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After 15 months, Drum Circle Defender case resolved
by Prisoner Support
Friday Dec 4th, 2009 10:06 PM
After fifteen months of court, more than a dozen court appearances, three major motions, four rejected plea deals, two district attorneys, and nearly a thousand hours of defense work, the case against Drum Circle supporters, Wes and Jack, is finished.
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The Scene at the Farmer's Market Drum Circle

On September 17th, 2008, two protesters were arrested at the scene of the farmer's market drum circle, Jack, a cook for Food Not Bombs and Wes, a drummer with the Santa Cruz Trash Orchestra. Both Jack and Wes took part in a protest at Santa Cruz Parking Lot 4 in support of the drum circle at the Wednesday Farmer’s Market, and to oppose the fences erected by the city to preclude the drummers from their traditional spot around the trees in the parking lot near the farmer's market.

This was the second week of protests in this most recent attempt to evict the drum circle and Food Not Bombs. (The police had tried in January of that same year to evict the drummers but thanks to community support and protest, the drummers prevailed.) During that previous week of September 10th, Santa Cruz police Sergeant Michael Harms harassed protesters and drummers, photographing individuals and citing for minor violations. While no one was detained or arrested, Wes was served with five infractions, including destruction of city property, disturbing plants or grass, and trespassing in a city parking lot in a complaint sworn out by the City Attorney John Barrisone. This complaint was waiting for Wes when he was arrested the next week.

At the protest on September 17th, Wes again participated as a musician in Trash Orchestra, playing his blue drum. At this demonstration, Santa Cruz police officer Albert arrested Jack on suspicion that he removed some of the fences. Drummers and community members rallied in support of Jack, protesting his arrest loudly. Shortly, Santa Cruz police officers Albert, Cline, Huynh, and Sergeant Harms targeted Wes, who was drumming in the protest, tackling him and clubbing him with a baton. Jack was taken to County Jail. Wes was taken to the hospital for sutures from the baton blow and then later to County Jail.

The Charges against Wes and Jack

Jack was released that same night. Wes was held overnight after SCPD convinced a judge to raise his bail to 15 thousand dollars. However, he was released the next day, "pending investigation."

Jack was charged with 148(a) resisting arrest/obstructing justice. Wes was eventually charged with this and PC 243(b) battery on police officer. Both charges are misdemeanors with a maximum penalty of one year in jail and a 10 thousand dollar fine.

Fifteen Months of Court

The case took fifteen months of court, more than a dozen court appearances, three major motions, four rejected plea deals, two district attorneys, untold reams of paper, and nearly a thousand hours of defense work. In the end, Wes and Jack took a plea deal to get on with their lives.

The defense strategy was to attack the charges on multiple levels. The defense team made it clear from the outset of the case that they intended to show that Wes and Jack have shown a pattern and practice of non-violent First Amendment activity at the Santa Cruz Farmers Market, namely playing music and serving food. Second, they intended to show a bias on the part of the SCPD against them 1) as individual persons, 2) because of their political beliefs, or 3) as members of political organizations and projects. Lastly, they intended to show that the defendants simply didn't do what they were accused of, neither resisted arrest nor battered officers.

The second strategy was especially relevant since the defendants had experienced harassment on the street by Santa Cruz police. Four years earlier, Wes blew the whistle on Santa Cruz police officers infiltrating community organizing groups using false names and identities. Wes also wrote an editorial for the Santa Cruz Sentinel suggesting that in these difficult economic times that rather than cutting services, the city consider slashing the bloated police budget. SCPD officers regularly interrupted Trash Orchestra practices and performances. Shortly after it opened, officers several times attempt to enter SubRosa Anarchist Infoshop without a warrant. The first question asked by the District Attorney in this case to the defense team was “What kind of anarchist is [Wes]?” Police and court oppression against individuals and projects who are resisting the status quo (anarchist or not) is very real.

Much of the ability to demonstrate this bias, hinged on material available to the prosecution. The process of acquiring this material needed to prove the innocence of a defendant is called discovery. To some degree, the entire case was stuck in the discovery phase for more than a year. The initial request for discovery was made December 3rd, 2008, and the district attorney's office spent the last 12 months stonewalling, denying, promising, reneging, and ignoring the defendants' request for discovery. The defense team requested 54 specific items of discovery, including photos, videos, documents, notes, and planning material. In spite of the judges orders to compel discovery, the DA turned over only a handful of items. The SCPD reported that most of the requested items were destroyed, unavailable, or even after 12 months, would take more time to gather.

Other motions filed during the case were an unsuccessful defense effort to join Wes' infractions to the main case, and a successful Pitchess motion which opens up records of earlier citizen complaints against officers involved in the case. The results of the later motion are sealed by a court order, but the defense did find that one of the officers who attacked Wes was earlier accused of using excessive force.

After the judge granted the motion to compel discovery and the work required by the DA to gather this discovery mounted, the district attorney's office became interested in a possible plea deal. After fifteen months of court appearances and hundreds of hours of legal preparation, the defense team was interested in putting an end to the case as well.

The Plea Deal

The defense team rejected four plea deals, including an earlier one that included a month in jail and another recent one that would require one of the defendants to give evidence against the other. The plea deal that was accepted on December 4th, 2009 stipulated no jail time, but community service for both Jack and Wes. There was a year probation for Jack and a small fee for court fees, restitution, etc. Since Wes' charges were more serious, he got more community service and suspended sentencing on both charges for a year, with the battery charge being dropped after that if all goes well.

Final Words

On one hand, given the seriousness of the charges Jack and Wes did pretty well, certainly much better than the plea deal offered at the start of the case. On the other hand, given that neither Jack nor Wes did what they were accused of, pleading guilty to anything is no consolation at all. This is the nature of the "justice" system. If you engage in resistance against the status quo, particularly if your tactics are effective, you become a target of the police and the courts. If you are charged with anything, no matter how ludicrous, you are in for a world of hurt, the uncertainty of the future, lost work and wages, many long hours of legal preparation, numerous court appearances, and possible restrictions on your movement.

In the criminal court system, the sad fact is that, at the best possible outcome, you stand to gain nothing. Assuming you ride it out to the end, go through months, if not years, of court appearances and a jury trial, and in the end, with all the odds, police and courts stacked against you, miraculously win your case, you get precisely zero. You don't get your time and energy and money back. You only get the right to walk away -- a little bewildered perhaps, wondering what all that was for. And the best case is rare indeed since few have the resources or infinite time required to win a case -- questions of guilt or innocence notwithstanding. So, many people walk away with a plea deal, including a knock on their record, long probation, and/or possible time in jail or prison.

There are many political prisoners currently locked up by the state for doing little more than acting on their beliefs. Repression against those who resist government, police, or corporate domination is ever-present. The cops are there to maintain control by those in power. The courts and prisons are tools used by authority to take dissenters out of the streets.

In spite of this heavy-handed oppression, keep struggling and keep resisting, and use your resources on the outside to do what you can to support prisoners on the inside.