No Trial on September 25: Case Dismissed!

THE LONG STALL

Stalling until the actual trial readiness conference--five days before the actual jury trial was scheduled to begin--D.A. Archie Webber (and his superior Bob Lee) kept me and two attorneys coming back to court again and again on a false arrest that happened 15 months ago.

On June 14, 2005, Rotkin decided he'd prefer to disrupt a Council meeting for 5 minutes rather than allow me to speak for 2 minutes (like the speaker before me and the one after me). During that time he had the cameras and microphone turned off, so no direct documentation of Lt. Clark's use of excessive force was taped.

D.A. Webber and/or head D.A. Bob Lee acted either incompetently, with significant prejudice against me, in bad faith, perhaps under political pressure from the Mayor and/or SCPD (hard to tell which).


MISCONDUCT BY THE D.A.'S OFFICE

Webber refused to release the audio tape that Lt. Clark confiscated which I was making for Free Radio, for 4-6 months, and then only after we got a court to order him to do so. He claimed I could not be trusted to listen to the tape at the police department because of my "bad relationship" with them.

Webber declined to allow my investigator seeking to interview prosecution witnesses (such as Deputy Chief Vogel, Mayor Rotkin, and Lt. Clark) access to those witnesses. The police department would not allow access to police witnesses without the "okay" of the D.A.

Webber tried to broaden the trial to cover past instances of alleged "disruption"--an attempt struck down by Judge Denine Guy. None of these pasts "disruptions" were ever actually taken to court, much less to trial.

STRIKING BACK: CITY COUNCIL FACES TRIAL NEXT MARCH

Ironically, key City Council members will themselves be taken to trial in March of 2007. This time Mayors Krohn, Fitzmaurice, and Kennedy (and possibly Rotkin) will be the defendants--accused of a pattern of harassment and denial of First Amendment rights. Clark will also face trial as will Sgt. Loran "Butchie" Baker for abusive behavior.

D.A. Webber secured two trial-stalling continuances supposedly because Deputy-Chief Vogel, a prosecution witness, was going to be out of the area. [Full disclosure: we also secured two continuances] Webber then tried to secure a final continuance on the same grounds, further delaying the September 25th trial.


IMMEDIATE JURY TRIAL DEMAND FORCES D.A.'S HAND

On the sage advice of attorney David Beauvais, we told Webber and Judge Guy that we would fight the continuance and demanded instead a speedy jury trial. In response, after forcing Beauvais to prepare his opposition papers, Webber finally notified Beauvais by phone on Monday September 18th that they'd be dropping the whole business.

Webber acted in bad faith, I believe. He had promised at least three times in the last month to let us know whether he would be taking the case to trial, but broke his word each time.

However the frequently successful strategy of demanding an immediate jury trial (not so immediate actually after a year of delay) was probably what forced Webber to drop charges that were maliciously presented in the first place and then even more maliciously extended.


COSTS AND POLITICAL SIGNIFICANCE

The cost to the City and County of all these maneuvers is difficult to calculate in terms of prosecution time, court time, police time, and perhaps ultimate payback time if we successfully win a civil suit, but it certainly runs into the thousands, perhaps tens of thousands of dollars.

It's unclear whether Rotkin would have welcomed the trial and positioned himself advantageously as the "law and order" Mayor, or might have felt embarrassed by all the hubbub over letting someone speak for two minutes. He is running for reelection in six weeks (and needs to be defeated).


A FINAL TRY TO PREJUDICE THE JURY

In the final court appearance on Wednesday September 20th, Webber claimed he was moving to dismiss the case that he was doing so "in the interests of justice." (Dismissal for "inadequate evidence" means they couldn't prove their case; it's better in terms of embarrassing the prosecution; dismissal "in the interests of justice" is vaguer and could be done for a variety of reasons)

Webber said he was dismissing because Judge Guy's had ruled on August 30th that Webber couldn't bring in my unproved past "disruptions". The only issue allowed at this trial would be whether there actually was a significant disruption on June 14, 2005.

Hopefully the trial would have shown it wasn't a disruption by me, but one by Rotkin. The Mayor (who ironically is also on the Board of Directors of the local ACLU) chose to summon the police, turn off the cameras and audio recording, and order me arrested. Rotkin (and Vogel) watched as Clark used a painful and wrist-injuring "pain compliance" hold to arrest me--before announcing I was under arrest.

Clark subsequently threatened me repeatedly that he would "hurt me" if I ever "resisted him" at City Council again. Clark received no discipline for any of this behavior, as far as I know. Vogel and other police officials were in the vicinity when Clark made these threats and at least one officer overheard them. Unfortunately no whistleblowers in the SCPD yet.


D.A. DELAYING CAUSES DELAY IN FEDERAL TRIAL AGAINST CITY

Webber's delay in letting us know his decision not to go to trial, caused the civil federal trial AGAINST City Council to be delayed six more months. That trial was originally scheduled for September 25th the same day as the criminal trial, but Webber (and Lee) did not tell us they were dropping the case, so we had to choose which one to delay.


LOOKING BACKWARD

For more details of the case, check out:
http://indybay.org/newsitems/2006/08/29/18304510.php

My thanks to attorneys David Beauvais and Kate Wells for their steady underappreciated pro bono work defending me. Hopefully they will be able to receive some payback in the upcoming City Council Repression Trial next March.

Thanks also to the many supporters who came to court, offered encouragement, volunteered help, and passed out flyers.

A particular thank you to much-maligned activist Becky Johnson and much-burdened web designer Thomas Leavitt for strategizing, writing, and carefully examining the City Council tapes involved.

LOOKING FORWARD

Rotkin will be on my radio show on Sunday September 24th at 10 AM (see http://indybay.org/newsitems/2006/09/19/18312758.php)
where I shall ask him directly about this incident.

The real issue here is how we can restore a real public process at City Council that entrenches a significant public input segment for the community.

Cramming significant items onto afternoon city council agendas, particularly consent agendas where the Mayor can significantly silence discussion, has become almost standard fair for Rotkin and Mathews.

The Fitzmaurice "rules of "decorum" are actually a blank check for the Mayor to crush public dialogue at City Council meetings.

The cutback in keeping meaningful Council minutes, the casual and repeated violations of the state Brown Act (in which members of the public are threatened, for instance, for hissing), and the failure to publish adequate documentation on the web prior to City Council meeting, all discourage and dampen important public input.

Allowing staff endless amounts of presentation time and allowing Councilmembers unlimited debating time but threatening to arrest the public for attempting to speak briefly discourages participation, encourages subservience to those in power, and makes for bad legislating.