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SleepCrime Case Goes to Jury; Defense Lawyer Goes to Contempt Hearing for Dressing Down

by Robert Norse (rnorse3 [at]
My thoughts, with heavy editorializing, on the last day of the Gary Johnson trial. For the benefit of those D.A.'s prosecuting journalists for reporting on 75 River St., let me add that my viewpoint does not stand in the way of presenting useful facts to the public about these cases. I consider the public intelligent enough (however numbed, frightened, and distracted) to separate opinion from fact.
After about a dozen prosecution witnesses testifying to misdemeanor SleepCrime for activist Gary Johnson, Judge "Gouge the Grubby" Gallagher allowed only one defense witness to speak on Gary's behalf--community activist Smooth-Tongued Steve Pleich. Pleich who unexpectedly qualified as an expert witness.

Pleich revealed a long line of credentials and organizational positions including ACLU Board of Directors membership (while at the same time getting in a shot at the ACLU's inaction on this and virtually all other local civil liberties issues). He then highlighted and detailed the lack of significant emergency shelter compared to the number of homeless people in Santa Cruz each night--something the judge had originally sought to keep from the jury. His deliberate but rapid pace seemed to baffle the sleep-snatcher Prosecutor Shannon Murphy (and baby bumbuster Judith Jane Stark-Modlin, apparently in training who gave the closing arguments).

Still the two rights-wranglers managed to dredge up a couple of povertypimp professionals Monica Martinez, Executive Director of the Homeless (lack of) Services Center, and Tracy Heggum, mini River St.shelter boss,to muddy the waters with claims that had Gary showed up at 3 PM, on one of the nights he might have been able to get a bed. Apparently on Wednesdays and Thursdays there are occasionally a few beds available at the Martinez's Paul Lee loft (which go first to those on a six-week long waiting list), and on other days occasionally there are one or two beds at Heggum's place.

Martinez has been caught lying in public about her shelter policies, though always with a smile. She claimed publicly and falsely on Community TV last year ( [46 minutes and 45 seconds into the video file]) that homeless folks who got sleepcrime tickets could get letters attesting to a full shelter, those going there have found otherwise.

Additionally Nancy Lou Biscotti, the shelter manager, has specifically denied they give out such letters (which used to be issued without fanfare under previous directors Ken Cole and Doug Loisel). Not only was this a lie about policies as of August 2011, when she spoke, but her promise to issue such letters in the future was also untrue--as HUFF activists who tabled at her "campus" confirmed in late January.

"Campus" is Martinez sweetspeak for the closed-at-night, open-only-to-those-with-business during the day 115 Coral St. operation. The Martinez management has also set up a "No-Impact" zone around the area, threatening homeless people who linger on the sidewalks nearby in order not to offend the sensitive bigotry of nearby Not-In-My-Backyard neighbors and businesses.

Unfortunately attorney Ed Frey, much overburdened with other Occupy Santa Cruz and sleepcrime prosecutions as well as ill health, didn't bring this up (nor was I sharp enough to realize this at the time).

"Gouge the Gritty" Gallagher himself seemed to be somewhat defensive himself, wavering from earlier rulings that would have required Gary to prove he would have gone to a shelter had he had the opportunity. Gallagher missed or ignored the point, highlighted in the famous Jones settlement in Los Angeles overturning their sleeping ban, that if shelters are obviously insufficient, there's not much point in trying and no requirement that an individual seek shelter to prove the 'necessity" defense.

That defense, consisting of six elements, requires the defendant by a preponderance of the evidence that this conduct (1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency.

More on a successful homeless case at .

Locally the necessity argument was made informally and successfully in the case of then-homeless medical marijuana advocate Craig Canada back in 2007 ( where Canada argued that the Homeless (Lack of) Services Center banned in from shelter because of his doctor-recommended use of marijuana for medical conditions resulting in a necessity to sleep outside. Unfortunately in what appeared to be a political reversal, when police subsequently ticketed Canada for the same life-sustaining behavior (sleeping), Judge Denine Guy reversed her opinion for no apparent reason.

Witness Becky Johnson was not allowed to testify even though she agreed to risk prosecution cross examination on the false felony charges she is facing in the 75 River St. case. I and Linda Lemaster decided we couldn't contribute enough to the case (given the judge's ruling that shelter and necessity-to-protest issues could not be brought in) to make it worth testifying, but would have been excluded in any event.

Describing his closing summation afterward, Frey recalled “Gary Johnson just as much as anyone else in California, owns that property, doesn't need permission to be there, one of the elements of crime of lodging. The judge did us a big favor in what he said to the jury even before we started picking. Every time Gallagher's had a jury, he goes out to the hallway in his robes and invites people in, saying 'I just work here, this is your building'“ Frey recalled that he then echoed the judge's opening statement reminding the jury that the people, not the deputies or CAO Mauriello, owns the building where the alleged “lodging” and “trespass” crimes took place. “This is your building.” The D.A.(s) objected and Grim-Gavel Gallagher warned Frey never to repeat this statement.

Further points raised in his closing summation: “The audacity and insanity of the law that makes it a crime to sleep.” His summation was initially interrupted with a sustained objection from the D.A. But as he continued, the judge seemed to allow the very arguments he had struck down. Could Gallagher be feeling the pangs of doubt, Frey wondered.

The closing prosecution statements were read by the new D.A., Stark-Modlin, who had said little during the trial. It was, Frey reported, a color-by-number litany of the elements of the sleepcrime, how many times arrested, etc.

The jury is due to return to court for deliberations around 9 AM today. It's unclear how long they'll be out for, though an active conscience on just one juror could create a hung jury. I guess we'll see how dead the spirit really is in Santa Cruz among those roped in for jury duty. Frey noted that in the original panel there were some who spoke strongly about the absurdity in of a sleepcrime trial and the right of the jury to throw this out. Judge G. responded to these concerns about cost and conscience by immediately removing the offending voices from the jury panel before the trial began.

In a final thrust at Frey, the judge said he was going to hold a contempt hearing on April 29th, because Frey did not wear a suit and tie to court, showing “disrespect” for the court (after Gallagher had earlier instructed the outspoken attorney on proper attire for sleepcrime trials). I don't recall Judge G objecting to my bathrobe and teddy bear when I came into his court earlier in the week, but perhaps he's trying to set a new and higher fashion standard. Nor did he object to Johnson wearing his jail clothes (presumably to bring home to the jury--not allowed to know he was facing 4 years if convicted) that he was a prisoner and not a willing participant in the proceedings.

Frey and Johnson's previous "lodging" sleepcrime convictions (also in Gallagher's court) are currently on appeal. Johnson is will continue to be held in jail on $5000 bail because of GrimGavel's refusal to believe Johnson that he will obey all laws.

Previously when Johnson asked how he could do that when sleeping (a necessity) was described as lodging (a crime), the dour judge retorted, "you can sleep in jail."

I just got a call from attorney Ed Frey who passed on the bad news.

About an hour after assembling, the jury returned a guilty verdict on all four counts--making Gary Johnson liable for 4 years in jail for the "crime" of four times sleeping on a bench next to a small sign reading "Sleep is Not a Crime".

The judge also insisted Frey remain in court rather than leaving him free to talk with jurors to explore the reasons for their verdict, which is customary and perhaps a matter of right. He also reportedly banned Frey from talking with jurors later.

Judge Gallagher slated the sentencing hearing for 8:30 AM, Thursday March 29th in Dept. 2.

Sentinel reporter Jessica Pasco may be writing a story on it later, Frey noted, since she was there.

Frey noted Gallagher banned raising the necessity defense in terms of one person defending others, as some saw Gary's political protest.

Said one observer, " The judge did his job, told them the judge's truth, the whole judge's truth, and nothing but the judge's, so help us all gawd."

Frey noted the jurors looked somber as they left. "In my opinion, [because of Judge Gallagher's rulings] the jury had no idea what was going on."
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John Colby
Tue, Mar 27, 2012 2:47AM
Fri, Mar 23, 2012 4:59PM
Fri, Mar 23, 2012 4:29PM
by J. Pasco (posted by Norse)
Fri, Mar 23, 2012 11:55AM
Fri, Mar 23, 2012 7:34AM
Robert Norse
Thu, Mar 22, 2012 11:10PM
Thu, Mar 22, 2012 6:16PM
Thu, Mar 22, 2012 6:08PM
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