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Santa Cruz Eleven Preliminary Hearing Set for January 2013
by Bradley Stuart Allen ( bradley [at] riseup.net )
Monday Aug 20th, 2012 4:25 PM
Approximately 50 supporters of the Santa Cruz Eleven packed into Department 6 of the Santa Cruz Courthouse on August 20 2012, for a hearing before Judge Paul Burdick to decide if the case against the seven remaining defendants would be dismissed. The defendants, their attorneys, and supporters were disappointed when Judge Burdick ruled that the case will proceed, and scheduled a confirmation hearing on January 4 2013, at 9:00 a.m., followed by a preliminary hearing on Monday January 7.

Three district attorneys, Rebekah Young, Jeff Rosell, and David Sherman, were present to argue that the case should move forward. The district attorneys were both denying and admitting that throughout the case, there has been an improper disclosure of discovery evidence to the defense attorneys.
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On the evening of Friday August 17, District Attorney Rebekah Young sent an email to six of the seven defense attorneys (Jesse Ruben, representing Franklin Alcantara, was mistakenly not emailed) informing them that she was copying all evidence in the case to seven external hard drives for each attorney. At court on Monday, each of the defense attorneys was handed a document specifying the evidence now being supplied on an external hard drive.

Judge Burdick said that he was trying to reach a consensus as to what has been in possession of the prosecution, and has not been produced to the defense attorneys. He stated that police relied on the review of video to determine who was inside the building after a notice of trespass was issued, therefore it is unfair to the defendants to not have access to the material evidence.

District Attorney Young wanted to clarify that Detective Gunter viewed video and printed still photographs. However, Young says, other SCPD officers identified people at the scene, not via watching video afterwards. DA Young stated that the court has not heard from these officers, some of whom were waiting outside the courtroom, including Sergeant Mike Harms and Detective Mike Hedley.

DA Young stated that the Santa Cruz Police Department turned over 13 DVDs to the DA's office, however the police inspectors were unable to make copies of 5 of the DVDs. The police technicians were not able to copy them either, so they reportedly came up the idea to create a YouTube channel and upload the video there.

Defense Attorney Alexis Briggs stated that the YouTube channel was first allegedly created by the DA's office to call on the public to help identify people in the videos for prosecution, not as a means to provide discovery evidence to the defendants.

Judge Burdick posed a question asking if the DA ever stated that "all material" had been provided to the defense. According to defense attorneys, some of them had been told repeatedly that they were in possession of all discovery evidence.

DA Young stated that she had an open-door policy the whole time, and lawyers welcome to visit her office and watch the videos at anytime. Defense attorneys stated that the DA never communicated this message to them, and Jessee Ruben said that in the past, Santa Cruz DAs have not been willing to share information in other unrelated cases.

The DA stated that Santa Cruz County provides discovery evidence above and beyond what is required by law, noting that the case is still in a pretrial phase. That assertion, however, was challenged by the defense, who maintained that the discovery process has been both inadequate and deceitful.

The DA stated that videos were uploaded to the Internet in a fashion that everyone has access to. Judge Burdick replied that the YouTube upload was incomplete. The DA replied that they uploaded all they could at the time, and over the weekend they purchased external hard drives for each of the defense attorneys.

Judge Burdick declared the problem is that the preliminary hearing has been scheduled for two times already, and videos were previously not ready. The judge stated that he has ordered all the videos to be produced. He then noted that this is a high-profile case.

There was a lot of discuss as to how and when the defendants were identified by the police. The DA stated that the defendants were identified by police officers on the scene. Alexis Briggs said this assertion was simply not true. Her client, Cameron Laurendau, was allegedly identified by the SCPD following an anonymous tip that he was pictured in a photograph published by the Santa Cruz Sentinel.

Alexis Briggs said that she was not informed about the videos uploaded to YouTube. Furthermore, some of the videos do not contain audio, are not authenticated, and their purpose was for the public to identify more people. Briggs also told the court, "I was always assured by Ms. Young that I had all the evidence. I was never invited to the DA's office to view the photo."

Defense attorneys argued that the report they were handed that morning does not comply with the judge's order to the DA on Friday. Judge Burdick asked the defense what they were missing. Alexis Brigs states that she did not have the photo from the Sentinel allegedly showing her client. There was discussion of a video allegedly showing her client, Cameron Laurendau, in conversation with police officers during the occupation of the vacant bank at 75 River Street. There was disagreement as to how Laurendau was identified by police, with DA Young insisting it was a face-to-face identification by the officers.

Lisa McCamey, representing Brent Adams, said that she was not informed about the videos uploaded to YouTube. Rather, she was handed a stack of DVDs and told it was everything.

Brian Hackett, attorney for Gabriella Riply-Phipps, joined in the comments previously expressed, and added that the inventory report the defense attorneys received that morning were not adequate.

DA Young stated that she provided damage reports to defense attorney Dan Clymo, representing Becky Johnson, but did not realize other attorneys want it as well.

Dan Clymo said he was handed a vat of videos, and believed that was the entirety. He was surprised on Friday at the confirmation hearing to learn there was more video.

Shaneen Porter, defense attorney for Desiree Foster, the youngest of the Santa Cruz Eleven, raised the issue of how people were identified and charged. She noted that eleven people were charged out of the hundreds who were filmed and observed by police. DA Young replied that she plans to address how people were identified.

David Beauvais, the lawyer representing Robert Norse, went over many dates of communication between Norse's previous lawyer and DA Young. For example, on March 13 2012, a request for discovery was made. DA Young was also asked to produce policy regarding SCPD crowd control, as well as any policy regarding journalists at protests.

Beauvais continued, pointing out that the court ordered the DA to produce discovery in May, yet on May 24, video still had not been received. Beauvais said the DA was engaging in harassment, including the refiling of dismissed charges, in a conspiracy case which is weak on its merits.

"We're asking the court to dismiss this case where lives have been disrupted. The case should be dismissed today with prejudice," Beauvais asserted.

Judge Burdick stated that the case has problems, continuing yet another preliminary hearing, and an easy order was not complied with by the DA. Burdick posed another question regarding the disclosure of evidence: "Was it bad faith, or sloppy work?" He answered his own question, saying that he did not believe DA Young was acting in bad faith, but clearly there was negligence by the district attorney.

Judge Burdick asked if anyone wanted to respond, and DA Young quickly stood up to take some responsibility. Burdick asked why the evidence was not disclosed properly back in March.

DA Young replied defensively that she just spent a great deal of money on her part to purchase external hard drives for each of the seven defense attorneys. Outside the courtroom, supporters of the Santa Cruz Eleven expressed doubt that the money would be coming out of the DA's pocket.

In response to the failure to provide discovery evidence, DA Young said that she believes everyone is aware that, "none of us are technical geniuses." DA Young then said she found a great solution in the external hard drives, and that she was not acting in bad faith.

Another District Attorney spoke in defense of DA Young, saying, "I've never heard of a DA copying a hard drive. Ms. Young tried method, after method, after method. Then we had a Eureka moment, and the idea to copy the hard drive."

The DA attempted to smooth things over regarding the disclosure of discovery, assuring the court that all evidence is now available to each of the attorneys on individual hard drives. Judge Burdick smartly replied, "Fine, at the eleventh hour."

The DA suggested to the judge that he discipline the DA's office, but pleaded with him to not throw out the case. "The People have a right to try the case," he said.

Judge Burdick then made his feelings for the day clear by saying he does not think his discretion is best used by dismissing this case. He felt that DA Young was not acting in bad faith, but that she was clearly negligent. The judge said the preliminary hearing will be moved to a later date.

Judge Burdick stated that he was not inclined to grant a motion to dismiss the case. Rather, he may issue a sanction to the DA's office.

Before re-scheduling the preliminary hearing, Judge Burdick made it loud and clear to the defense attorneys and everyone in the courtroom that he is not lighthearted about the occupation of 75 River Street. "I'm not going to dismiss the case. Serious crimes were committed here. Who's responsible for the crimes that were committed?"

Alexis Briggs and Jesse Ruben, representing Cameron Laurendau and Franklin Alcantara, said they would like to file a motion to dismiss based on the refiling of charges against their clients. A hearing on the motion to dismiss for Laurendau and Alcantara was scheduled for Tuesday October 9 at 8:15 a.m.

Due to the difficulty in scheduling for seven defense attorneys with busy schedules, the new date for a preliminary hearing was scheduled for five months away, in 2013.

A confirmation hearing was scheduled on January 4 2013 at 9:00 a.m., followed by a preliminary hearing on Monday January 7.

For more information about the Santa Cruz Eleven, you can visit:
http://santacruzeleven.org/

Seven Remaining Santa Cruz Eleven Defendants Return to Court August 17th & 20th
http://www.indybay.org/newsitems/2012/08/09/18719222.php



Bradley Stuart Allen is a photographer, Indymedia volunteer and website developer living in Santa Cruz, California. Allen, a longtime volunteer photojournalist and editor for Indybay.org, is one of the Santa Cruz Eleven. The charges against him were politically motivated, but legally unjustified. All charges against Allen were dismissed on May 14 2012, thanks to legal support and organizations including the National Press Photographers Association (NPPA), Reporters Committee for Freedom of the Press (RCFP), Society of Professional Journalists (SPJ NorCal), and the American Civil Liberties Union (Santa Cruz County and Northern California ACLU).
§SCPD Detective Dave Gunter and Sergeant Mike Harms
by Bradley Stuart Allen Monday Aug 20th, 2012 4:25 PM
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by Bradley Stuart Allen Monday Aug 20th, 2012 4:25 PM
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§SCPD Detective Mike Hedley
by Bradley Stuart Allen Monday Aug 20th, 2012 4:25 PM
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§Robert Norse and Attorney David Beauvais with External Hard Drive from the DA
by Bradley Stuart Allen Monday Aug 20th, 2012 4:26 PM
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Comments  (Hide Comments)

by Sylvia Caras
Monday Aug 20th, 2012 4:56 PM
I'm mentally comparing the cost of seven hard drives to the fees of the seven lawyers who must request postponements until they have been given all the materials. I'd like to see the lease and the damages estimate, before and after pictures demonstrating the need for repairs, the several bids to do the work, and information about whether Wells Fargo or their insurer paid the bills.

January?!
by A. Supporter
Monday Aug 20th, 2012 7:06 PM
What an amazing level of support in court today! It's both terrible and wonderful that these prosecutions have brought the Santa Cruz activist community back together. Let us continue to struggle on.
by Steve Pleich
Tuesday Aug 21st, 2012 9:51 AM
In a recent opinion piece in the Santa Cruz Sentinel, Santa Cruz Eleven friend and ally Dennis Etler ask the question "Where is the outrage?" It now appears that it has found its way into our Superior Courts.

On Monday, Judge Burdick expressed his outrage at the shoddy, negligent manner in which the District Attorney's Office has mismanaged the SC11 prosecutions (persecutions) and summoned the specter of sanctions. However, when asked to impose the ultimate and wholly appropriate sanction of dismissing the charges against the remaining defendants he balked saying that crimes had been committed and someone must be held responsible for this breach of the public peace.

While Judge Burdick may have the luxury of expressing his outrage and righteous indignation from a position of power and influence, few of us in the community have the same opportunity. Better he had directed his "outrage" at the true heart of this matter. In doing so he may have prompted some sober reflection from the community he represents, and perhaps, even some outrage.
by Robert Norse
Wednesday Aug 22nd, 2012 7:44 AM
A helpful and detailed article by Bradley--much thanks for this.

I'm still reeling from the important exchanges that went on in court but have some initial reflections.

Because I'm both a participant in the case (a victim, I believe) as well as a reporter, I want to take especial care to be fair and accurate in my assessment of the D.A.'s and the judge.


BURDICK BACKS DOWN
Burdick seems to be reneging on his own ruling Friday requiring Young to have all the discovery requested by the defense by this Monday hearing. There was no photo of Cameron Laurdendau as requested months ago. There was no set of the policies and practices of the SCPD regarding First Amendment protests as requested months ago. There were numerous other specific instances brought up by the defense. Hopefully a transcript of this hearing will be obtained and posted, since most if not all of the defense's specific arguments were ignored or cut off.

Burdick seemed to be ignoring false statements past and present by Young to both the defense attorneys and the court. Most notably, the repeated assertion by Young that all discovery had been provided. She claimed this in phone conversations with the defense, in e-mails to them, in (presumably sworn) statements to the court, and in response to specific court orders. Another apparent falsification—that the D.A. Had an “open files” policy and that she'd informed all the attorneys about this.

Burdick seemed intent on taking the pressure off of the guilty D.A. by postponing any sanctions hearing against her until January. He stated not only that was dismissing any possibility of dropping the case, but that he wouldn't hear any further argument about it. He refused to let the defense go on record with specific evidence of Young's “inaccurate” statements. If you or I lied to the court repeatedly, I am sure the outcome would be different.

Wasn't it the threat of dismissal that got Young to finally get the hard-drives with the police records made last Friday? (She didn't even bother to bring them to court, as ordered, showing her usual casual attitude which seems to indicate—perhaps accurately—that she can ignore explicit court orders with no real consequences). This hard drive approach, she admits , could have been done months ago and is regularly done in child pornography cases (contradicting her fellow D.A.'s who seemed to be piously lying about the situation as well).


NO CHALLENGE TO THE LIES
Burdick didn't directly challenge Young's rapid-fire excuses and explanations: Either (a) it was okay to do what she did, (b) she hadn't done it, (c) she was working as hard as she could, (d) would do better in the future, and (e) she was really sorry about any inconvenience. This contradictory series of “dog ate the homework” stuff would be comical if it didn't so badly impact real people's lives and the political climate of the community.

Young repeatedly failed to inform defense, not only of the discovery being with held, but also of hearing dates, causing arrest warrants to be issued in two cases. She provided different documents to different attorneys not giving it to all of them—as she falsely claimed.

A special salute to attorney Alexis Briggs, who though coming from miles away, did more to reveal the explicit legal abuses than all the other attorneys put together.


ABSURDITIES
The absurd contention that putting unauthenticated video on a You-Tube channel without audio and without informing the defense is a full and fair revealing of evidence, is, of course, absurd on its face. As noted, this was done in the hopes of incriminating more innocent political protesters. The D.A.'s were looking—not for vandals, but for community members who entered the building—unless they were a former Mayor or a part of an establishment newspaper, of course. Burdick did not acknowledge this was irregular, unfair, or inappropriate that I recall.

A key point for me is that Burdick acknowledged the discovery was incomplete at the Monday hearing. This contradicted Young's insistence that it was. If it wasn't, she had violated Burdick's order—additionally by not specifying the particular discovery she supposedly gave to each attorney, which Burdick ordered on Friday.

So Young's statements violated the court order and then lied about it—publicly, in court, in front of Burdick. And he had no problem with that. Worse, he apparently didn't renew his demand that Young provide complete discovery by the next court hearing. That prospect had been made more unlikely by Burdick's categorically dismissing the prospect of dismissing the case and postponing any sanctions discussing until January.


THE CHARADE ENLISTS A JUDGE
This tends to give more force to Attorney Beauvais's concluding comment that the whole process i a “charade”. The only thing that needs to be added is that the judge has now willing joined in, abandoing his role as “neutral arbiter”. His soap box oratory about “serious crimes” can't disguise his willingness to overlook serious prosecutorial misconduct, whatever the cost to innocent politically-charged defendants. Even if Young's repeated violations don't amount to bad faith, then why should a terminally incompetent and negligent prosecutor be allowed to remain on this case?

I had thought that perhaps Burdick, simply wanted to proceed quickly to the Preliminary Hearings to determine if there's actually any substance at all to any of the charges against any of the defendants? Perhaps he was annoyed with the defense for trying to stop this process by raising very real questions of prosecutorial misconduct? His behavior at the Monday hearing makes me seriously doubt this.


THE REAL ISSUES
The cost to defendants? They will have to be looking over their shoulders at every political protest they go to, postpone attempts to get teaching credentials (and so be denied work), deal with questions from cops who stop them and note they are under felony indictment, and generally face the continued stigma that to many seems to be the real point of these prosecutions.

The cost to the community? Continued fear that others may be next will continue to haunt and terrorize Santa Cruz activists. These first ever felony overchargings are a new tactic in Authority's war against the community's anger, as seen in last year's Occupy Movement.

The trial is, in fact, a charade, Burdick's sanctimonious comments notwithstanding. There is clearly no substance to these charges against these defendants--no evidence of any vandalism by any of the defendants, simply well-intended peaceful protest at best. Even the charges of trespass haven't been substantiated.

As usual, missing from this discussion (since we're operating under laws, d.a.'s, and cops created to protect the rich) are the basic truths: Empty Buildings are the Real Crime. Wells Fargo is the Real Criminal. Crushing Protest Through This Ordeal is a Conspiracy to Violate the First Amendment.

These are the issues we need to bring to the community in the days to come.

Additional thoughts by Linda Lemaster can be found at
http://www.indybay.org/newsitems/2012/08/18/18719820.php?show_comments=1#18719943

Defendant Becky Johnson's comments:
http://www.beckyjohnsononewomantalking.blogspot.com/2012/08/santa-cruz-eleven-brace-for-long-dirty.html
by Sylvia
Wednesday Aug 22nd, 2012 10:45 AM
The arguments of Alexis Briggs and David Beauvais were strong bookends describing Young's lack of compliance. Not just the lack of video material, but also the damages estimate - before and after documentation, were there bids, was the chosen contractor local, who paid. And how Cameron was identified has just been ignored! Friday Judge Burdick seemed angry about this case, Monday even more so.

I've come to court early several times, and listened to Judge Burdick deal with the 8:15 calendar. Up 'til now I had thought him quite fair and reasonable, focused on the person as well as the law.

Before this case Monday, at the 8:15 session, he reluctantly excluded evidence including five bullet casings because the arresting officer had ignored certain paperwork which he had been shown. And he was concerned about his crowded calendar.

When it was the turn of seven of the Santa Cruz Eleven, and after hearing patiently from I think 10 lawyers, he reacted to the word 'charade', insisting then that there were crimes committed, and noting the sanctity of private property. I am wondering if the anger came from internal conflict, if he was doing what his mind told him he should instead of what his gut told him was just.

And I wondered if after last Friday and the coverage here and in the Sentinel, there was political and public pressure on the court and the DA's office - Burdick stepped back from his Friday indignation, Young's two supervisors came to support her, she stood up immediately to take the blame for non-compliance ...

...
by RazerRay
Friday Aug 31st, 2012 11:33 AM
I don't understand, nor was one of the current defendants able to clarify why the remaining defendants didn't IMMEDIATELY rescind their waiver of time when the first defendants cases were dismissed and it became obvious the prosecution's state of disarray, lack of evidence and failure to move forward in a timely manner.

Could it be that SOME of these people are simply milking it for the publicity and donation money?

PS... Don't bother responding with "Our lawyers advised..."
by Robert Norse
Friday Sep 7th, 2012 1:31 PM
All the cases are somewhat different in spite of the general scapegoat/frame-up involved. I can really only speak for my own case.

Not having all the discovery, I wanted to see it (both to defend our particular cases and to ulltimately expose as much as possible about police and prosecutorial misconduct---that was my motivation anyway). In fact, we still haven't got it all--in spite of Young's lies to the court and to us.

Attorneys, of course, have their own (often irrelevant, divergent, or conflicting) agendas. Most of the attorneys in this case only talk to each other when actual court dates happen--which has pissed me off, no end. They also lack experience with and interested in activist agendas. On top of that the defendants are mostly scared and ignorant of legal procedure (myself included--these are felony conspiracy cases), and so likely to do what their attorney advises.

Would that we had a conscious "milking this for publicity" strategy--might be a great idea with appropriate press conferences.

Most recently, the January postponement happened without attorneys consulting with their clients, but just checking their own schedules. Can't speak for others, but it hit me as a shock, and I realized afterwards I should have dragged my attorney out of court to consider. I think I was too busy taking notes.

I think pulling the time waiver is a strategy worthy of consideration (though it has the drawback of eliminating the mass trial, where the defense attorneys can act as a firing squad to Young's slipshod make-it-up-as-you-go case).

I also have the problem that my City Council Repression case (involving the mock-Nazi salute) goes to federal trial in San Jose (where two Mayors will be civilly tried for false arrest) in late October. Preparing for two trials at once is a difficult thing to do.
by A. Supporter
Friday Dec 28th, 2012 11:03 AM
The jewish mother in me shows her love through food. I'll bring some fruit and nuts. I hope others can provide food and drink as well. There is also a coffee cart in the atrium.
by Linda Ellen Lemaster
Tuesday Jan 8th, 2013 5:20 AM
January 7th
Politicized pretrial hearing for the Santa Cruz Eleven, in Judge Burdick's courtroom # 6, began about 9 am with some action, yesterday Jan 7th. Step one: getting a table big enough for all 7 attorneys representing the people being targetted and prosecuted for a for 75 River St bank takeover from early Dec 2011.

The long vacant bank building became occupied following a 'March to End Foreclosures' sponsored by Occupy Santa Cruz, Nov 31, over a year ago. Marchers had not been planning to occupy the Wells Fargo owned bank.

One of the challenges of the trial: the Santa Cruz Police Department was arbitrary in selecting whom to prosecute, pretty much making it clear that the District Atrtorney is nore focussed on targetting Occupy Santa Cruz, than it is on dealing with those alleged crimes. They selected out known activists and grassroots media personalities and reporters mostly, and neglected to actually investigate in a timely manner, to find evidence of anyone actually responsible for the alleged break-in.

The Occupy-related smear job continued in court today as police officers testified about "anarchists" and fear of danger in one breath without defining either, let alone linking their comments to any of the indicted defendants.

So our community is being treated to a highly charged, politically motivated legal trial based entirely on the selective enforcement that police mustered up, over two months after the bank was taken for 72 hours or less, and then vacated peacefully and in cooperation with police department "negotiators".

"Vandalism" seems to be the compelling issue for the state, according to comments from District Attorney Bob Lee last summer. He said if somebody pays off the fluffy vandalism bill of nearly $30,000, "this will all go away," referring to indictments and this trial. But tresspass and felony conspiracy are also being pushed onto these seven remaining defendants.

Several police officers were questioned Monday, and the pretrial hearing resumes at 10 am tomorrow, where an officer will completre his part, and a "hostile witness" will then be called by the DA.

Judge Burdick said there are some other decisions to face after the witnesses finish.

Several of the defendants have predicted those decisions have to do with whether Burdick will continue this pretrial hearing to trial, or toss the provocative but toothless case in the interest of justice. He is also expected to finish a claim against assistant DA Rebecca Young for recurring delays in evidence sharing and other technical mis-steps.

There were over 50 SC-Eleven supporters and a few others witnessing the pretrial hearing, proving once again that rumors of Occupy Santa Cruz' demise are exaggerated.

Department 6, 10 am Jan 8th. 701 Ocean Street (at Water St) in Santa Cruz.