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View other events for the week of 6/ 9/2009

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 Symonds' court--the first courthouse on your left as you go through the metal detector
Event Type: Court Date
Contact NameRobert Norse
Email Addressrnorse3@hotmail. com
Phone Number831-423-4833
Address309 Cedar PMB #14B Santa Cruz 95060
BACKGROUND

In mid-May, Superior Court Judge Ariadne Symonds 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 Symonds to find me guilty, since the threat of a lawsuit is real and present.


SYMONDS--PROSECUTOR OR JUDGE?

Symonds, 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 Symonds is demanding Beauvais do), one side would have access to the response from the other side--the prosecutor's response.

But since Symonds 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 Symonds,

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.



Added to the calendar on Monday Jun 8th, 2009 2:18 PM

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Comments  (Hide Comments)

by MoJo
Monday Jun 8th, 2009 7:01 PM
Interesting.

I've read the transcript of the recording. From that it is VERY clear that Norse is not guilty. There is no basis whatsoever for the case against him.

My speculation is that if the recording/transcript is accepted as evidence that there can be nothing other than an innocent verdict, even if the judge wants to hang Norse; otherwise the verdict is unpredictable. IF (I emphasise the word 'if') the recoding were of a 'confidential conversation' and the guard did not consent to it, then that recording can not be accepted as evidence, per CA Pen 632(e).

But in any event, the charge against Norse simply doesn't apply. The charge of trespassing simply does NOT apply at the Metro. Period. Innocence. Even if the correct charge had been made there was no case.

I agree completely with Norse that the judge is definately acting like a prosecutor. Or persecutor.

I'll wait to see how things turn out, but it sounds like that judge ought to be in jail.
by MoJo
Monday Jun 8th, 2009 7:22 PM
The name of the judge appears to be "Ariadne Symons" (not "Ariadne Symonds").
by Doesn't even know her name.
Tuesday Jun 9th, 2009 9:19 AM
Nuff said.
by Bruce Holloway
Tuesday Jun 9th, 2009 4:08 PM
She paid him back for misspelling her name by saying he was disingenu-Norse and that the transcript shows he wasn't there for a bus.
by Go ahead
Tuesday Jun 9th, 2009 6:34 PM
..make my day.
by Shadow
Wednesday Jun 10th, 2009 12:14 PM
Chalk another one in the LOST column for Robert. He's not doing too well with his crusades these days.

Could it be that many people in Santa Cruz would like to see real actions and results from people who claim to be activists? Not a bunch of words and no results? I think people in Santa Cruz have finally woken up to the real point of Robert's activism. "Self Promotion".
by Robert Norse
Friday Jun 12th, 2009 9:45 PM
More on the trial at http://www.indybay.org/newsitems/2009/06/09/18601194.php .

Troll posters can be easily identified above by their attacks on advocates rather than addressing issues.

Folks interested in those issues are invited to call in to my radio show Thursday evenings 6-8 PM and Sundays 9:30 AM to 1 PM at 101.1 FM http://www.freakradio.org . Or to come to protests Saturdays 1 PM in front of Bunny's Shoes. There's plenty of real work to be done, whatever the rulings of confused or bigoted judges.
by Its singular, not plural
Saturday Jun 13th, 2009 4:38 PM
You say "advocates" in an attempt to generalize the consensus lack of support shown towards your efforts.

The reality is that the people here are not against advocates or activism in a general sense. Rather, they are against you and your tired, eg-centric tactics and efforts.

Man up and accept the reality. It's YOU people are tired of. Not the issues. Not activism. YOU and your snarky self-generated lawsuits. YOU and Huff who promote their egos more than the homeless they claim to promote.

....just you.
by Robert Norse
Monday Aug 17th, 2009 3:27 PM
Readers should be aware that none of the troll posters took up my invitation to raise issues on the radio.

Don't be diverted by those who want to make "me" the issue rather than police and security guard behavior at what is supposed to be a public facility--the city and county bus station.

The issue remains the right of private security guards and police to exclude activists and reporters from the Metro Transit Center. Those concerned about access to public spaces know how homeless people are regularly discriminated against downtown and understand the need to oppose this crap.

Hopefully I'll be posting the audio of the trial soon; we've twice had to return it to the clerk's as not usable in spite of the $20 fee.