Friday's Trespass at the Metro Trial--Notes from the Defendant

ONE WOMAN SHOW
The trial began around 2:15 pm. Friday and lasted around an hour and a half. About a dozen people were in the courtroom watching the trial—including Sentinel reporter Jennifer Squires (who wrote a small clip about the case at http://www.santacruzsentinel.com/localnews/ci_12383944 ).

Presiding was Judge Ariadne Symons in Dept. 1, a former lead Santa Cruz County D.A. As Superior Court judge, she was found “unqualified” by the Commission on Judicial Performance before she was elected last spring. When she appealed that ruling, she was again found unqualified. Her performance at trial definitely showed her temperment was more that of a prosecuting attorney, at pains to defend police, rather than one concerned with defending the rights of the accused (or even balancing them against the claims of the prosecution).

No attorney from the city appeared to cross-examine the two witnesses against me (Security guard Danny Delgadillo and SCPD Officer David Albert). No matter--Symons herself seemed to relish taking on the job.. She frequently interrupted me and attorney Beauvais, maintaining a manner somewhere between austere and skeptical. Instead of letting the prosecution case stand or fall on the testimony of the police, she interjected herself with objections, arguments, questions. It felt like she was still largely locked in the role of D.A. though decked out in judicial robes.


NO TAPE RECORDING—AT THE METRO OR IN JUDGE SYMONS' COURT
Symons began by announcing she would not allow me or my attorney to make a recording for personal use, nor—more importantly—to record the trial for broadcast. She described my 15-year role as a Free Radio Broadcaster as “what is referred to as media”.

It's ironic. Later in the trial, the security guard claimed that his main motivation for having me banned from the Metro Center and criminally cited when I didn't turn off the tape recorder as I asked him to identify himself. At the very beginning of the trial, Symons seemed to have the same authoritarian sensitivity to being publicly accountable. Refusing to allow me to tape record the proceeding would delay if not defeat any attempt to give the public a clear record of her behavior in the courtroom, what she allowed as evidence, her tone throughout, and her attitude towards the case. In short, the lack of recording obscures the fact she was running interference for the police, the city, and the Metro Transit Authority.

Instead of allowing us to record, she suggested we buy a copy of the court-recorded audio, but had no idea how much it cost. Written transcripts of trials are notoriously expensive and far beyond the reach of poor defendants charged with “crimes” such as “trespass at the Metro” (i.e. conduct displeasing a security guard such as tape recording his inappropriate intrusions) and “sleeping outside after 11 PM) (the City's Sleeping Ban). If this trial was any indication, impoverished defendants will get no procedural sympathy or assistance from Symons.

Her job, of course, was to simply read the law to see if it actually applied to anything I did—and then to determine if I were guilty “beyond a reasonable doubt”.

FURTHER LIMITATIONS
Symons further informed my attorney, David Beauvais, that she would be limiting time and testimony on my case because it was “only an infraction”. Defendants are supposed to given the same trial rights in infraction cases as for more serious offenses, though not allowed a jury trial or a public defender. In return they are not supposed to be facing the prospect of jail (though many often are, for inability to pay fines or community service fees). She did so in a severe, perfunctory tone.

Symon's procedure if not her intent seemed designed to inspire fear and obedience through a clipped series of arbitrary sounding orders, in response to which she expected attorneys to scurry if not grovel.

COVER-UP CALVALCADE
The underlying issue in the case, the reason I went to the Metro that Sunday November afternoon, and the reason I refused to leave when told to do so was my concern about how Metro guards and SCPD were treating poor people and homeless people in public spaces. If an alternative media reporter seeking to investigate and document abuses gets threatened and cited, it's likely the same procedure or worse is being applied to those with quieter voices.

Lest some think false arrest behavior is simply an isolated “low level abuse” by a security guard, note the history of the case after Delgadillo's superiors were informed. The case was fully aired on audio tape back in November on the radio and archived on audio files at
http://www.radiolibre.org/brb/brb081106.mp3 and http://www.radiolibre.org/brb/brb081109.mp3 (download and fast forward through the show).

Vice-Mayor Rotkin and the City Council were informed. Rotkin, who's also at the Metro Transit Board of Directors and did raise the issue of “Metro rules” at a Board meeting, ignored public records act requests and took no effort to get this situation dismissed and clarify the limits of the powers of the Metro Security guards and the rights of the public. Delgadillo's Metro bosses were also advised of the event in repeated Public Records Act requests as well as citizen complaints. There was mostly no response until April 2009, when the Metro's legal counsel began coughing up documents like Delgadillo's report, the Metro rules, and pictures of Metro signs (not including the sign I supposedly “blocked”).

Instead of dropping the charges, apologizing, and retraining the guards to understand the limits of their authority, Metro stonewalled, the City Attorney took no action other than demand I supply documents (and then didn't show up in court), and Judge Symons continued to dog attorney Beauvais with prosecutorial questions and postponed a final decision until June 9th.

Why not? At the end of the road there seems to be yet another level of cover up, this time judicial. Judge Symons, cuts off the public's access to her own prosecution-sympathetic court process.

COPS IN COURT, BUT NO PROSECUTION—EXCEPT THE JUDGE
The background has been described several times on indybay. On November 2nd, two homeless men tried to get a security guard to turn off religious sermons being blasted over the loudspeakers at the Pacific Avenue entrance to the Metro Center. They were imperiously told to go away if they didn't like it. At their request, I confronted the same tall security officer. He directed me to leave the property and threatened me with arrest, then strode off to a private area of the Metro where I was prevented from following. He later apparently initiated the concerns that led a second security guard (Delgadillo to demand I leave.

Both Officer Albert and Metro Guard Delgadillo were in court. There was no formal prosecution present, which meant that the two cops were supposedly simply able to present their accounts and answer questions from the defense. They were not supposed to make legal arguments supporting their case. In the absence of a prosecuting attorney, the facts were supposed to speak for themselves. Apparently, John Barisone, City Attorney's secret weapon was Judge Symons part-time prosecutor.

My attorney anticipated the judge would grant a motion to dismiss the case for insufficient evidence after the two cops had spoken. There was no evidence that I was disrupting business at the Metro. The guard's only claims were that I was “blocking a sign” (which I later measured at being 6' wide) and tape recording his refusal to identify himself and demands that I leave. The police had filed under the wrong law—and even that law had a specific exemption for “first amendment activity”, which I was clearly engaged in as a broadcaster.

SYMONDS PUZZLES OVER THE ISSUES AND DELAYS DECISION
Symons refused to dismiss the case. Instead, faced with the weakened “blocking a sign” pretext, she turned to the “recording a guard” and tried to suggest that the guard had a right to object. He did, of course, but I still had a right to record him. And he had no right to arrest me, ban me from the Metro, and then drag me to court in retaliation.

Symons also didn't want to spend the time in court listening the fifty-five minute tape during the court hearing as she was “busy with other matters” (throughout the trial she was signing papers on other issues). The fact that a dozen other people had taken time out of their workday to come down and that the city attorney's office had wasted 8 months of public time and money pursuing a false arrest didn't make any impression on her. I suspect a second motivation might have been the embarrassment Symons would face with the clear evidence that the security guard was misrepresenting what happened and simply arbitrarily ordering me to leave—and the SCPD backing him up.

Instead of examining and acknowledging the evidence that there were no rules that I had violated at the Metro, Symons referred back Delgadillo's testimony that I had “recorded without permission” as a “evidence”. No such rule was posted nor mentioned in the set of Metro regulations which we put into evidence. (Such a rule would be unconstitutional in a public place anyway, particularly pertaining to an interaction between a police agency and a member of the public making their own recording as an objective record.)

MY TESTIMONY AND THE LEGAL ARGUMENTS
Over my attorney's initial objections, I insisted on testifying myself finally to clarify what went down—not always the best thing to do in a criminal case, but I felt the truth had to be told. I disputed Delgadillo's fabrication that he had even mentioned that his concern that I was blocking the sign and that he asked me to move. I challenged his claim that he had asked me to leave because there was a “rule” against tape recording. I challenged his claim that I had later gotten permission later to record at a subsequent protest visit (I never request permission to do what we have the right to do). Had I not done so, though the truth of the matter was evident from the rules themselves, Symons would have technically been able to rule that the best “evidence” was Delgadillo's testimony. She might yet rule that you have to petition, bow, and scrape for the right to give out a flyer at the Metro rather than simply be there and expect to be left alone—unless you're doing something unlawful.

My attorney David Beauvais made some strong closing arguments, clarifying that if two laws exist side by side in the same code about the same behavior and one is specific to the place—as is true in this case—the police have to cite under the code that is more specific. He made it clear that even under the wrong code I had the right to be there. He provided court decisions upholding the right to be in and audio record in public places and documentation that the Metro was a public area, not “a private business” as claimed by the security guard and the police.

Her decision is slated to come down June 9th 10 AM in Dept. 1. My attorney, seeing a rough draft of this story suggested I not be so critical of Symons before knowing her final decision. For me, however, the issue isn't her final decision, but that she proceeded at all and how she conducted the trial.

THE FINAL DECISION
We'll know about her decision in early June. My decision was made several weeks after the November 2nd arrest when I returned without permission to video, audio, flyer, and ask others if they'd been harassed. The story is told at http://www.indybay.org/newsitems/2008/11/25/18552885.php . I stood exactly where I'd stood before in front of a 6' wide sign (which I'd supposedly “blocked” before), this time with a group of people and some video rolling. The same security guard smiled at me and greeted me in a friendly manner, expressing no objection to my tape recording.

Six months later he went to court to accuse of criminal behavior for doing the same thing two weeks before. Delgadillo also stated that the security company he'd been working for had its contract terminated, and a new company hired (with him hired back). One would have hoped that such matters as the rights of the public and the powers of the guards would by this time have been clarified—and improper behavior corrected with past mistakes apologized for. Apparently not so. The trial went forward. And Judge Symons is still “considering” the matter.


PROBLEMS AT THE METRO?
If you've experienced harassment at the Metro or been ticketed by police lately for violating the anti-homeless ordinances downtown, please leave a message on indybay.org/santacruz, or give me a call at 423-4833.

There was also some discussion of the trial on my radio show last Sunday at http://www.radiolibre.org/brb/brb090517.mp3 (download and fast forward to the middle of the show).

I'm also interested in any experiences folks have had pro and con in Judge Symons' court (Department 1). Please e-mail me at rnorse3 [at] hotmail.com .