Jailing Attorney Ed Frey is an Outrage!

Attorney Ed Frey retrieves the Peace Flag from deputies and returns it to Peace Camp 2010 while protester, Vamp, stands by July 13, 2010.   Photo by Becky Johnson

 by Becky Johnson

August 5 2012


Santa Cruz, Ca. -- Respected local Civil Rights Attorney Ed Frey, has been ordered to report to the Santa Cruz County Jail on Wednesday morning of August 8th at 9AM. He is scheduled to begin serving the remainder of his six month sentence for "lodging" which is a highly-suspect section of the statewide disorderly conduct code. For instance, "lodging" is not defined anywhere in the code section, so law enforcement (and local DA's and Judges) can interpret what constitutes illegal "lodging" anyway they wish. And since it is a misdemeanor, a violation can result in immediate arrest. Activists consider it an end-run around loitering laws which have largely been declared unconstitutional.

Testimony by several sheriff's deputies at Ed Frey's trial cited observing defendants "sleeping" with no other index of criminal activity reported. During the 92 day protest, not a single littering ticket was issued. Ed Frey provided a porto-potty every night as he and hundreds of housed and homeless people alike slept in civil disobedience of laws which criminalize sleeping.

This model of protest was copied and expanded with Occupy Santa Cruz a year later. Ed Frey served on the legal support working group and defended the encampment in court.  In each of these cases, Ed worked tirelessly, providing a powerful voice, setting a moral and ethical framework for dealing with the influx of homeless people who joined the encampment primarily to meet their own physical needs. He even took a pregnant, homeless woman to his home for several nights.

Judge John Gallagher sentenced Frey in a fit of anger he later grew to regret.  The law Ed Frey was primarily focused on opposing was MC 6.36.010 section a, a.k.a. "the Sleeping Ban" for which the maximum fine would have been 8 hours of community service. DA Sara Dabkowski sought 400 hours of community service, which constitutes a 50 fold increase in sentencing. When Ed Frey refused to serve 400 hours of community service, Gallagher angrily sentenced him to the maximum sentence he could issue: 6 months in jail for a 1st offense.

Frey asked to be released on bail pending appeal, only to have Gallagher set bail at $50,000!
Frey served 14 days in jail before being set free at a hearing before a much calmer Judge Gallagher who set bail at $110 which was, apparently, the bail amount for that charge normally.

Frey's only real chance at appeal took place before appeals court panel, Judge Paul Marigonda and Judge Timothy Volkmann. Marigonda claimed the 6 month sentence was not excessive since he, as a prosecutor, had commonly sent defendants to jail for the maximum sentence when THEY refused community service.  Of course his defendants were involved in domestic violence cases, while Ed Frey was engaged in 1st amendment activities which victimized no one.

The bottom line is it is a CRAZY use of police, court, and jail resources to arrest people for SLEEPING. Be it protestors at a protest or homeless people who can't afford a roof over their heads. It is wrong. Mean. Cruel. Counter-productive. Selective. It is a human rights abuse done under color of law. And NO ONE who is convicted for sleeping will ever refrain from future sleeping. Sleeping is not a voluntary act.  Every living thing must sleep in order to live. Enforcing a sleeping ban is torturous and causes sickness, mental illness, depression, fatigue, poor immune function and yes, death.  The sleeping ban causes death.

Under these circumstances HOW CAN THEY SLEEP AT NIGHT? 

How can DA Bob Lee, County CAO Susan Mauriello, County Counsel Dana McRae, Sheriff Phil Wowack and Judges Gallagher, Connolly, Marigonda, and Commissioner Baskett sleep at night knowing they are the chief conspirators to foment this policy of persecution and judgement.

Attorney Ed Frey made a mockery of our local justice system so that Gallagher had to make up language to feed to his hand-picked jurors in order to get a conviction.  Gallagher even used language cribbed from the 1851 Indiana State Constitution which stated  "No Negro or Mulatto shall come into, or settle in, the State, after the adoption of this Constitution," when he defined "lodging" as "settling in or living in a place which may include sleeping" as HIS definition of what constituted illegal behavior statewide.

Please attend a protest beginning August 7th at 6PM to oppose the Jailing of Ed Frey. Assert our rights to seek redress of government grievances, our right to peaceably assemble, and our right to be free from cruel and unusual punishment or excessive fines.

Six Months in jail for SLEEPING? Is this America?

URGENT!  Attorney Ed Frey and his client, Gary Johnson, both convicted under PC 647 (e),  the anti-homeless statewide anti-lodging statute for sleeping at a protest against Sleeping Bans, face a certain six months in jail apiece as Frey exhausts his appeal process. Legal, moral, and political support is badly needed. Frey and Johnson could be jailed as soon as Tuesday, July 24th, 2012 when they go before Judge John Gallagher at 8:30AM in Dept. 2

 A homeless man sleeps on the benches outside of the Santa Cruz
Main Library as part of Peace Camp 2010 when protesters had
been driven away from City Hall across the street. These benches
have since been removed by public officials.  Photo by Becky Johnson

by Becky Johnson
July 20, 2012

Santa Cruz, Ca. -- When Ed Frey envisioned Peace Camp 2010, he was sure of his cause. Sleeping itself is a criminal act within the City of Santa Cruz. It is illegal under MC 6.36.010 section a, to sleep anywhere out of doors or in a vehicle between 11PM and 8:30AM, with few exceptions. And while the City of Santa Cruz does pay for a sizable percentage of services offered to homeless people (some Cities provide nothing), the number of persons enumerated by each census far outnumber the number of spaces of legal shelter available.

But for reasons largely unexplained (thought to be a squabble between City police and County sheriffs) neither Ed, nor protesters Gary Johnson, Eliot Anderson, teepee visionary Robert "Blind Bear" Facer,  "Anonymous" Commander X, Collette Connolly, the former Chair of the Commission for Prevention of Violence Against Women, Linda Lemaster, radio host Robert Norse, and Art Bishoff were charged with the City's Sleeping Ban. Instead, County Counsel Dana McRae  advised sheriff's to charge misdemeanor PC 647 (e), as a disturbing the peace charge.

Linda Lemaster in front of the Santa Cruz County Courthouse 2010

Photo by Becky Johnson

A jury trial was held for five defendants including Ed Frey who served as both the defense attorney for his fellow defendants and as his own defense. All, except Anderson were convicted. In Anderson's case, the jury hung 11 - 1 for conviction. One juror didn't think Anderson should be compelled to gas his dog in order to sleep in a shelter for one night. The remaining jurors did.

At a sentencing hearing for Gary Johnson and Ed Frey, Judge John Gallagher sentenced both men to 6 months in jail following their refusal to accept 400 hour of community service. In addition, when Johnson asked Gallagher how he could "obey all laws" since illegal lodging is illegal 24/7 and he was homeless, the Judge told him he "could sleep in jail" and ordered him jailed immediately.

When Frey asked for bail in order to file an appeal, Gallagher set bail at $50,000 apiece. Both men went to jail for several weeks. Frey was able to modify the bail to $110 each ( the bail schedule for PC 647 (e) charges) , both men were able to bail out.

Just as Johnson had warned, he was again cited four times for illegal "lodging" and jailed for another 85 days. Now both men, having exhausted their immediate appeal route due to lack of legal resources and inadequate funding, face being returned to jail to serve the remainder of their 6 month sentences.

Neither is accused of having trespassed, littered, or bothered anyone at all. Only sheriffs were disturbed to see protesters against the Sleeping Ban sleeping in direct defiance of the ban as part of a 1st amendment protected protest, and at a traditional public forum. And what was the behavior they testified to as requiring immediate arrest for disturbing the peace? Sleeping at 4:30AM. In fact, sheriff's testified they had to awaken the sleeping protesters! And six months in jail for sleeping has got to be excessive punishment.

And if an attorney and activist can be jailed for sleeping, how are homeless people treated who have limited legal shelter options?  Thanks to Ed and Gary, we now have a clue.

Those with legal resources, financial or political support, should contact ED FREY here.

Jury Trial date set for Linda Lemaster October 15th

 A depiction of the outrage of the Sleeping Ban as depicted by a local homeless artist.

Trial date set in case of Santa Cruz Peace Camp protester Linda Ellen Lemaster

By ROMAIN FONSEGRIVES - Santa Cruz Sentinel

First published:   07/06/2012 08:09:28 PM PDT

Found online here.

SANTA CRUZ - A trial date of Oct. 15 was set Friday for Linda Ellen Lemaster, a community activist involved in a controversial homeless protest in 2010 on the steps of Santa Cruz County Superior Court and City Hall.

Lemaster, a homeless activist and projects facilitator for the Santa Cruz group Housing Now!, is charged with illegal lodging for her participation in the demonstration. The protest, called "Operation Peace Camp 2010," gathered activists opposing parts Santa Cruz's camping ban.
 
The occupation comprised a group of more than 50 people who slept and held signs on the courthouse steps. It lasted three months, before deputies began warning, ticketing and arresting protesters under a criminal misdemeanor law for unlawful lodging.


  Attorney Ed Frey, Robert "Blind Bear" Facer, and Linda Lemaster confer at City Hall
during Peace Camp 2010, a protest against Sleeping Bans. Photo by Becky Johnson


Lemaster appeared in court with friends Friday. Her attorney Jonathan Gettleman said he filed a writ of habeas corpus with the 6th District Court of Appeals in San Jose. The 53-page writ requests the court to hear and dismiss Lemaster's case, linking it to the protection of freedom of speech under the First Amendment.

"This matter is very serious as far as we're concerned," Gettleman said. "This case could really injure people's ability to engage in protests."

Gettleman said the illegal lodging law was misused to put an end to the protest and violated the constitutional right of people to assemble peacefully and to petition the government for a redress of grievances.

Gettleman said he not only hopes to clear Lemaster, but also to make the illegal lodging law unconstitutional. The federal court should decide whether to hear the case in the next few months, before the beginning of the Santa Cruz trial in October.

In a previous case related to the protest, two other activists, Ed Frey and Gary Johnson, were sentenced to six months in County Jail last October.

Judges affirm that sleeping at any time or place is illegal

 Attorney Ed Frey is arrested for sleeping on August 7, 2010 as part of Peace Camp 2010

protest against sleeping bans. Photo by Bradley Stuart

 

Santa Cruz Superior Court Appeals Panel

affirms 6-month sentence for Sleeping

by Becky Johnson

June 17, 2012
(updated June 29th)

Santa Cruz, Ca. -- A two-judge panel has affirmed the conviction of Ed Frey and Gary Johnson for sleeping.  The law, PC 647 (e), the statewide anti-lodging law, outlaws illegal lodging. But it was clear from evidence introduced at trial, statements by Judge John Gallagher, and finally statements by the two appeals Judges, Paul Marigona and Timothy Volkmann, that "sleeping" equals "lodging" for "the people."

The judgement upholds the conviction for the two men, and Gallagher's draconian sentence of 6 months in jail for sleeping for each man. Unmentioned at the appeals hearing was that Gallagher had also set bail at $50,000 each, a bail that was later modified to $110, which was the bail schedule all along for this "crime."

Of course the "crime" in the case of PC 647 (e) violations is to use the extremely broad activity of "lodging" as an arrestable crime against homeless people who have no other choice than to live in public places, and against protestors, in this case, set against the backdrop of Occupy Santa Cruz.

A homeless man sleeps as part of Peace Camp 2010, in front of the Santa Cruz County Courthouse
on July 12, 2010  photo by Becky Johnson

Appeals Court Judge, Paul Marigonda began in support of denying the appeal by claiming the defendants were claiming "a right to sleep anywhere." He claimed that neither County law nor the 9th Amendment to the Federal Constitution did not provide "any such right. That government provide any such place to sleep, is not there either."

Marigonda then referenced three sources. He said that "lodging can be setting up in a place with the intention of spending the night," language which he cribbed from section "c" of the Santa Cruz City Ordinance 6.36.010 Camping prohibited.

"It can be to occupy a place temporarily," which Marigonda got from a regular dictionary.
"It can be to settle in or live in a place temporarily, that may include sleeping," which is the definition Judge John Gallagher cobbled together to give to the jury that convicted Frey and Johnson in May of 2011. He asserted that "time, place and manner restrictions" were "entirely reasonable."

Marigonda then addressed the six month sentence handed down to the two men. "It's not unusual when the two men involved refused to accept the terms of the probation."  Frey and Johnson had turned down 400 hours of community service and a 3-year probation including 'obey all laws'.

A homeless kitten explores at Peace Camp 2010

Photo by Chris Doyon

Johnson, who is homeless, had objected to the 'obey all laws' clause saying that he "needed to sleep" and that he couldn't go three years without sleeping. Gallagher had resolved that by jailing Johnson on the spot telling him he "could sleep in jail." Frey had called the 400 hours of community service "slavery." Considering that DA Sara Dabkowski had sought 50 times what a conviction for MC 6.36.010 section a, also known as "the sleeping ban," the law they were there sleeping in direct violation as an act of civil disobedience.

Ed Frey, who was both a defendant and the defense attorney, began by correcting Marigonda.

"We weren't attempting to say we had a right to sleep anywhere, we say we have a right to sleep somewhere.  We're asking the Superior Court to acknowledge that sleeping is a valid form of expression. We're all physical embodiments. Will we say to anyone who doesn't have any property rights or access to a physical abode, that you don't have a right to live?

Judge Timothy Volkmann assured Frey he had read Ed's brief "four times." "While sleeping is expressive conduct, it is subject to time, place and manner restrictions."
"The statute itself says you can't lodge anywhere in the State. And not at any time in a 24 hour day. And the California State Constitution doesn't allow cruel or unusual punishment. Has anyone else you know been sentenced to six months in jail for sleeping?"

"You didn't take advantage of your probation offer," responded Volkmann.

Marigonda, referencing his experience as "10 years as a prosecutor in domestic violence felony cases" he said it was a common practice to charge the maximum sentence for defendants who refused probation terms. "And it could be just a touch."

Frey countered, "We generally sentence based on harm to a victim. How did Gary and I harm anyone by sleeping in front of the courthouse when all the workers were home in bed?"

Marigonda: "Judgement of lower court is affirmed in its entirety."

But Frey and Johnson were not immediately jailed to complete their 6-month terms for sleeping.
Frey sought permission from the court to certify the case for further appeal, which the court granted. However, on Friday, June 29th, the court turned him down. So now he is preparing a writ of Habeas Corpus to appeal to the Supreme Court of the State of California.

Does Santa Cruz jail people for sleeping?

 
 At a January hearing in 2011, Ed Frey checks in with
expert witness, Dr. Paul Lee, as supporters Robert Norse
and Gail Page look on. Photo by Becky Johnson


by Becky Johnson
June 14, 2012

Santa Cruz, Ca. -- While my title may seem absurd, it is clear that the answer is "yes."  Both Gary Johnson, a homeless man, and his attorney, Ed Frey, slept outside the courthouse as part of Peace Camp 2010, to protest laws which criminalize the act of sleeping.  When County Counsel Dana McRae advised Sheriff's that they could cite protestors with 647 (e), the statewide anti-lodging law, sheriff's began to advise protestors that "illegal lodging would not be tolerated."

The misdemeanor law can involve immediate arrest for the act of "lodging," even though the legal meaning of that term is not defined within the law.

Because of this over-charging ( an infraction sleeping ban ticket would only have resulted in a maximum of 8 hours of community service, if found guilty) the very first ever jury trial on a sleeping ban was held before Judge John Gallagher last May.  Frey and Johnson were found guilty of sleeping.

To show his extreme displeasure with the whole process, Gallagher sentenced both Johnson and Frey to 6 months in jail for the "crime" of lodging, which court testimony said was sleeping. When Frey asked to be released on bail to appeal his conviction, Gallagher set bail at $50,000 each.  Both were handcuffed and jailed right as the hearing ended.

At a later hearing, Gallagher modified the bail to $110, which was, apparently, the bail schedule all along for 647 (e) violations.  Today, in Dept 5, a three-judge panel will hear Frey's appeal.  If the conviction is upheld, Frey and Johnson may be remanded to jail to finish serving their six-month sentences.

Does Santa Cruz REALLY put people in jail for sleeping?  You bet they do.

In memorium: Robert "Blindbear" Facer, Teepee visionary, Sleeping Ban opponent

 Personal reflections on Robert "Blind Bear" Facer by Becky Johnson

April 16, 2012

 Robert "Blindbear" Facer Jan 2010 photo by Becky Johnson

Santa Cruz, Ca. -- Amish minister, traveler, and Sleeping Ban opponent, Robert "Blindbear" Facer passed today after a brief hospitalization in Monterey.  Facer was 58 years old.  I met Robert Facer a few years ago and he immediately impressed me as being a unique character on the streets of Santa Cruz.  While he did enjoy the herb of choice, he never drank alcohol, and was always clear-headed and purposeful.

I never saw him when he wasn't barefoot with a raggedy hat with a feather stuck in it.  As an Amish minister, he refused to use modern transportation and would have to plan days in advance to visit Capitola or elsewhere.  He told us he came to Santa Cruz by coming down the coast in a canoe he'd made by hand.  He constantly ran into problems with law enforcement as he continued to attempt to build an Amish temple on the flood plane of the San Lorenzo River out of driftwood, and other natural materials.  He came to HUFF meetings, and patiently waited his turn for his item to come up on our agenda. It was always the same item: a teepee.

 Robert "Blindbear" Facer's teepee springs up at the start of Occupy Santa Cruz in October 2011. Photo by Donna Deiss

While HUFF officially endorsed his mission to build a teepee in Santa Cruz, we had little hope it would spring into being for longer than a few hours at best.  But when Occupy Santa Cruz moved its encampment to the northern end of the benchlands along the San Lorenzo River, Robert Facer, along with helpers Gail Page and his attorney, Ed Frey  got consensus from OSC to build an "art project" and within hours, the full size teepee was erected.

Robert Facer himself painted a red cross on the teepee, which to most indicated a medical tent.  I'm not sure that's what HE meant.  He then allowed others to decorate the exterior, with one restriction: no words.  I expected Robert, a homeless man, to move in and take residence in the teepee, but he never did.

It became a shelter for those who arrived who had nothing at all. It was cool, even in the hot sun as it provided shade but adequate ventilation. And it was easily closed to keep it fairly warm and comfortable after dark.  Facer used 22 bamboo poles and covered the exterior with a lightweight plastic covering used by growers for greenhouse operations. The end came when police crushed the encampment on December 8th 2011 and police trashed the teepee and Zach Friend announced in the press they had removed "8 tons of garbage."

Officer Inouye issues a $425 citation to Facer who didn't sing a word. photo by Becky Johnson

I have very few photos of him, despite his obvious photographic appeal. As an Amish man, he believed that allowing his photograph to be taken was wrong.  He asked me to not photograph him, so, that every time I DID photograph him, I was filled with guilt.  Now each photo is precious.

Facer was involved in two court cases that I am familiar with. First, Attorney Ed Frey took his sleeping ban ticket to court, and once convicted for sleeping out of doors while keeping an eye on his canoe, Frey took Facer's case on appeal.  In part, Ed Frey started his Peace Camp 2010 because the court had inexplicably postponed Facer's appeal for five months.  Facer later lost the appeal because the court ruled he could have gone to a shelter, and therefore had no right to sleep in a public place.

Facer was also convicted for unreasonably disturbing noise when he very lightly played a small drum and didn't sing a word.  The Song Crime Massacre of 2010 had police citing 4 people, two who sang a few songs in the middle of the afternoon in the Free Speech Zone in front of Bookshop Santa Cruz. One woman who came down to see what the commotion was about, and Robert "Blindbear" Facer.

The photo I have is from when he was issued a $425 citation for not singing a word.  He was later convicted by Commission Kim Baskett for "conspiring" to disturb workers inside BSSC, a "crime" Baskett invented since there was no testimony given to support this claim.

I last got an e-mail from Robert Facer saying he was in Monterrey. He must have walked or canoed there. As an Amish person, Facer didn't believe in modern transportation. Ironically, he told us he can use cellphones and the internet. He always made us wonder.  This morning, Ronee Curry posted the sad message that Robert has passed. Our community is lessened by his loss, less colorful, less thoughtful, and has one less warrior fighting for justice.

God Bless you, Robert Facer, and goodbye, my friend. And thanks to you for your visionary Teepee, your message of compassion for each human being, and all of the wisdom you brought to us.

Peace Camp 2010 defendant, Art Bishoff sentenced to 47 hours community service

An unknown man sleeps at the Santa Cruz County Courthouse as part of Peace Camp 2010 on August 29, 2010. Photo by Becky Johnson

by Becky Johnson
July 29, 2011

Santa Cruz, Ca. -- Art Bishoff is doing better these days. Last summer, he was homeless and jobless and sleeping on the streets. Today he is housed (barely) and works 70 -80 hours a week at minimum wage. Last summer he was arrested as part of Peace Camp 2010 to protest Sleeping Bans. Today, he appeared before Judge John Gallagher to be sentenced for "illegal lodging," a misdemeanor offense.

Now two other defendants, Gary Johnson and Ed Frey, had been sentenced on June 10th to 6 months in jail and $50,000 bail when they refused 400 hours of community service and 3 years of probation for Sleeping as part of a protest against Sleeping bans. Both Johnson and Frey are currently out on bail pending appeal when Gallagher reconsidered bail and reduced it to $110. Apparently that was the bail schedule for PC 647 (e) all along.

DA Sara Dabkowski only slightly modified her demands. She asked for 300 hours of community service and 3 years probation. Attorney, and co-defendant, Ed Frey asked for a reduction "Since Mr. Bishoff is already working 70 to 80 hours a week." Gallagher sentenced him to 30 hours of community service and a combination of fees and fines adding up to $170.

"How much do you earn each month?" Gallagher asked in order to assess whether a fee reduction was in order.

"I just earn minimum wage," he replied.

Gallagher then modified the sentence to 47 hours and cleared him of the $170 fee. He charged him with 1 year probation and ordered him to not "Sleep/camp/or lodge in front of City Hall or here in front of the courthouse."

Then Gallagher gave a little speech. To Ed Frey he said, "Your people caused hundreds of hours of law enforcement dollars to be spent and others were impacted by having to view the scene. I don't need to hear any more evidence since I witnessed days and days of trial and testimony." To Mr. Bishoff he said, "I'm sentencing you differentially, Mr. Bishoff, because you were one of the few people in this protest who were not homeless-by-choice."

He praised Art's success in getting both housing and employment, seeming to show that those who violate PC 647 (e) and then somehow justify their lives after the fact to Gallagher are rewarded with a vastly reduced sentence. Gallagher also seemed to say that those who remain homeless are their "by choice" though no evidence or testimony to that effect was even raised at trial.

And are people REALLY homeless by choice? Who would leave a nice comfy home to go live on a sidewalk? All data show that the number one cause of homelessness is lack of money. And the number one reason for lack of money is the gap between the wages paid for employment and the cost of housing. Santa Cruz County has one the highest cost of housing in the country, which is hardly a "choice" homeless people make.

Yet Gallagher used this as an opportunity to lambast those who remain unemployed in an economy with an 11.5% unemployment rate or unhoused in a very high rental market by distinguishing Arthur Bishoff from "the rest."

"Congratulations on your job and on being a working member of the community."

Ed Frey: Putting his body on the line

IN CASE YOU MISSED IT: I'm always suspicious of those who say we "want to get ourselves arrested" because I've never tried to get arrested in my life. That doesn't mean rigid adherence to petty ordinances and rules, especially so if there is no apparent victim. I seriously doubt ED ' wanted' to get arrested. But it had come to the point where civil disobedience of the law was what was called for. Indeed, when Arun Ghandi visited the Resource Center for Nonviolence years earlier, he had predicted that ONLY civil disobedience of the Sleeping Ban would change the law. And ED DID openly violate MC 6.36.010 a, of the Santa Cruz Municipal Code which outlaws sleeping at night between 11PM and 8:30AM, known as the "Sleeping Ban." Had he been found guilty of violating this ordinance, the worst punishment he would face, under law, would have been 8 hours of Community service and no jail time at all. Instead, on June 10th, ED was sentenced to 6 MONTHS in JAIL for refusing 400 hours of community service, with bail set at $50,000. Below is Curtis Cartier's interview published last August. But a few corrections are in order. Peace Camp 2010 was NOT 24/7. It was between 8PM and 8AM at the courthouse steps and at City Hall. And ED towed a porta-potty there each night and took it away during the morning. I was not convicted of "disturbing the peace (a misdemeanor)" but of "unreasonably disturbing noise(an infraction)" which you can read about HERE. Nor has Cartier even mentioned the available legal shelter in Santa Cruz serves 10% at best of those experiencing homelessness. Nor was Frey's effort in vain. --- Becky Johnson, ed

Improbable Cause

Why would a lawyer try to get himself arrested?

By Curtis Cartier

Metro Santa Cruz

August 25, 2010

Article found online here.

SEE: http://www.metrosantacruz.com/metro-santa-cruz/08.25.10/currents-1034.html

DAMN. I don't know if the cops are gonna show," says Ed Frey, looking left to right down Center Street and pulling his tattered blue sleeping bag snug. It's midnight at Peace Camp 2010 and the 70-year-old activist lawyer is on the steps of City Hall with a dozen homeless people and supporters for Day 44 of an ongoing protest against Santa Cruz's ban on camping within city limits. Perched in a fold-out chair, wearing wrinkled khaki pants and the same faded orange sweater he had on 10 days earlier when he was arrested for sleeping outside the Santa Cruz County building, Frey, who founded and organized the 24/7 protest, fits right in with his flock of rebels and malcontents.

His prospects for arrest may be disappointing, but with his finances bottoming out, he admits that avoiding jail this time may be a blessing. "I got a call today from an interested client," he says. "He really needs to be represented in court and I'd hate to have to say, 'Sorry, can't do it. I got arrested for sleeping in public and violating the camping ban. Again.'"

The fact that Frey, a bar-certified, Berkeley-educated criminal defense attorney, is at the public nexus of town in willful disobedience of the law is no surprise given his history. This is a man who brags about having sold marijuana from his law office and once nailing 18 pot plants to the front doors of the Mendocino County sheriff and district attorney. He's campaigned and lost elections for U.S. Congress and Santa Cruz County District Attorney on platforms like the abolition of all international borders and legalization of drugs. Around town, more than a few people who know him say he's crazy. Others conclude that he's just a passionate ideologue.

Santa Cruz City Attorney John Barisone, who recently squared off in court with Frey over local transient Robert Facer's camping ban citation and homeless advocate Becky Johnson's disturbing the peace violation—prevailing over Frey in both cases—goes so far as to say Frey puts his own political agenda over his client's legal needs.

"He is very argumentative, and that doesn't help him out," says Barisone. "With Facer he got in an argument with the judge, not necessarily a good tactic. He also put his client on the witness stand when he didn't need to. ... [Frey] called Facer, who basically admitted to violating the law, and I didn't even have to ask him any questions. I was able to cite his direct testimony."

In many ways Frey is just other weirdo in a city that sells weird by the bushel. But his particular brand is both organized and influential, and for the last 52 days it's been a part of every local taxpayer's life as highly paid police conduct nightly surveillance, erect gas-powered floodlights and write tickets with the knowledge that each one will likely be dragged out in court.

None of this bothers Frey, however, as he points out that homeless rights are never very popular and that "it takes someone like me" to stand up for them. "People say I'm using people to further my agenda," he says. "But it's in the public's own good!"

Shake It

Earlier in the day, Frey's phone rang with infamous homeless advocate gadfly Robert Norse on the line. Christopher Doyon, the gaunt de facto leader of the on-site activities at the protest, was quitting. Frey decided it was high time he got arrested.

"I think it has to be done," he'd said cockily. "Someone has to prove the point that it shouldn't be a crime to fall asleep. Someone needs to shake these people up."

Along with Congressman Sam Farr and Mayor Mike Rotkin, Vice-Mayor Ryan Coonerty is one of the people Frey says needs "shaking." As the sleeping ban protest was starting, he challenged Coonerty to a public debate. Coonerty says Frey was just seeking attention.

"I got a fax from him challenging me to a debate," says Coonerty. "I responded publicly that I don't think it's necessary for me to be a part of every publicity stunt in Santa Cruz. In the latest case, I think homelessness is a very serious issue and I work with social service providers and others to try and address this. I don't think that endless protesting is the right way to go about it. But he certainly has the right."

Frey, in many ways, is part of the classic fabric of Santa Cruz's old guard of radical progressives: liberal, passionate, prone to espousing conspiracy theories. His camping protest is unlikely to change the city's homeless laws and has already led to dozens of citations for a group of people with little means to pay them. With a wife of 27 years and a combined 10 children between them, his family life is strained because of his obsessive focus on homeless rights and willingness to do it free of charge. And, if he were ever actually elected to Congress, his radical policies would have little to no chance of passing.

And yet a Santa Cruz without its Ed Freys, Robert Norses and Becky Johnsons might not be the same city that residents have come to know. And Frey, at any rate, isn't going anywhere.

"My underwater yoga therapy keeps me going strong," he says. "We intend to keep on until we have the right to sleep. And I have no plans to retire. My services now seem more crucial than ever."

Read a longer version of this story online by going to www.santacruz.com and clicking on 'News.'/

Send letters to the editor here.

Ed Frey's Bail reduced from $50,000 to $110

by Becky Johnson
June 24, 2011

Santa Cruz, Ca. -- Considerably regretful, Judge John Gallagher agreed to a bail reduction pending appeal for Attorney, Ed Frey, jailed directly from court last June 10th on a 6 month sentence. "As you know, I had no choice at the time," Gallagher told Peter Leeming, Ed's attorney for his motion to reconsider sentencing.

Gallagher sounded as if he was willing to do what was legally within his means to do, which wasn't much. He does not have jurisdiction to reduce his own 6 month sentence. Only an appeal can do that. He doesn't have jurisdiction to impose probation since Ed turned down the 3 years of probation offered and no counter-offer was made.

Leeming argued that there is very little case law in this area, but he did find a few cases where extraordinary circumstances existed.

"I was very moved by the circumstances in Ed's declaration," Gallagher explained. "Let's see what we can do to get him back to care for his responsibilities to his family and his clients."

The scene was very different from June 10th, in which each side dug in, unwilling to concede any point or position. Ed declaring even after a jury conviction that he had done nothing wrong and

Ed Frey is arrested for sleeping on Aug 7, 2010 as part of a protest against the Sleeping Ban. Photo by Bradley Stuart.

was being punished "for asserting our rights."

Now, wearing green jailhouse clothes and chained at the wrists and ankles, Ed appeared calm and compliant. However, when he asked to speak, it was only to emphasize his lack of funds.


Gallagher asked DA Sara Dabkowski what bail she recommended.

"The standard bail schedule would be acceptable," she replied. Gallagher looked this up.
"The bail schedule for 647 (e) is $110," Gallagher announced. Wasn't this bail for 647 (e) last June 10th? Gallagher had issued $50,000 bail! And Ed is neither a flight risk nor has he missed any court appearances.

And why was bail for COLLETTE CONNOLLY and ARTHUR BISHOFF set at $2500? That's 23 times what the courts have set.

Also appearing in court was GARY JOHNSON, also sentenced to 6 months in jail and not qualifying for work furlough or able to claim "extraordinary circumstances." Ed Frey, chained and shackled stood when JOHNSON stood, much to the chagrin of the bailiff.

"But I'm representing MR. JOHNSON!" Ed protested. Then he said, "Your honor, I have no idea what this hearing is about."

Gallagher called City Attorney CAIO ARELLANO to the podium and told him "I asked you to appear to tell us the status of the other infraction charges against Mr. Johnson."

Arrellano asked that they be dismissed. Gary agreed and all 21 infraction citations against Gary Johnson were dismissed. However, he remains jailed on a 6 month sentence.

Outside court, a beaming Diana, Ed's wife, collected tens and twenties offered up by Ed's supporters to raise the $110 quickly. As she prepared to drive to Watsonville to bail Ed out of the Rountree Medium Security Facility where he is housed, she expressed great relief. "It's been a long two weeks."

Free Gary Johnson! Free Ed Frey!

Homeless Civil Rights Attorney Ed Frey prepares for court at City Hall while taking part of a protest against Sleeping Bans as part of Peace Camp 2010. Frey drove a porto-potty to City Hall at 8PM each night and pulled it away each morning at 8AM in order to facilitate the ability of homeless people to sleep. Peace Camp 2010, in its 3-months of existence provided over 1,000 shelter nights for homeless people who did not or could not fit inside existing shelter space. Frey was sentenced to 6 months in County Jail on June 10, 2011 by Judge John Gallagher. Photo by Shmuel Thayer of the Santa Cruz Sentinel.

by Becky Johnson
June 14, 2011

(This article has been updated on June 22, 2011) - Ed.

Santa Cruz, Ca. -- Houseless civil rights worker, Gary Johnson, and his attorney, Ed Frey, began serving a 6 month term in Santa Cruz County Jail. Gary for sleeping 4 times in a 3-month period, and Ed for having slept three times. Twice on the steps of the Santa Cruz County Courthouse, and once on the bricks at the edge of the plaza at City Hall, a stones' throw from Mayor Ryan Coonerty's office. Both slept out in violation of the Sleeping Ban which outlaws the act of sleeping within the City Limits between 11PM and 8:30AM out of doors or in a vehicle.

Of course only homeless people are every charged with "criminal" sleeping. It is not a little-enforced law, either. MC 6.36.010 a and it's twin, the "Blanket Ban," MC 6.36.010 section b, are cited about 60 times a month within the City limits by police and by Parks and Rec Rangers.

How the City expects to "teach" homeless people to not sleep at night or to not use a blanket at night is never discussed. When Gary Johnson, at his sentencing hearing told Judge John Gallagher, "I can't go three years without sleeping," Gallagher punitively sentenced him to six months in jail for sleeping four times in 90 days. "You can sleep in jail," Gallagher told him.

Had Johnson and Frey been convicted for the City's sleeping ban, they would only have faced a maximum of 8 hours of community service. DA SARA DABKOWSKI asked for fifty times that sentence when she sought 400 hours of community service.

Does Judge Gallagher and the DA Bob Lee expect to turn our county jails into homeless shelters? Indeed, they apparently already have. And those who were marginally housed at the time of jailing will become homeless as well, once they lose a job or can't make their rent. I call this Lose-Lose public policy. Prohibitively expensive homeless "shelters" plus cranking out MORE HOMELESS by the day.



UPDATE JUNE 22 2011: ED FREY called me from jail this morning. He is prisoner # 236511
Those wishing to correspond with ED in jail can write to him at: Rountree Medium Security Jail, 90 Rountree Lane, Watsonville, CA. 95076 phone: (831) 454-5112

ED tells me that his attorney, Peter Leeming, has scheduled a motion to reconsider sentencing at 8:30AM in Dept. 2 before Judge John Gallagher. Supporters are encouraged to attend.

ED says that his family is experiencing severe financial distress as the result of his jailing, and are seeking donations to prevent their own homelessness. In addition to ED's sudden jailing, his wife is helping to care for two newborn grandchildren, the youngest born while ED was in jail.

Please send donations to Ed Frey,
4630 Soquel Dr
Soquel, CA 95073
Or call Phone: 831-479-8911 and leave contact information.

Gary Johnson is also scheduled for a hearing at 8:30AM in Dept 2.

Ed reports that Santa Cruz County Jail is overcrowded, with very little floorspace in which to walk around. People sleep in "boats" which are pulled out at night and placed in common areas. He has spoken with dozens of prisoners, a great percentage are homeless or will be homeless upon release. The law library at the jail has been closed and the books he ordered for his own defense have not yet arrived.

He has since been transferred to the Rountree Facility in Watsonville which he describes as "a country club" compared to SCCJ. "We play ping-pong and watch television. There is much more room to walk around in and the staff are more relaxed."

Ed Frey has asked for legal support to file an appeal and for financial support to help his family survive their loss of the main breadwinner. He is seeking a sentence modification to time served.

Ed Frey, Gary Johnson jailed for 6 months for Sleeping

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

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

June 10, 2011
by Becky Johnson

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

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

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

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

Ed quoted the Jury Foreman who said,

JURY FOREMAN: "I do have a question and maybe you might know something about. If you have a juror who is somewhat belligerent. Didn't want to continue to deliberate--thought it was a waste of their time--After we got through most of the counts, we had one juror who was completely belligerent, who refused to continue with deliberations, who thought it was a waste of their time, how...is there anything a jury can do?"

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

ASSISTANT DISTRICT ATTORNEY SARA DABKOWSKI: Well I think, potentially, that you could go to the judge with that issue. There is juror misconduct if a person does not attempt at least to deliberate appropriately. There is a process where if they are refusing to deliberate at all, and they are not following the rules, then potentially there could be an investigation. Generally the courts try to stay out of the jury room as much as possible....I've never actually had it come up....but I think that there's a process where you go to the court. I don't know for sure.

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

FEMALE JUROR: We didn't want it to end in a mistrial or completely nullify all of our efforts so far. But it was completely impossible!" (laughs).

Finally Ed quoted the jury foreman again.

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

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

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

"Motion denied."

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

So much for the APPEARANCE of propriety!

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

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

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

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

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

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


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


JURY FOREMAN: Personally I found it pretty crappy that it was clear that they were citing people as soon as they fell asleep. That was the one thing they were really going after.

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

Yet at trial, and against the objections of the defense, Judge John Gallagher introduced his own definition of "lodging" to help the jurors reach a verdict. Gallagher told the jury that they should use this definition of lodging: "to lodge means to settle or live in a place, that may include sleeping."

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

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

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

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

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

JURY FOREMAN: Well, I'm glad that the definition of "lodging" did pop out of the judge's mouth because otherwise we would have had no way of knowing what "lodging" was one way or another, other than, I suppose, our own general sense. Since "lodging" was defined by the judge, that made it pretty clear.

AND

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

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

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

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

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

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

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

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

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

Indeed, Gallagher's language, which he claims came from a dictionary, contains suspect language. He used the term "settled in" as an indication of illegal behavior. There is legal precedent for this language. Article 13 of Indiana's 1851 Constitution stated "No Negro or Mulatto shall come into, or settle in, the State, after the adoption of this Constitution."

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

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

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

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

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

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

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

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

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

Transcript of Juror post-verdict interview May 3 2011

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

AUDIOTAPE # 1 1min and 42 seconds

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

it had some influence, definitely.
without any def

on public property

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

whether it was public

Audiotape # 3 at about 8:54

(SKIPPED TEXT)

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

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

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

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

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

on the 13 countes you were able to read\\

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

Generally he'll ask the judge.

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

was it immediately or later on?

It was immediately. But he snapped after lunch.