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Sinister Street Singers Trials Consolidated and Postponed Until July
by Robert Norse ( rnorse3 [at] hotmail.com )
Thursday Apr 29th, 2010 9:42 AM
The third and fourth trials of the Street Singers accused of "unreasonably disturbing noise" (MC 9.36.030) for singing the homeless version of "Downtown" in front of the Bookshop Santa Cruz last January were postponed until July at the request of the defense. Defense attorney Ed Frey, representing homeless defendant Robert "Blindbear" Facer and probably representing me was in jury trial and needed more time to prepare the cases.
TRIALS POSTPONED
Commissioner Kim Baskett called the case first at 1:30 PM on Tuesday afternoon. After some discussion with Facer, me, and legal worker Ray Glock-Grueneich, she put off our trials until 10:30 AM July 20 (in Dept. 10--the basement court, unless the court's audio equipment isn't working).

City Attorney Barisone, present at all appearances in Becky Johnson's prior case involving the same incident, was not present. In Johnson's case, Barisone unaccountably acted as the prosecutor in what was allegedly a "citizen's complaint" by St. George resident Sean Reilly. Barisone also took the initiative in putting the case on the City Council's closed agenda on 4-13 (see “Sinister Street Singer Citation Hits Closed Session of City Council “ at http://www.indybay.org/newsitems/2010/04/12/18644482.php )

Sean Reilly, the St. George Hotel resident who signed the complaints and was supposedly prosecuting,, showed up some minutes after the cases were continued to July 20th. He spoke with me outside the court and assured me that he had no interest in suppressing the homeless civil rights issues we were petitioning around that day, having been homeless himself. I suggested to him that in future protests at that location, it would be best to speak to us before calling the police; he agreed that would have been better and seemed to indicate he would do that in the future. At our last protest on April 9th there, he made no complaints (“Swing Along with the Sinister Sidewalk Singers “ at http://www.indybay.org/newsitems/2010/04/07/18644020.php
Reilly also noted he'd not have filed the citations if he'd known we were going to quiet down, apparently misinformed by Officer Schonfield, who took the complaints.


BASKETT—THE GOOD AND THE BAD
Commisioner Baskett also granted my pre-trial motions that the court itself make an audio record of the trial for purchase, allow me to make an audio recording for personal use and to also play that audio publicly on Free Radio Santa Cruz. this has been her position in prior cases, in sharp contrast to Judges Volkman, Symons, and Almquist.

However, in all fairness, it needs to be pointed out, Baskett is generally no friend of the defendant and tends to routinely uphold police accounts. Or, as one wag put it, “she has a record and a reputation for explaining fully and amicably before finding you guilty and emptying your pockets.” In the past, it's been common wisdom to disqualify her under a 170.6 CCP motion and move the case to a “real” judge in the courthouse next door. However harsh decisions by Judge Ariadne Symons have given some pause here.

My arraignment was actually scheduled for April 29, but she moved to combine the two cases ("to save court resources"). This disadvantages the defense because we believe we benefit from a record of one trial being clear (and made under penalty of perjury) so that the testimony of the prosecution witnesses (Reilly and--in effect--officer Schonfield) is laid out clearly.

However, in setting the trial far ahead, she did allow for us more time to discover more evidence and prepare transcripts of the audio tapes made at the time of the arrests.


THE SCHONFIELD MISINFORMATION
These tapes and the police report indicate that Schonfield misinformed Reilly about the intentions of the singers. On January 6th Johnson was willing to sing more quietly, but needed to know how quietly we had to sing to be within the law.

Officer Schonfield refused to say and interpreted our animated concern as being indication that we wouldn't lower the volume of the singing (which had actually stopped). She then misinformed Reilly that we would continue to sing loudly and that he needed to sign a citation to stop that from happening. He did so.

Charitably, this might be written off as bad training of Officer Schonfield (who only came on the downtown beat last summer). Or perhaps a broader policy of unilaterally broadening the existing law from a “don't sing too loud” law to a “don't sing at all if we don't want you to” law.

However my prior experience with her last year indicated a tendency to use personal prejudice and selective enforcement. In the case of Bernard Klitzner's protest against City Council's “sit on a bench for more than an hour, pay a fine” anti-homeless law, Schonfield refused to cite or take a police report—thwarting his efforts to bring the law to court (see “Illegal to Sit on a Bench--Just Watch Me “ at http://www.indybay.org/newsitems/2009/04/28/18591739.php ).

The absurd contention that First Amendment activity on the street has to be at a low enough volume to not awaken a light day sleeper the second floor at an open window on a weekday at 2:30 PM on Santa Cruz's busiest street, is, of course, absurd. This whole prosecution (especially with the unusual involvement of the City Attorney) smacks of a desire to maintain an illegal "move along" policy at the discretion of the police and nearby businesses and residents. Not what the law and the Constitution allow.


ANOTHER CONFLICT
On another issue, Baskett and I tangled. Baskett led me to understand at my prior hearing when I asked the arraignment be postponed until I could secure an attorney that I would have a second chance there to disqualify her if the attorney and I felt that was a good idea. However, now I was told that my time for doing so had “elapsed”, and I would have had to notify the court at a prior time. She also refused to allow me to postpone my plea until I'd conferred with my attorney (some motions need to be made prior to plea).

Other observers suggested Baskett was being considerably fairer than Judges Symons and Almquist--who held hearings and trial on the Johnson case involving the same sidewalk singing incident. Baskett's granting of a lengthy continuance contrasted sharply with Symons's prosecutorial decision to rush the Johnson trial, even though her newly-acquired attorney Ed Frey had a jury case at the same time.

Barisone explained twice in court that Baskett had called him into “cases where the opposing side has counsel” or “where constitutional issues are involved.” This has a nice ring, but still gives the City the power to weigh in with all its guns, using a private citizen as a stalking horse.


THE POLICE “MOVE ALONG” MANTRA
At issue are the SCPD "citizen arrest" and "unreasonably disturbing noise" procedures being used to shut down street musicians and activists under the increasingly repressive Downtown Ordinances. Sgt. Harms and Officer Schonfield are claiming that the SCPD cannot give an opinion as to what level of music or playing is soft enough to qualify as legal. Nor, they claim, does the law allow them to cite under the law without a citizen complaint.

This “no cop complaints allowed” policy is not explicitly supported by the text of MC 9.36.020 (see “The Law Itself” under “Notes on A Sinister Sidewalk Singing Trial” at http://www.indybay.org/newsitems/2010/04/22/18645414.php ). Nor has Harms, in spite of repeated Public Records Act requests, showed any police policies that require this procedure. The point is that cops themselves claim they are forbidden from giving a clear standard to performers as to “how loud is too loud” other than to tell them to shut down and/or leave—which is not what the ordinance requires. However it seems to be what the cops want to do under the on-going homeless removal program.

In addition, police are apparently not advising all parties that the law does not allow businesses and residents to veto street performance and political activism even if they find it "disturbing". By threatening to drag them into court on a criminal charge requiring a $450 bail to avoid going to trial, as happened on January 6th, police are effectively chilling the right to speak out (or sing out). A second citation can bring a fine of up to $1000 and six months in jail. How can that be avoided if you don't know “how loud is too loud?”?

The law allows loud singing, performing, and preaching,between 8 AM and 10 PM provided the sounds are not "unreasonably disturbing or physically annoying to people of ordinary sensitiveness or which are so harsh or so prolonged or unnatural or unusual in their use, time or place as to cause physical discomfort to any person, and (b) which are not necessary in connection with an activity which is otherwise lawfully conducted."

This issue will become important if police move on the reduced and relocated Wednesday Drum Circle on May 3rd. Sgt. Harms is citing complaints under this law (see “Sgt. Harms Reportedly Issues Ultimatum to the Downtown Drum Circle “ at http://www.indybay.org/newsitems/2010/04/28/18646028.php ).