The following are outtakes from five separate audio recordings of Defense Attorney, Ed Frey, District Attorney, Sara Dabkowski, Becky Johnson, Linda Lemaster, with Jury Foreman, Mr. Kauffman, and with 8 jurors. A ninth juror opted to not be recorded and can be heard asking that the recording be turned off. The other jurors said he was a doctor, practicing at Dominican Hospital, and that he was the bullying and non-participating juror.
AUDIOTAPE # 1 1min and 42 seconds
BECKY: Do you mind talking to us a moment about the case?
FEMALE JUROR: I can't. I've got classes. (walks by hurriedly. This juror had formerly agreed to be interviewed by Becky, and was a student at UCSC).
(Becky confronts DA Bob Lee as he walks through the hall "Do you want to talk about your verdict? That you've solved homelessness in Santa Cruz County? That you can have every homeless person arrested on sight?" Lee passes through without comment. Becky returns to interviewing jurors)
BECKY: Do you mind talking about the case?
FOREMAN KAUFFMAN: ....we had a juror that didn't feel that any more discussion would be helpful, was a waste of his or her time. And really wasn't willing to allow for further discussion to happen.
SARA DABKOWSKI: Are you aware that a recording device is on? And do you object to a recording being made of this discussion?
FOREMAN KAUFFMAN: No, I don't.
SARAH DABKOWSKI: So it started at 11 - 1 where that one person just didn't want to talk about that count anymore?
FOREMAN KAUFFMAN: I don't want to comment on that.
SARA DABKOWSKI: That's fair.What do you feel like was the sticking point about on that particular count?
FOREMAN KAUFFMAN: I don't think it was neccessarily about that particular count. It was a question of general time. One person felt that was it.
SARA DABKOWSKI: Was there anything that could be made more clear? In terms of all the other counts, where you were able to reach a decision, was there anything that I could have done to make your job more clear?
JUROR (a doctor ): I'll speak to that. But I don't want to be recorded. (end of clip)
AUDIOCLIP#2: 16 min and 5 sec
.....was the dog, was that part of it? (yeah)
JURY FOREMAN KAUFMAN: I would like to partly disagree with that. Speaking for myself anyway, I didn't feel that I necessarily had the time I needed to fully hear everyone to decide whether or not I was absolutely convinced one-way or another regarding Mr. Anderson.
SARA DABKOWSKI: Yeah.
ED FREY: Are any or you or are all of you convinced you don't have any ownership of this property?
(DA Bob Lee walks through and Becky asks him again if he's now going to have all homeless people arrested and convicted. Lee continues walking without comment.)
K: I do have an opinion about that. We live in a representational government and we elect officials, and they don't obviously do what we want to do, but we do elect them. but that is the way our government is run. It's my belief that...
ED FREY: Actually, the corporations elect our public officials with their campaign contributions.
K: Fair enough.
ED FREY: The corporations are in charge.
K: I'm not going to disagree with that. But we do elect those people, and this is, whether you like it or not, how our government is run and how our laws are run and until you change the laws unfortunately....
ED FREY: What do elections have to do with ownership of the property?
K: Well the people of California...I'm not 100% sure of this, but based on your testimony, I'll believe that the people of California own these grounds. If that's true then the representatives that are elected by the people of California are the people who are in control of these grounds. Obviously every single one of us isn't able to have the same day-to-day...uhm...what am I trying to say? We can't do every single job there is to do in the State of California, all of us standing here. We elect someone to be a judge. We've elected someone to do all kinds of different jobs. We elect those people. So we've elected someone to take control of the grounds.
If we don't like the way they are controlling the grounds, we should elect someone else to change the laws. Unfortunately, that person has been elected to do that, whether you disagree with it or not.
BECKY: Were you concerned that 647 (e) had never been enforced before in this county before August 6th?
K: Yeah. Yeah sure. But I don't see how that could affect how I decided in the case.
BECKY: Isn't is possible that this ordinance was just picked to get everybody off the steps and away from City Hall?
K: Absolutely. I think that's possible.
BECKY: And were you also concerned that even after they left the steps and they left the courthouse, that they would still be in violation of 647 (e) unless they stayed awake all night?
K: Yes. I agree. It's possible.
BECKY: Do you think the repercussions now, as a consequence of your verdict be that the sheriff's will now begin enforcing 647 (e) all over the County against any person who appears to be homeless?
K: Perhaps. And if they do, and people in the County feel it's wrong then they should change the law--WE should change the law.
BECKY: Were you aware that at the time the law was enforced, the sheriffs were unaware of this law even as it was being enforced?
K: Excuse me? Sorry, can you repeat that?
BECKY: The testimony of all the police officers was that they had really no information about enforcement of this law before August 6th. That they'd never used it before, they didn't have any particular experience with it. They just started using it August 6th for this protest
K: My understanding was that when they enforced the law they were aware of the law. Maybe not very far beforehand. But when they enforced it, they were aware of it.
BECKY: And were you concerned that the definition of "lodging" was something that just popped out of the judge's mouth and was not contained in the law?
K: Well, I'm glad that the definition of "lodging" did pop out of the judge's mouth because otherwise we would have had no way of knowing what "lodging" was one way or another, other than, I suppose, our own general sense.
BECKY: So how were defendants who....
ED FREY: So how is a person who is actually engaged in this activity, how is that person supposed to know what lodging is? If you don't know what it is, (ED points at jurors) and you don't know what it means, and he doesn't know what it means, and she doesn't know what it means, then how is the defendant supposed to know what it is?
(interruption by DA DABKOWSKI)
K: right. And we were specifically told that ignorance of the law does not in any way change whether or not you violate it. ...Sorry. We were told that.
FEMALE JUROR: We have to follow the law. We were told that. It's not as if we had a choice.
ED FREY: So the emergency or the word "emergency" was troublesome?
K: Yeah there were some of us who in general believe homelessness itself constitutes an emergency. It was hard for us to come to a conclusion on this. We had trouble coming to a general conclusion on this. For some people an emergency is when you have to call an ambulance, someone is dying right now. Right now. Now vs. a longterm issue like homelessness, sure, it was a tough point for us.
ED FREY: How long should a homeless person have to stay awake, since there is not one square inch in the State of California, where a person can go to sleep legally if he doesn't have a property right somewhere, How long does a person have to stay awake before you're going to excuse him from this cruel law"
DA DABKOWSKI INTERRUPTS AGAIN: "You know I don't think the juror should have to answer..."
K: No. I want to.
DA DABKOWSKI: Well if they want to they can.
JURY FOREMAN KAUFMAN: I think you should be able to sleep anywhere. I do. I don't have a problem with it. I personally think I should be able to go outside right now and sleep if I wanted to, and so should you and you and you. And I should be able to do it at 4AM in the morning if I want to. As long as I'm not causing any trouble, that's my personal opinion.
5:52
And so I think to enforce a law which was maybe... slanted a little bit one way or another in order to do this one thing. get what they wanted they chose to enforce a law because they wanted to get the people out of there. Was that right? You know (makes a hand gesture indicating indecision)--ehhhn--I don't know. But was it a law that was enforceable by those methods? Yes, it was there on the books. Yes. It was there. It was used.
ED FREY: Isn't that like a good German soldier? Just following orders?
K: Well the difference is, no one has died. And to equate this to the holocaust is, a little...I think the insinuation is a little too strong I think (laughs) . To compare this to Nazi Germany is....
BECKY: Would you have been persuaded if you knew the homeless death toll, last year 32 deaths in the City of Santa Cruz alone?
K: That's awful. That's awful.
BECKY: And couldn't the Sleeping Ban have...?
ED FREY: And the reason for it is people are willing to kick the homeless in the teeth when they are down.
K: That's awful. That's horrible.
ED FREY: They continue to prosecute them, to send them to jail, just because they are homeless.
K: We should change the laws.
ED FREY: I tried. I tried with this judge. With a full motion with this judge based on the Constitution and he rejected it. Back in January. Even though the Constitution gives the right to freedom, to the pursuit of happiness under the US Constitution, and the right to freedom and the pursuit of happiness, under the California State Constitution, the right to pursue safety. The right to pursue privacy. He still rejected it. And even under the 9th amendment to the US Constitution that says that all rights are retained by the people. He rejected all of these arguments.
K: You have my full support in trying to change laws which are unjust.
(GAP)
7:47 into clip
DA DABKOWSKI-- (re: jury instructions) "with the lodging we thought it helpful to give a definition."
8:24 FOREMAN KAUFMAN: "If we had not been given that instruction....you're right, "to lodge" is very vague"
FEMALE JUROR: For me a factor that weighed very large is that they had been warned that they were, indeed, lodging. If they had not been warned, then that would again be different.
ED FREY: Did any of you hear the potential juror mention jury nullification before the trial during the jury picking? Does anyone know what jury nullification is?
(General "no's")
BECKY: So you didn't think that as a juror you had the right to judge the law or perhaps in this application it was politically motivated?
MALE JUROR: It doesn't matter what the motivation was. The defendants were charged with lodging. That being political and protesting...well...it didn't mean much.
ED FREY: What did you think that an emergency existed socially and that we needed to protest that social emergency, that political emergency? Do you have any ideas about that?
FEMALE JUROR: Probably our hardest point. I think that some people who were even staunchly on the other side felt some ambiguity in that issue. Some people. SOME people definitely didn't. It depends on how narrowly you want to define it. ( 8:51 INTO CLIP) Like an emergency being immediately life threatening like a person chasing you with a knife emergency, or a societal emergency --they are so far apart that it that it's almost impossible for a jury to define or to really know exactly what that is.
(MISSING TEXT)
(9:29 into clip)
FEMALE JUROR: There were a lot of other criteria to the necessity defense that others didn't necessarily meet.
ED FREY: So what were the other criteria that we didn't meet?
FEMALE JUROR: Ohhh, here we go! I was afraid you'd ask that. Can anyone else here help me out? (general laughing).
at 10:05
K: Since "lodging" was defined by the judge, that made it pretty clear and we all agreed on the question of who controlled the premises.
DA DABKOWSKI: In terms of the officers, do you think it would have been helpful to provide more information, what each person was doing,
K: personally I found it pretty crappy that it was clear that they were citing people as soon as they fell asleep. That was the one thing they were really going after. I knew they were doing that just so they could have without question, in-the-bag as far as what lodging was but...I think Mr. Frey laid out a pretty good defense that it was unfair and basically what you were doing, was citing people for being asleep.
ED FREY: Thank-you.
(GAP)
FEMALE JUROR: I wasn't one of those people.
(GAP)
contributing to the emergency was one of them
(GAP)
BECKY: Do you think a reasonable person might fall asleep at night?
FEMALE JUROR: Well, that's a silly question. Of course everyone needs to sleep at night.
BECKY: Well the officer's testimony. I believe it was about Gary Johnson. He said that Johnson had just been released 6 days earlier for the crime or the conduct. And there he was, six days later engaging in the same conduct as before, which was sleeping. Didn't it cross your mind that normal people sleep twice within six days.
FEMALE JUROR: Well of course people sleep each night.
BECKY: So where was Gary Johnson supposed to go to sleep legally that night?
FEMALE JUROR: Where had he slept before dozens if not hundreds of other nights?
BECKY: Hiding in bushes...
GALLAGHER'S BAILIFF: (INTERRUPTING) Anyone who wants to can leave. I don't mean to interrupt...
BECKY: You just interrupted.
GALLAGHER'S BAILIFF: ...no one has to stay here.
BECKY: Where could Gary Johnson go that night where he wouldn't be ...
DISSENTING FEMALE JUROR: Excuse me. I just wanted to say, if there were more instructions around being able to make decisions based on a political decision...if we had been given those instructions, that would have impacted our deliberations greatly.
ED FREY: If you were given more instructions on civil disobedience?
(GAP)
13:16
BECKY: Were you influenced at all by the Judge announcing at the beginning of the jury selection that this group of people who were camping on the courthouse steps last summer as (GAP)
FEMALE JUROR: I felt that both sides agreed on that. You and both the prosecution agreed that people were up there...what she's trying to say...that wasn't in dispute
JURY FOREMAN KAUFMAN: That you and the prosecution pretty much agreed you were camping.
FEMALE JUROR: it didn't seem like it was something the prosecution was saying that you were arguing against.
You felt that the defendants arrived pretty much announced that they were camping and guilty of 647 (e)
you were greatly constricted
we were greatly influenced in our verdict based on all of the instructions
it had some influence, definitely.
without any def
on public property
the law specifically stated it included public property and so we didn't have any wiggle room.
whether it was public
Audiotape # 3 at about 8:54
(SKIPPED TEXT)
JURY FOREMAN MR. KAUFMAN: I do have a question and maybe you might know something about. If you have a juror who is somewhat belligerent. Didn't want to continue to deliberate--thought it was a waste of their time--After we got through most of the counts, we had one juror who was completely belligerent, who refused to continue with deliberations, who thought it was a waste of their time, how...is there anything a jury can do?
DA DABKOWSKI: Well I think, potentially, that you could go to the judge with that issue. There is juror misconduct if a person does not attempt at least to deliberate appropriately. There is a process where if they are refusing to deliberate at all, and they are not following the rules, then potentially there could be an investigation. Generally the courts try to stay out of the jury room as much as possible....I've never actually had it come up....but I think that there's a process where you go to the court. I don't know for sure.
FEMALE JUROR: We didn't want it to end in a mistrial or completely nullify all of our efforts so far. But it was completely impossible!" (laughs)
ED FREY: Can I ask, in your opinion was that one person who was hostile to the whole process, did that person just cave in because he or she just wanted to get out of here?
FEMALE JUROR: No. He was on the side most of us were on, He was leaning towards guilty.
He was screaming at her...it was so awful...
DA DABKOWSKI: It's okay to let the bailiff know.
FEMALE JUROR: It was really awful.
DA DABKOWSKI: I'm really sorry to hear that. Well obviously, you don't want to have a bad experience and not want to be a juror in the future so I'm really sorry to hear that.
This one person, I thought that during the selection of the jury...he made a lot of statements
you're talking about a doctor He's a neurologist Santa Cruz Medical Foundation
everyone else was having reasonable dialogue but we were taken away. He snapped.
JURY FOREMAN MR. KAUFMAN: For most of the time, I'd say 75% of the process he was mostly quiet, or made a few statements here or there but there were a few times where he crossed the line. He was not professional. We talked about that. But basically he announced he was not going to be professional, and that it was a waste of his time, "My time has been wasted all day. I'm done wasting my time."
on the 13 countes you were able to read\\
we saved the stuff that was harder for hte end and he wasn't willilng to hear it.
10:40
DA DABKOWSKI I didn't think
he's a doctor? A neurologist.
Generally he'll ask the judge.
Everybody else was having reasonable dialogue. I mean, we were chipping away at it.
was it immediately or later on?
It was immediately. But he snapped after lunch.
Sleepcriminal Gary Johnson holds in custody hearing, before Judge John Gallagher challenging PC 647 (e), the Statewide anti-lodging law, and acting on his right to protest against Sleeping Bans
by Robert Norse