Santa Cruz Homeless Update - (fwd) SleepCrime Case Goes to Jury; Defense Lawyer Goes to Contempt Hearing for Dressing Down

[me]

(see http://groups.yahoo.com/group/huffsantacruz for other updates)

http://www.indybay.org/newsitems/2012/03/22/18709872.php
http://groups.yahoo.com/group/huffsantacruz/message/2077


SleepCrime Case Goes to Jury; Defense Lawyer Goes to Contempt Hearing
for Dressing Down
by Robert Norse ( rnorse3 [at] hotmail.com )
Thursday Mar 22nd, 2012 7:00 AM

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.
MANY FOR THE PROSECUTION, ONE FOR THE DEFENSE
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).

THOSE ILLUSIVE SHELTER BEDS and THE MERRY MACHINATIONS OF MONICA
MARTINEZ
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 (http://blip.tv/videos-posted-by-ken-knobler/
vftv-8-14-11-homellessness-in-santa-cruz-5505386 [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.

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 http://www.thestreetspirit.org/June%202005/arcata.htm
.

Locally the necessity argument was made informally and successfully in
the case of then-homeless medical marijuana advocate Craig Canada back
in 2007 (http://www.indybay.org/newsitems/2007/10/01/18450882.php).
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.

DEFENSE WITNESSES EXCLUDED
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.

CLOSING SUMMATION
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.

EARLIER JURY EXCLUSIONS
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.

CONTEMPT FOR DRESS-CRIME
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."