Activist Convicted of Marching in Parade

Outside the courtroom, supporters listen as Wes responds to the decision of Judge Jeff Almquist.

10-15 people attended Modes' Hearing in Judge Almquist's court, some from a considerable distance.

The hearing, though schedule for 8 AM, was apparently trumped by the swearing in of two conservative new judges for Departments 1 and 2 --Gallagher and Connolly--whose ceremonies were scheduled according to the Sentinel for 8:30 AM.

The ceremony was moved up, and the audience for regular judicial proceedings made to wait for half an hour. Almquist held the cremony behind locked doors in Dept. 5, the same court Wes later had his hearing in. After some knocking, the Sentinel photographer finally got in.

City Attorneys Barisone and Barisone (both husband and wife) are at the top of the city's payroll, as well as being city attorneys for Capitola as well. Neither they nor their underlings bothered to appear in Almquist's court, though Wes was ordered to appear. Makes sense--why bother to show up when the Judge is apparently on your side from the getgo?

In the prior trial (see "People v. Wes Modes: Trying to Remove DIY from Santa Cruz" at http://www.indybay.org/newsitems/2010/07/18/18654218.php), Almquist, over defense attorney Gettleman's objection, refused to allow a court recording, a media recording, or a recording for private use.

Almquist repeated the media blackout he'd previously supervised in the "Singing Homeless Songs Downtown a Crime" trial--see "Notes on a Sinister Sidewalk Singing Trial at http://www.indybay.org/newsitems/2010/04/22/18645414.php) by refusing to allow an official (or unofficial) recording to be made. Refusing to allow a court recording or recorder to be present leaves the defense with a more difficult task establishing an appeal record. It also makes accurate media description of the judge's behavior harder.

Almquist rejected Gettleman's afidavit outlining the onerous city procedure for getting a permit as "hearsay", "irrelevant", and "hypothetical" (See http://www.indybay.org/newsitems/2010/08/02/18655182.php?show_comments=1#18655322) for Gettleman's brief against the law).

Almquist rejected the proof that the application costs were onerous on the technicality that the costs were for June/July 2010 instead of December 2009, though I saw no indication the costs had changed.

Almquist insisted that "the only real purpose" of the parade was to march without a permit, which, of course, was ridiculous. The purpose was to have a New Year's celebratory parade which the city could no longer finance. But apparently wanted to move in, control and coopt once it became successful.

Almquist rejected a constitutionality challenge to the ordinance by claiming the law as "content neutral", "narrowly tailored", and "served a substantial government interest--all key requirements for a law to avoid being struck down as violating the First Amendment. However Almquist gave no specifics, apparently simply parroting the City Attorney's response brief (see http://www.indybay.org/uploads/2010/08/10/city_s_response_to_contitutional_brief.pdf). Without providing any specifics, Almquist accepted Barisone's allegation that the law conferred "no unfettered authority on city officials".

Almquist's opinion was also not written, so it could not be more closely examined (nor could his words be later scrutinized for, as mentioned before, he allowed no recording).

Regarding the claim of selective prosecution (that only Wes was cited though many others were likely "guilty" of the "crime" of knowingly walking in a parade without a permit. Almquist denied that Wes was singled out as an individual and part of a protected class--two requirements. He also made the confusing claim that Wes had not found others who were clearly guilty of the crime, but not cited--when in fact, that's just what two witnesses testified to. Some had actually gone to the trouble of contacting the City Attorney to confess.

One important concern was whether this "conviction" would be used to send Wes to jail for violating a sentencing condition in the prior "Drum-de-dum-dum" case (see http://www.indybay.org/newsitems/2008/09/17/18539316.php ).

When asked to finalize and acknowledge, Wes's 500 hours of community service on the prior "drum assault on an officer" charge, Almquist declined to make a statemen. Instead he postponed any discussion of the issue until November 30th. Seemed to me like this is an attempt to maintain an atmosphere of intimidation that will discourage Wes from any kind of public activity that could possibly be considered a violation of any of the city's massive spiderweb tripwire of ordinances restricting the use of public space.

All of this was done in a perfunctory manner with no real dialogue with the defense.

It also appears that Wes doesn't have the resources (and possibly little appetite) for an appeal of any of these outrageous rulings.

Our loss.

Thanks for taking the fight this far to Wes, Gettleman, and his supporters.

My trial and Robert "Blindbear" Facer's for Sinister Sidewalk Singing resumes in September 2nd Dept. 10 at 1:30 PM. Join us to watch more Justice in Action.