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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.


Comments  (Hide Comments)

by Becky Johnson
Saturday Dec 5th, 2009 9:13 AM
Not to mention that other activist organizations abandon you when the State cracks down using its disprortionate ability to file charges and to use the courts to harass and punish activists.

I know this from personal experience. Robert Norse, Bernard Klitzner, and I were charged with a CIVIL restraining order by the assistant to Mayor Tim Fitzmaurice for our 17-day lobbying campaign at the Mayor's office to put the Sleeping Ban on the city council agenda for discussion.

Six months later, after having been sidelined from our anti-Sleeping Ban campaign, including being excluded from City Hall and unable to attend city council meetings or go to City offices to engage in normal citizen activities---such as making copies of incoming correspondance to the mayor on homeless issues, Judge Sam Stevens threw the TRO out as without merit.

The SENTINEL reported the court issued "a split decision" as the Judge said we could lobby OUTSIDE Tim Fitzmaurice's lobby, but could not wait in the waiting room! A rule that is not enforced against anyone except ourselves.

But during the 6 months in which we fought the civil injunction, we were abandoned by other progressive organizations around town as we had been accused of, among other things, of having stolen donated food designated for poor and homeless people!! (it wasn't true of course, but such is the power of the office of the City Attorney in it's ability to smear).

I was physically arrested and charged for chalking in the gutter along Pacific Ave.

Norse was physically arrested for making a 1.5 second fleeting hand gesture towards the Mayor at a City Council meeting when he registered his disapproval for Mayor Krohn cutting off oral communications abruptly and threatening to "remove" Susan Zeman from the meeting.



by Sum Dim III
Sunday Dec 6th, 2009 2:48 AM
Why were you chalking in the gutter, Becky? Why was Rico beating on a trash can in a parking lot? Why was Robert doing Nazi salutes at City Council?

How does any of this move us forward? How does this advance the cause?

I'm really worried that you have lost sight of what matters in life. I hope you find happiness, Becky.
by Robert Norse
Sunday Dec 6th, 2009 4:16 AM
The history of this struggle to (successfully) rescue the Drum Circle is a heartening story.

Former Mayor Ryan Coonerty's business-uber-alles Parking Lot Panic law MC 9.64 bans reading a book in your car or chatting with a friend there or gathering generally. This law was initially used to try to dislodge the weekly Wednesday afternoon Drum Circle in Parking Lot #4, next to the downtown Farmer's Market. It is essentially part of a right-wing culture war against hippies downtown.

Unfortunately the City Council cabal that put together this law (and the broader policy) is still in power and its influence is growing.

The Drum Circle tale pf resistance can be found at length on this website--check out http://www.indybay.org/newsitems/2009/04/03/18585727.php ("No More Fences at the Drum Circle"), http://www.indybay.org/newsitems/2008/12/10/18554346.php ("Drum Circle Back in Business; Daytime Copwatch/Chowdown Tomorrow"), http://www.indybay.org/newsitems/2008/10/07/18543334.php?show_comments=1#18543530 ("More Drum Circle Melodrama Wednesday? Be There at 3:30 PM to Keep Public Space Public"), and http://www.indybay.org/newsitems/2008/12/05/18553732.php ("Threatened with a ticket, I continued playing at the drum circle"). Among many other stories (just search for "Drum Circle" on this website).

For the provocation and false arrest(s) of Wes and Jack, go to http://www.indybay.org/newsitems/2008/09/17/18539316.php ("Drummers Arrested at Wednesday Farmers Market")
by Robert Norse
Sunday Dec 6th, 2009 4:27 AM
DrumCircle Dave and the SidewalkShadow both report the appearance of a lone squad car and police officer at the Wednesday Drum Circle 12-2. The officer apparently directed folks to leave, but was ignored. They explained to the nubie cop that far from "trespassing" in the parking lot or idly "loitering", they were waiting for the Drum Circle to begin. \

Afterwards SidewalkShadow wondered if it was a hazing that the older hands at the SCPD were putting the new officer through. DrumCircle Dave was pleased that the people using their public space stood their ground and were able to deter unconstitutional behavior by the armed intruder.

Whether this constitutes an isolated incident or a trend can only be judged by what happens next Wednesday.

Hmm, perhaps those waiting can say they are in the process of intending to meet someone who will be bringing a vehicle that they will help park or retrieve? Or perhaps they can refer harassing officers to the U.S. Constitution--1st Amendment--right to assemble.

Ah, yes, Coonerty's DTA priorities overrule the rights of the public to use the public spaces they pay for. Perhaps Mayor Rotkin, who's also on the Board of Directors of the ACLU (and gave a stirring speech at today's Human Rights Faire) can explain this for us.

Full disclosure: Rotkin only voted to ban assembly in parking garages and parking lot #9 (the lot across from what was a regular homeless meal at the Elm St. Church). Still, as Mayor, shouldn't he resign from the ACLU if he's going to be enforcing laws that violate everyone's civil liberties. Wait--I forgot--the local ACLU isn't concerned with local civil liberties--just fund-raising to fight for national civil liberties.

Show up Wednesday to keep an eye on the latest SCPD capers. As the weather gets colder, will the SCPD use Coonerty's Parking Lot Panic law to drive homeless people out of parking garages where they shelter against the wind, cold, and rain?
by dogspot
Sunday Dec 6th, 2009 8:59 PM
who is the cop with the shaved head and glasses that extend straight back behind his ears?
by anon
Monday Dec 7th, 2009 8:29 AM
At a glance, my guess is the cop with the shaved head and glasses might be officer Willi Brandt, but I can't see his face in any of the photos. Any help on this one Robert or Bradley?
by Dunno
Monday Dec 7th, 2009 11:48 AM
I dunno who it is, but it isn't Brandt.
by Dunno
Monday Dec 7th, 2009 12:34 PM

Here's another pic of the 'shaved head' cop
by human rights supporter
Tuesday Dec 8th, 2009 12:05 PM
I am so proud of these two. They went out of their way to support their community and the rights to be in a public place. Because they were there to defend the drummers...the drummers continue their constitutional right to peacefully assemble.
Being different started with being black, separate water fountains and all, and has continued for the lower class and alternative cultures of this world.
Humanity seems to have learned so little about treating people with respect and dignity that we all deserve.
People continue to hate and put down anyone who thinks, acts and/or believes differently then them. Many, many years of war rages on because of these inhumanities to each other.
Since it STILL doesn't change, all that's left to do is to know your rights and stand up for them.
Defend the laws that uphold those rights,and learn to (now this is hard) forgive the ignorant who don't understand that people can be persecuted by the very authorities we call responsible adults.
As in the times of civil rights violations for blacks and discrimination against women to vote, the ignorance of the world goes on and we can only pray that someday....
WE SHALL OVERCOME
WE SHALL LIVE IN PEACE
WE'LL WALK HAND IN HAND, ETC ETC.
Keep your hearts strong, keep love alive and forgive others that trespass against us for they do not ,AT ALL, know what they do.
by W
Tuesday Dec 8th, 2009 2:13 PM
Not sure I'm that keen on determining what rights I have on this Earth from a bunch of politicians and lawyers working in a system that they put in place without asking us.

Governmental scholars say modern society rationalizes government as a necessary part of the social contract. We talk about democracy to help distinguish this form of involuntary governance foisted upon the people from earlier monarchical forms of government foisted upon the people.

See it's all in the wording. Well, I don't remember signing that contact.

U. Utah Phillips quoted Catholic Worker, pacifist, & anarchist Ammon Hennecy, who, during one of his many appearances before a judge, was asked why he didn't respect the laws of the land.

Ammon'd be picked up for picketing illegally, and he never plead innocent or guilty - he plead anarchy. And the judge'd say, "What's an anarchist, Hennacy?" and Ammon would say, "Why an anarchist is anybody who doesn't need a cop to tell him what to do."

And the judge'd say, "But Ammon, you broke the law, what about that?" and Ammon'd say, "Oh, Judge, your damn laws the good people don't need 'em and the bad people don't obey 'em so what use are they?"
by art
Tuesday Dec 8th, 2009 3:32 PM
I'm neither here-nor-there about drum circles, but I'm willing to stand up against cops targeting homeless and fringe folk because their drum circle bothers one or two grumpy yuppies. Trash Orchestra came out in solidarity with these folks. Even after the melee at the market, the drummers continued to resist without our support. The drum circle still continues to this day, and cops are seldom seen there.

Resistance often has a high price, but sometimes we win.

More so than in larger cities, Santa Cruz is already an oppressive police state. Laws against sitting on sidewalks and curbs, surveillance everywhere downtown, a high ratio of cops to citizens in a town that spends more than a third of their budget on cops and their high-tech toys make it a constant joy to live here.
by dogspot
Monday Dec 14th, 2009 1:45 PM
seems to be a popular trend, but I've the one in the earlier photo "physically engaged" with street people before.
I think you have 3 different skinheads here.

Is the drum circle really so unpopular that a relatively large number of SC police have to focus on them?
by enigma
Tuesday Dec 15th, 2009 1:20 AM
Again Mr. Norse if you really care about the homeless so much, take them ALL into your home/property. Feed them give them warm clothing and shelter, and stop asking people to back social services that take their hard earned money and give it to those who just want to hang out and play drums all damn day!!!!! Oh I forgot, you never earned your money.
by well wisher (VC)
Tuesday Dec 15th, 2009 2:53 PM
Giving people a place to live is not the issue to me. It's about not creating rules that keep anyone from doing what is ok to do.
It should not be illegal to sleep in a vehicle because you are in between your last house and the next one.

Having places where you can get a simple meal and a place to park your vehicle or unroll your sleeping bag and a toilet should be available, on public land not private land. And it is more humane.
If you lost your home right now and couldn't get a place to stay that night, you should not get a $200 ticket for it.
And if you fall on hard times....which many more people will experience in the next few years, you should be let alone so you can get some sleep and get your life together.
If people don't want to work for awhile and want to travel and ask for change, meet new people and different places,as it once was ok, it should be still ok. But it's not.

And the media paints paranoid pictures of people who could hurt you and steal. Most people out there are very interesting and kind people. There are some who are hurt and bitter by a bad family experiences or loss of money or loved ones.
They can be so unhappy that they can be mean. Most of them would warm right up if we were a friend for them in their darkest hour.

The people who are afraid of people and carry hatred inside their hearts are the very people that could use these laws changed.
This world will never be peaceful until all people realize that we are all one. Sadly, those who don't know that, suffer from hate and fear towards even people who are kind and care for others.
They need our continued compassion despite their anger and lashing out at others. They do not know what they do. They need our effort to understand them and send them good thoughts for healing in their hearts.
by Long Time County Resident
Thursday Jan 14th, 2010 8:07 PM
Whether you choose to acknowledge it or not, the drum circle DOES bring in a bad element to the farmers market. People who are disrespectful of health and community rules prohibiting smoking and dogs inside the market. People who simply go from vendor to vendor with said dogs and cigarettes taking samples without any genuine intent to make a purchase. You can't tell me that all the heroin junkies with brand new hospital bandages aren't a drag on our community. Last week I was standing in line holding my two year old when one came by bandaged to the nines in a brand new wheel chair asking everyone in the market for a dollar. Having worked in drug treatment for a number of years, I can assure you it wasn't because he wanted to buy some cranberry beans. The fact is that these people, whether they carry drums or not, are part of the drum circle community. If drum circle members wish to win the support of the wider farmers market community, they should take it upon themselves to police this fringe element. Keep the dogs out of the market. Keep the cigarettes out of the market. Keep the non-drumming, dope smoking, snorting, shooting, bad-breath-having, societal leeches out of peoples' faces and away from their kids.
by concerned Santa Cruz citizen
Thursday Feb 4th, 2010 9:25 PM
Concerned Parent For Ending the Drum Circle....touches on a discussion that no one seems to want to address. The drum circle ten years ago+ was predicated on community, music and sharing. Presently, it is a den for the underworld of Santa Cruz. The scene has fallen apart over the years and no one wants to take responsibility for keeping the scene cool. I have personally witnesses a never ending display of drug dealing/using, open alcohol use, intimidation, yelling,screaming and blatant disregard for vehicles trying to park in the lot. Tables and chairs are positioned in the parking lot...people selling wares and at times general lawlessness. Patrons of the market have been turned away because of bad encounters in the parking lot not to mention the crazy loud music(if you want to call it that)that slams the market for four hours+ every week....nobody deserves this! The market continues to suffer every year..loosing long time customers because of this scene. Many of the farmers are over it. A few refuse to come and work their booths because of the noise and their frustration.Go talk to Windmill Farm...he will give the low down. Poor guy...old radical hippy farmer and he won't even come to the market to sell his own food. If the drum circle gave a s.... about the market they would do something to clean their scene up. Don't believe it...go watch for a few hours every Wednesday and you will see what goes down. Support farmers...community and Santa Cruz not selfish behavior. Peace!