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IC3: Defense Lawyer Threatened With Arrest, Police Report Doctored In Preliminary Hearing
by Jesse (OGP Gazette)
Wednesday Mar 21st, 2012 8:58 AM
Three Occupy Oakland activists, known inside the movement as Teardrop, Cincinnati and Nneka, were arrested on felony robbery charges aggravated by PC 422.7, the now infamous hate crime charge. Each was initially subject to $100,000 bond. The court has refused to lower the bonds on Cincinnati and Teardrop, who remain in custody since February 29th and May 1st, respectively. Last Friday, I attended a preliminary hearing in their trial.

The atmosphere of the courtroom was charged from the start. Instead of the usual one or two bailiffs, there were at least eight sheriffs standing guard. Instead of one defense lawyer there were five. All three defendants and the complaining witness sat behind the partition with their attorneys. At least twenty supporters sat in the audience, many of them wearing jeweled teardrops to emulate the tattoo from which Teardrop’s nickname presumably derives. As soon as the afternoon session started, the district attorney asked the judge to hear a complaint: Kelly Stowers, the alleged victim of homophobic slurs and robbery on February 22nd, told the district attorney that she had been mocked upon leaving the courthouse during a previous session of the preliminary hearing. The district attorney identified a man in the audience as matching Stowers’ description of a man who had yelled “That’s some story you’ve got there,” and who she identified as an Occupy Oakland supporter. Neither the district attorney nor the judge attempted to verify Stowers’ claim and the judge did not see fit to take any action. Sheriffs, on the other hand, quickly moved on the man, a tall fellow easily identified by a shock of electric blue hair. The sheriffs demanded he follow them outside and refused to tell him whether or not he was being detained. I rose from my seat to follow and was ordered by sheriffs, who were physically blocking my path, to stay inside the courtroom. As I demanded to hear the grounds on which I could be held captive inside a courtroom, defense attorneys Dan Siegel and Vylma Ortiz rushed to the rear of the courtroom. Three of the remaining sheriffs stopped the attorneys. In the argument that ensued, Mr. Siegel was threatened with arrest. The sheriffs were feet away from shuffling him through the courtroom door when Ms. Ortiz entreated the judge to intervene. “Judge!” she shouted again and again from the back of the courtroom, waving her arms, too stunned to articulate any further entreaty. According to an Occupy Oakland livestreamer who filmed the confrontation between the ejected supporter and the sheriffs in the corridor outside room 109, the sheriffs told him he was going to be charged for intimidating the complaining witness and therefore could no longer remain in the courtroom. He was not immediately remanded into custody.

“What we’re seeing here at the courthouse,” said Yolanda Huang, counsel for defense, “is the result of a movement. The sheriffs aren’t used to seeing this kind of resistance, this show of support. It frightens them.”

“Anyone should be allowed to come in to the courtroom and observe,” said Ms. Ortiz, “but the sheriffs are trying to to intimidate people out of doing that. They’re not just going after Occupy protesters anymore, they’re trying to reel their supporters into this too. Their behavior in the courtroom was far more aggressive today than it needed to be given the specifics of the case. They’re out of control.”

Judge Paul Delucchi did finally call the courtroom to order, and as Huang and Siegel cross-examined Kelly Stowers, a picture of the day in question began to emerge. February 22nd was a day of arraignments for Occupy Oakland protesters at Wiley Manuel Courthouse in downtown Oakland. According to Nneka’s mother Patti, a group of approximately two dozen left the courthouse after the day’s proceedings for Fenton’s Creamery on Piedmont avenue and then convened a protest at the nearby Wells Fargo bank. An altercation took place later, around 5:45pm, in front of Dr. Comics & Mr. Games and was initiated by Stowers herself. In Stower’s testimony, she saw one Black woman, one Black man and one white man standing together on the sidewalk shouting the words “Let’s start a fucking riot!” As she passed them on her way to Piedmont Grocery she said, “I’ve lived in Piedmont for twenty years and I know you don’t belong here,” to which Nneka responded “that sounds pretty fucking racist to me,” and to which Teardrop replied “we need to talk about this.” In the confrontation that ensued, Stowers’ Obama pin was allegedly ripped from the outside flap of her purse. Then, she alleged, she saw Cincinnati’s forearm emerging from her purse. She did not actually see him remove her wallet.

The process leading up to the charging of Nneka, Cincinnati and Teardrop is worth noting as irregular. Stowers made three separate police reports, none of which she wrote herself. The report taken the evening of the incident reads as follows: “While they were yelling at me, I recognized a man I know as Palmer, Sean.” Later in the report, the forearm protruding from Stower’s purse is identified as belonging to Palmer. Stowers admits, however, that she had never heard the name before she read the police report in court lat Friday, which she claims to have initially signed without reading. When shown Palmer’s face in a police lineup, she did not identify him. In fact, the man she identified in the lineup as having stolen her wallet was neither Palmer nor Cincinnati. The report also refers to a Black man who is much taller than teardrop and a Black woman who is significantly shorter than Nneka.

The next day, Stowers was called in to make a second report. This second report did not mention Palmer and did not describe Nneka’s physical stature, although it was nearly the same length as the first report. Cincinnati’s arrest was made seven days later, on February 29th, the same day that Stowers was interviewed for the purpose of creating a third police report. Nneka and Teardrop were arrested at Oscar Grant Plaza one day later, on March 1st, as they prepared to march in a national day of action to defend public education.

“Between the first two statements you get the feeling that the police have reviewed the livestream and realized that there were some problems in the first statement. The police reports make it pretty clear that they’re very familiar with the livestream and are on it within an hour of the incident looking for video,” said Siegel. When asked about the process leading up to the arrest of Cincinnati, Nneka and Teardrop, defense counsel John Viola said simply, “they have pulled these three in on purpose to punish them for protesting and to intimidate others.”

The final moments of Friday’s cross examination were perhaps the most revealing; during the altercation, a middle aged woman charged into Stowers and “chest slammed” her, screaming “did you call that girl a nigger?” Teardrop was allegedly yelling the same as the woman was pulled off by bystanders. Stowers admits that she may have responded by saying, “she was acting like a nigger.”

The preliminary hearing will conclude this monday, March 19th, in room 109. At least two witnesses are likely to be called to establish the defense counsel’s narrative of the altercation. The defense team believes the three defendants will likely be held to answer. Judge Delucchi will decide whether they are to be tried in front of a jury on felony or misdemeanor counts.

Light was shed today on the misidentification of Sean Palmer as we heard testimony from Officer Bryan Glick, the recent OPD recruit tasked with taking Stowers’ initial statement. When he arrived at 40th and Piedmont, the site of the incident in question, there was another officer already speaking with Stowers. Glick testified today that he read the statement aloud to her and allowed her to read it to herself before she signed. According to Glick, it was she who introduced Palmer’s name into the report: he had never heard the name before.

Furthermore, it was established upon further cross-examination of Ms. Stowers that she returned to Dr. Comics after the incident to inquire after her missing wallet. She denied this fact on the stand last Friday.

Mathias Bernarding, an arts educator who participated the in February 22nd Wells Fargo action, testified this afternoon to Ms. Stower’s behavior during the confrontation with the “ice cream three.” He allegedly became involved in de-escalation when he saw Ms. Stowers punch Cincinnati in the face. He further testified that Ms. Stowers shoved livestreamer Bella Eiko, an action which resulted in Bella’s ever-present iPad hitting the sidewalk. Bernarding referenced various photographs provided by the defense to illustrate what he described as escalating and “fight-baiting” behavior on the part of Ms. Stowers. He said that Stowers, an EMT, had recognized Cincinnati at the time of the incident as a former patient in the hospital where she works. He recalled her comments toward Cincinnati, who was living at Oscar Grant Plaza at the time of the incident, approximately as follows: “I know who you are, you’re a lousy human being and you don’t deserve to be treated at a hospital.”

The preliminary hearing is slated to continue on 3/20 at 1:30 pm in room 109. Judge and room number were incorrect in the original story and have been corrected here.