THE ENDLESS TRIAL
After a trial of more than a dozen hours over several months, Commissioner Kim Baskett will announce her verdict in the case of "Bathrobespierre" Robert Norse and Robert "Blindbear" Facer.
They are both accused of "unreasonably disturbing noise", to wit, singing political songs about the homeless in front of the Bookshop Santa Cruz on 1-6-10 which kept a nearby resident from going to sleep at from 2 to 3 PM in the afternoon.
This ridiculous charge has taken up dozens of hours of activist time, involved the City Attorney, and chilled free speech and song on Pacific Avenue for a number of activists for half a year.
Attorney Ed Frey defended Facer; I defended myself.
CLOSING STATEMENTS ARCHIVED
I played the closing statements of both prosecution and the defense on Sunday. They are archived in the next to the last hour of the audio file at http://www.radiolibre.org/brb/brb100919.mp3
Commissioner Baskett is to be commended for order a court recording, allowing the defense to make a recording, and giving court consent to play that recording on the radio. This is a right that should be routinely acknowledged, but is generally denied in Santa Cruz courts.
IMPORTANCE OF THE CASE
The City Attorney's office in a classic case of political persecution took over the prosecution though St. George resident Sean Reilly was the citizen complainant who signed the citation.
I and other activists consider the case particularly important because it goes to the abusive enforcement police use to shut down performers and singers on Pacific Ave. by using a "heckler's veto".
MC 9.36.020--the Unreasonably Disturbing Noise law--is itself unconstitutionally vague and overbroad. But police are ignoring its wording which does not allow police to stop singers. Nonetheless, cops are demanding that musicians stop playing and leave (not just quiet down). This is done on the whim of any anonymous complainant.
POLICE AND PROSECUTION ABUSE OF THE LAW
Schonfield didn't claim the singers were singing (and playing a small drum and keyboard) too loud until she reached the courtroom. She also refused to tell the singers and performers how quietly they should play in order to be legal.
Neither did complainant Sean Reilly who also did not warn them that their singing disturbed his day sleeping.
Commissioner Baskett severely restricted courtroom testimony, particularly shielding Officer Shonfield from testimony that she selectively enforced the law. Baskett refused to allow Schonfield to be questions on why she cited Norse, Facer, & others on Reilly's sayso, but refused Norse's demand that Reilly be cited for making a false police report. The SCPD manual as outlined below requires an officer to have "reasonable cause" in taking a citizen's or private person's arrest.
POLICE POLICY NOT ALLOWED IN TESTIMONY
The SCPD Police Policy Manual 364.1 provides:
364.2 ADVISING PRIVATE PERSONS OF THE ARREST PROCESS
(a) When advising any individual regarding the right to make a private person’s arrest, officers should refrain from encouraging or dissuading any individual from making
such an arrest and should instead limit advice to the legal requirements for such an arrest as listed below.
"364.4 OFFICER RESPONSIBILITIES
Any officer presented with a private person wishing to make an arrest must determine whether or not there is reasonable cause to believe that such an arrest would be lawful.
(a) Should any officer determine that there is no reasonable cause to believe that a private person’s arrest is lawful, the officer should take no action to further detain or restrain the individual beyond that which reasonably appears necessary to investigate the matter, determine the lawfulness of the arrest and protect the public safety.
1. Any officer who determines that a private person's arrest appears to be unlawful should promptly release the arrested individual pursuant to Penal Code § 849(b)(1). The officer must include the basis of such a determination in a related report.
2. Absent reasonable cause to support a private person’s arrest or other lawful grounds to support an independent arrest by the officer, the officer should advise the parties that no arrest will be made and that the circumstances will be documented in a related report."
Attorney Ed Frey is appealing Becky Johnson's astonishing conviction in the courtroom of Judge "Armtwist" Almquiet this spring (see "Notes on a Sinister Sidewalk Singing Trial" at http://www.indybay.org/newsitems/2010/04/22/18645414.php
The Norse and Facer cases may also be appealed if the verdict comes in "guilty".