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Indefinite Detention Santa Cruz Style: SleepCriminal Gary Johnson Held on $5000 Bail
Gary Johnson, the homeless activist doing a nightly protest against the Sleeping Ban, the Lodging Ban, and the curfew at the Courthouse, was held from Friday 1-6 through Tuesday 1-10. On Tuesday morning he was brought into Department 2 (John Gallagher's court) in shackles and manacles in his orange jump suit on $5000 bail. He left in the same condition after getting a February 3 1:30 PM date for a demurrer hearing before Gallagher (challenging the Constitutionality of PC 647e, the Lodging Ban. He was refused release and returned to jail on a bail of $5000.
Ed Frey, who was convicted with Johnson last year, of the same crime he's been charged with for last week's peaceful political protest, made several arguments before Judge Gallagher. Frey argued that Gary had made all his court dates, his so-called crime was a non-violent action which hurt no one, and that, as a homeless man, he had no legal place to sleep in the City of Santa Cruz.
Judge Gallagher insisted he could go to the "homeless shelter". To this, Frey responded that the waiting list was many weeks long and the shelter could only accommodate a fraction of the homeless community. Gallagher echoed the district attorney's argument against a no-bail release pending trial saying that Johnson had told deputies he would be returning to sleep there in protest when he was initially arrested.
Johnson, however, said, through Frey, that he would obey all laws, presumably including 647e, the Lodging Ban, which Gallagher has previous interpreted to include sleeping. Frey pointed out that under that ruling, there was no legal place at all for Gary to sleep, and that sleep was a biological necessity.
Gallagher pointed out that Frey was "getting angry". Frey agreed. February 3 at 1:30 PM was the date and time set for a "demurrer" hearing, which will argue that the law is unconstitutional. Two similar arguments in prior cases have been turned down by Gallagher.
SPEEDY TRIAL MIGHT LEAD TO A HUNG JURY OR JURY NULLIFICATION
Jury nullification is the right of a jury to say "not guilty" in spite of the judge's instructions and the law's wording in the interests of justice.
Gallagher's clear bias led me to suggest to Frey that instead of another demurrer hearing before Gallagher, Johnson demand a speedy jury trial (required within 30 days, since he's in custody). If one juror refused to find Johnson guilty--seeing the absurdity of the charges perhaps--then the D.A. might be less likely to go for a second trial (costing thousands of bucks). It might also discourage deputies from citing Occupy Santa Cruz protesters for the offense---something repeatedly done, followed by "disappearing charges" which don't show up when the victims come to court. Frey said he would propose this to Johnson.
Linda Lemaster's attorney Jonathan Gettleman has used a different strategy against the protest-smashing 647e charge. He filed a writ of habeas corpus in response to her 647e charge to which the D.A.'s office has recently responded. Gettleman's brief can be found at http://www.indybay.org/newsitems/2011/09/20/18690858.php?show_comments=1
SLEEPING BAN UPDATE
Meanwhile a review of court records reveals that the City's Sleeping Ban (MC 6.36.010a), the law against which Johnson has been protesting for several years as far back as PeaceCamp2010 shows that the new fine for sleeping after 11 PM outside or in a vehicle on public property is $155.
Those cited with this law are advised to get on a waiting list at the Homeless (Lack of) Services Center in order to have such future tickets dismissed. HLOSC Director Monica Martinez is refusing to write letters to the court acknowledging that the shelter is full--something previously done as a matter of course under HLOSC Directors Ken Cole and Doug Loisel. However, a law passed under protest pressure in the fall of 2010 requires the City Attorney to dismiss MC 6.36 charges if the person charged was on a waiting list for the HLOSC or the River St. (mini) Shelter.
For those convicted of the City's Sleeping Ban or Blanket Ban (MC 6.36.010b), the law limits judges from giving more than 8 hours of Community Service. In Johnson's case, Commissioner Kim Baskett has twice defied this requirement and given him 25 hours last spring.
Just as Gallagher refuses to follow the U.S. and California Constitutions, Baskett apparently has no problem ignoring even the city's own legal code when by doing so, she can punish poor people more severely.