive a citation when only violating one part.

“If your noise [is] too harsh, it’s too prolonged, it’s at a high volume, it’s physically annoying … if all of those elements are together,” Johnson said, “then there’s reasonable cause to issue a citation. Ed was pointing out that if you take all of these things and put them together, that would be a reasonable ordinance.”

However, the bench saw the issue differently. Judge Ariadne Symons said the singing was too close to residential units to be considered reasonable.

“Were it a completely commercial street with no residences, I think this would be a different analysis,” Symons said.

Johnson said a police officer walked by her group standing outside of Bookshop Santa Cruz without approaching them. She said this showed that the police officer thought the singing was reasonable.

However, upon receiving a complaint from Reilly, who lives above Bookshop Santa Cruz, citations were issued to four individuals. Among the four was Johnson, who had been handing out pamphlets regarding homeless issues and singing songs with a small group on Pacific Avenue.

Frey saw the ruling as socially and politically motivated on the judges’ part.

“If they rule in favor of the likes of Becky Johnson or a homeless person, they are not likely to be welcome in their social circles,” Frey said. “What other explanation could there be? Certainly no valid constitutional one.”

Frey said that residents that live over Pacific Avenue and sleep during the day are not of “ordinary sensitivity,” but Judge Burdick, another judge on the panel, disagreed.

“We have rejected that argument,” Burdick said. “Someone who works the graveyard shift and sleeps during the day is a common occurrence.”

Local activist and radio host Robert Norse sees the ruling as part of a pattern that has arisen in Santa Cruz.

“Musicians are being driven away at the slightest pretext,” Norse said.”[The city is] using these local ordinances to go after them.”

Norse participated in the tabling for homeless rights the day Johnson was cited. Both Norse and Johnson said they noted inconsistencies between their experiences on Pacific Avenue and how the court weighed the evidence. Johnson claims the court got some basic facts wrong.

“It was really hard for us to hear that singing for three hours continuously in one spot would be unreasonable,” Johnson said. “I sang less than half an hour and we had 7 witnesses.”

Norse said the content of the songs and literature may have been the reason for the citation.

“The judge gave the appearance of fairness, but did not let some of the basic facts of the case come out,” he said. “Our case, of course, is the case of people in front of Mayor Coonerty’s bookstore, criticizing Mayor Coonerty’s anti-homeless laws.”

As the judges left the courthouse, Norse broke into song. He chose one of the songs Johnson had been cited for singing. Lyrics penned by Norse, the song is to the tune of Petula Clark’s classic “Downtown.”

“Don’t let them steal your rights, Downtown!” Norse sang. “Tickets are waiting for you.”

Sharon Paight Sleeping Ban trial ends in abrupt dismissal

Video of Ed Frey after winning a dismissal for his client, Sharon Paight.

"She's the Red Queen. She does whatever she wants."
--- Attorney Ed Frey Aug 21, 2009

by Becky Johnson
Aug 22 2009


Santa Cruz, Ca. -- About eight years ago, Sharon Paight was working as a CNC machine operator when the business ended its local operations and moved to Guadalajara, Mexico. Sharon was not offered a job in Mexico, and due to an economic downturn, could not find another job in her field.

She received severance pay and unemployment insurance for a year, but eventually that ran out. Around this time, her housing situation ended and she moved into her car. She considered this to be a highly temporary situation, to be rectified as soon as she was able to get another job. However, there was such a general economic downturn that no job was forthcoming. The only job she was able to get was through Labor Ready. She worked full time for Goodwill Industries at a rate slightly greater than half of her former wages. At this rate of pay, she remained unable to afford housing near her work.

In 2005, Sharon was found guilty of sleeping at night within the City of Santa Cruz.

"I could not use the National Guard Armory shelter program," Sharon explained. " In order for me to be up in time to get ready for work, I had to start my day at 4AM. You are not allowed to drive your car to the shelter, or to leave by using any other means than their bus. The earliest I could count on being free would be three hours after the time I need to be in order for me to keep my job."

"HELPING" NON-PROFITS PART OF THE PROBLEM

Sharon worked for Goodwill Industries. This non-profit was at the forefront of defeating an initiative which would have raised the minimum wage in Santa Cruz, in three steps to $9.25/hr. The CEO of Goodwill Industries threatened to move the non-profit outside of the City limits if the ordinance were to pass. It was defeated. But it's precisely because of the low wages, that Sharon could not afford housing. Then to make matters worse, Sharon's hours were cut down to part time, and then finally she was laid off completely. Today, her sole source of income is her unemployment insurance.

Sharon has been a member of the 24-HOUR Fitness on Soquel Ave. in Santa Cruz, Ca. since 1998. When she became vehicularly housed, she found the showers, bathrooms, and lockers at the facility to be a great help to her in order to stay functional and employed. At no time did anyone in charge ever express any concern about her parking her vehicle on the lot of the facility where she had a paid membership. However the neighbors complained.

On March 19th of 2009, SCPD Officer #139, Rodney Dugolow, cited Paight in the early morning hours in the parking lot of the spa. The private parking lot allows members to park there for up to three hours. Sharon, had in fact, been there for over three hours when the officer arrived. She knew she could be cited in the lot because she had been cited in 2005 in the same lot.

"That one I was found guilty. In 2005, the officer did catch me sleeping. But in 2009 I was wide awake. I watched as he circled the parking lot, before he parked and came over to my vehicle," Sharon said on a Free Radio Santa Cruz following the "trial."

"I was sitting up, wide awake in the back of my van with the light on sorting through my laundry looking for something to change into before going into the spa."

THE LEGAL CHALLENGE BEGINS

Ed Frey appeared in June before Judge Timothy Volkman (Symons was absent that day).

"I told Judge Volkman that we wanted to challenge the constitutionality of the law. We needed to determine if the law as applied to this defendant was constitutional. Does it violate the State or National Constitution?" The law in Santa Cruz Paight was cited under, MC 6.36.010 section a outlaws the ACT of sleeping out of doors or in a vehicle between the hours of 11PM and 8:30AM anywhere in the City Limits on both public and private property.

"If you can't sleep you can't live. You've got to have sleep. It's like you've got to breathe," Ed explained. And although years ago Judge Thomas Kelly ruled the Sleeping Ban is constitutional because "they can sleep in the daytime," Frey disagreed. "Sharon can't sleep in the daytime. Her only income is her unemployment benefits. If she doesn't go out and look for jobs she loses her unemployment benefits."

Volkman set a motion to dismiss for August 21st in Judge Ariadne Symons court.

"Late in June I set out to contact the city attorney so that we could voluntarily work out a set of facts. John Barisone was less then cooperative. He told me " We'll dismiss it if you go and get written statements from the owners of the property and the lessee."

Ed contacted the manager of the spa. She told Ed that they don't allow nighttime sleeping in their parking lot "because it's illegal in the City." They were not going to write a letter for Sharon. Furthermore, the owner of the property was completely unavailable living out of town and without contact information.

"Their reasoning was 'we only oppose it because it's illegal. So we don't allow it.' We were caught in a catch 22," Ed said.

SYMONS SPRINGS A "SURPRISE" TRIAL ON DEFENDANT

Yet when Sharon and Ed arrived in court, they were surprised to see that the officer was there and so was Kelly Walker of the City Attorney's office. Frey reminded Symons that they were there to hear a motion to dismiss.

Judge Ariadne Symons said "The City Attorney is here, the officer is here, so we are having a trial."

In Symon's court, on August 21, 2009, SCPD Officer Rodney Dugolow testified under oath that when he looked into the rear of Sharon's van, he witnessed Sharon sleeping underneath some blankets. Dugolow was the only witness for the prosecution. The only evidence presented was his testimony. When Ed asked him if Sharon had permission to be on the property, he testified that he didn't know.

After presenting the officer's testimony, the Prosecution rested.

PERJURY BY A SANTA CRUZ POLICE OFFICER?

Ed immediately moved to have the case dismissed since the officer didn't know if she had permission to sleep in her vehicle (the ordinance allows an exception for up to two vehicles per business if they have the written permission of the owner and the lessee.)

"I'm not going to grant that motion,"Symons said. “I'm persuaded she was sleeping.”

Ed Frey responded by telling her that his client's testimony differed from that of the officer and that he would then be forced to swear in Sharon Paight and put her on the stand in order to rebut Officer Dugolow's testimony.

"I don't think that's necessary," replied Judge Symons. "What else do you have?"

"I do have a statement from Karen Yen, a Harvard-educated psychiatrist with a practice in Scotts Valley. I have a statement here that to deprive someone of sleep cuts down the effectiveness of their immune system, it leads to depression, and is very bad for the health of the person"

Ed told the Judge that Sharon was prepared to testify that she was sitting up, wide awake with a light on at the time the officer knocked on her van. Sharon has said that she was in the back of the van sorting clothing at the time the officer contacted her. She was preparing to change her clothing prior to going into the Fitness center to take a shower. But she never got to testify to any of that.

“I'm persuaded she was sleeping,” Symons said. "And I believe the officer was being honest” she said. She recognized that police officers have a “difficult task.” But that “the way the windows were blocked off” and the question of whether she was legally parked there, in addition to the officer's testimony had convinced her that Paight had been sleeping and was properly cited. “I'm persuaded that she was sleeping.”

Sharon Paight shouted out “I wasn't. He's lying! I was wide awake.”

Symons did not admonish Paight for her outburst or cite her for contempt of court. Instead, she asked Sharon to be patient while she explained.

“She said she was a member of the 24 Fitness Spa but seeing the absence of a representative of 24-hour Fitness, we can't determine if she really was a member." Paight was NOT cited for trespassing and was never given the opportunity to show her membership card, yet Symons continued at some length about how difficult it was to determine if Sharon REALLY was a member of the spa.

Again Ed Frey tried to have his client testify on her own behalf but was incredulous when Symons again rebuffed him.

“I would never prevent you from allowing your defendant to testify. But the reason I stopped you, is that this case is going to be dismissed.”

She just told Sharon Paight “The reason I'm not going to have you testify is because I'm going to drop all charges against you.” Symons did not say she was dropping the case in the interest of justice. She didn't say it was because of insufficient evidence. In fact, she said the opposite. She SAID that there WAS sufficient evidence for a conviction, yet was dismissing the case. She announced "case dismissed" and the bailiff quickly urged the few supporters there to leave. Then Symons gratuitously thanked the City Attorney who was there to prosecute the case, but made no objection to her sudden and abrupt dismissal.

“And Mr. Walker, I thank you for appearing today. I know you don't normally do so in these instances.” Symons was referring to the odd practice in Santa Cruz County courts in which infraction cases charged by the City of Santa Cruz are not prosecuted by either a DA nor a City Attorney. Instead, only the officer testifies and the Judge (there is never a jury trial) serves as both the prosecutor and as the Judge. Despite the obvious conflict of interest between prosecuting a case AND being responsible for judging the merits of the case, this is the usual procedure in Santa Cruz for infraction crimes.

TRYING TO UNDERSTAND SYMONS

When asked why Symons had abruptly ruled to dismiss the case despite her declaration that she had been convinced that the City had proved its case against Paight, Ed Frey was direct.

"She did it in order to sweep it under the rug."

When interviewed outside of the courtroom after his victory, Ed Frey described Symons behavior as arbitrary and regal. "In the first part of the hearing I requested that we set up some sore of discovery procedure: some procedure by which you establish facts in order to create a record, and where you make an argument based on that record. But she wouldn't have it. She wouldn't hear it. She wanted to rush the thing through. Just shove it under the rug and dismiss it. When I attempted to establish facts on which we could make a foundational record, she wouldn't hear it, she wouldn't have it. She wanted no record of that."

"She's the Red Queen. She does whatever she wants," he concluded.

Sharon, however, couldn't believe that the police officer had lied under oath on the witness stand. She explained her outburst.

"I wanted to let her know that the officer was lying. That upset me more than getting the ticket, that an officer of the court was up there lying."

While Ed Frey and Sharon Paight cannot challenge the constitutionality of Santa Cruz' Sleeping Ban due to Symons unexplained dismissal of the case, they plan to file a complaint against the officer with the DA.

"Sharon and I are going to challenge this---we are going to ask the DA to prosecute the officer for perjury which is a felony," Ed promised.

How DA Bob Lee and Ariadne Symons subverted our justice system

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/

Judge Returns Guilty Verdict In Metro Trespass Trial of Robert Norse

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".


ARGUMENTS IGNORED

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).


PROSECUTION-MINDED JUDGES

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

I hate to be defending a crazed-teenage-meth-head-baby-rapist-murderer but....

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.

Arresting a Whistleblower for "Trespass"

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
Location Details:
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:

http://www.indybay.org/newsitems/2009/06/08/18600978.php


BACKGROUND

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

http://www.huffsantacruz.org/

831-423-HUFF

City Takes Broadcaster to Court for Chatting at the Metro

Trial Friday May 15 1:30 PM

by Robert Norse

Thursday May 14th, 2009

originally published at: http://www.indybay.org/newsitems/2009/05/14/18594788.php
Photo by Becky Johnson taken at the Free Radio Santa Cruz studio in November 2008

Over 6 months ago on Sunday 11-2-08, I was approached by a Metro Security guard at the Metro Transit Center in downtown Santa Cruz. I was interviewing two homeless men for Free Radio Santa Cruz. The guard insisted I leave. I declined to do so. He called the police. He insisted I be given a citation for "Refusal to Leave a Business When Asked"--a charge with an apparent fine of $200+ Police did so and demanded under threat of custodial arrest that I leave the property. I was forced to do so. A week or two later I returned with a group of protesters and we reasserted the right to be in that public space.

HOW IT BEGAN

Two homeless men, Les and Jack, approached me after my Sunday radio show as I walked along Pacific Avenue and complained that religious sermons were coming out of the speakers at the Pacific Ave. entrance to the Metro Transit Center. They said they'd complained and were told to leave with the sermonizing continuing.

I then went to the Metro, found they were correct, and began recording what the Metro speakers were broadcasting. I then approached a security guard who refused to identify himself or his superior and declined to help me. In subsequent public records act requests, the guard involved still remained anonymous.

I then approached a Metro Supervisor who arrived on the property--Mr. Ed Nelson--who had the religious sermonizing turned off, explaining that classical music was customarily used to "discourage" assemblies of young people on the adjacent public sidewalk and in front of the Metro Center. All this is documented on audio tape available on line on this website (see below).

An hour later I returned and began interviewing Jack and Les near the sidewalk at the broad entrance way to the Metro Center next to Pacific Avenue. When a security guard directed two Latino men to "move on", I advised them that they had the right to be there. A second security guard, whom I later learned was named D. Delgadillo, then approached me and demanded I move. When I insisted he identify himself, he demanded I leave the property.


BUSTED FOR CHATTING AT THE METRO

The SCPD instead of defending my right to be there and advising the Metro Security guards to stop bothering me, forced me to leave the property on threat of arrest.

A Metro supervisor subsequently humiliated me further and banned for the day because I was visibly tape recording the complaint I made to her and her response.

More of the story can be found at:
"Ticketing for Standing and Talking at the Metro Bus Stop Sunday"
http://www.indybay.org/newsitems/2008/11/04/18548934.php


TRIAL ON MAY 15, 2009 -- FRIDAY AFTERNOON

The charge is refusing to leave a "business" when asked to do so.

Attorney David Beauvais of Berkeley will be defending me in the case. Attorney Kate Wells will be filing the subsequent federal law suit for damages. The trial will be before Judge Ariadne Symons without a jury. City attorney Barisone or one of his attorneys will presumably be appearing for the city.


SUBSEQUENT PROTEST

I returned to the Metro Transit Center a week or two after the police incident with a group of people, distributed fliers, and tried unsuccessfully to get Metro management to clarify what the rules were for the public and what the powers of their security guards were (i.e. could they simply ban people whose attitude they didn't like). I got no answer. However on this occasion, with video cameras rolling and lots of witnesses, the same guard did not harass or attempt to arrest us.

The story of the protest is told at in a subsequent posting on indybay.org/santacruz in the story--" Rotkin Claims: No Flyering Allowed at the Metro Center--Protest 11-26 11:30 AM"
http://www.indybay.org/newsitems/2008/11/25/18552885.php


ROTKIN'S ROLE PROTECTING THE POLICE

Vice-Mayor Mike Rotkin (who has been on the Transit Board for some years) initially advised me there was no "flyering" allowed. I wasn't flyering when I was cited on November 2nd (simply standing and talking to two homeless guys). When I heard Rotkin's outrageous rule, I and others organized a peaceful protest that specific included distributing a flyer that described what happened on November 2nd.

We spoke to members of the public and distributed literature for about an hour. Rotkin subsequently called me and advised me that he was mistaken--that it was okay to flyer the public at the Metro Transit Center.

As long as it didn't "disrupt business."

Somewhat later in a subsequent interview, when I brought it up again, Rotkin apologized for the misunderstanding, but took no action to look into the bogus ticket.

He was also not helpful in securing documents for my trial, clarifying the rights of passengers, or advising the Metro and City Attorney to drop the case. He could have spared the city, county, and Metro Transit District money in these lean times by acting promptly and fairly to quash this groundless prosecution.

Instead we're going to trial Friday.


POLICE MISUSING THE LAW TO DRIVE AWAY THE POOR

The trial will also highlight the collusion between security guards and the Santa Cruz Police Department in accepting an unlawful arrest.

Members of the public at the Metro are supposedly protected by a law that requires they be given written notice, a specified period of time, and an opportunity to have a hearing--as well as the right to use the facilities unless actual disruption is occurring (MC 9.60.0101 - TRESPASS ON PUBLIC TRANSIT FACILITIES)

Police and Metro Security Guards have colluded instead in using an inapplicable broader law that allows private businesses to order people off their property. Obviously, the Metro is not a private business, but a public facility. Even if it were, MC 9.60.010 REMAINING ON BUSINESS PROPERTY AFTER A REQUEST TO LEAVE. provides exceptions for "prohibited discrimination", "duties relating to common carriers", and "inhibition of...freedom of speech or assembly."--all of which were involved.

It took six months worth of Public Records Act requests and discovery demands to get the SCPD to cough up some statistics: Not just me but five other people have been apparently wrongly charged under this broader law instead of the more appropriate MC.9.60.0101). It's a nice way of sweeping people away from an area without any due process.

Of course, that's what happens to homeless people all around Santa Cruz.


AUDIO OF THE ENTIRE INCIDENT AVAILABLE

Those who want to hear what happened on November 2nd can go directly to the audio file included in the first story. I recorded virtually everything that I and the various guards, supervisors, and police said--as well as the original complaint I received that the Metro was broadcasting religious sermons over its loudspeakers.

It may have been management resentment at my raising this issue with the security guards that motivated the subsequent harassment.

I was also critical of the guards for harassing poor and possibly homeless people hanging out there who were doing nothing wrong. And refusing to identify themselves or their superiors when asked to do so.

The public is welcome to attend the trial. I shall move to have it audio recorded for public broadcast, but judges have become increasingly secretive in the past few years, so I may be banned from making a recording.

If you can't make it on Friday, I'll be discussing the case on my Sunday show at 11 AM on Free Radio Santa Cruz at 101.1 FM (http://www.freakradio.org).