Assistant D.A. Files Motion to Recuse Judge Burdick--Again

Thursday's pre-trial set conference did not go as expected. Rather than finalize details for a jury trial to begin on March 10th, Judge Paul Burdick became increasingly frustrated at ADA Greg Peinado for refusing to discuss reducing felony charges or to consider lowering the $23,600 restitution sought by Wells Fargo. When it appeared Peinado was claiming he did not have the authority to do so, Burdick ordered the hearing continued to 1:30PM on Friday and told Peinado to "bring someone from the DA's office who has the authority to reduce charges." The idea was floated that if 50 to 150 people were involved with the building takeover, dividing up the $23,600 works out to $157 apiece. Burdick refused, however, and said these four were 'vicariously liable'. He suggested supporters "host a concert" to pay Wells Fargo off.

Peinado was obsessed with payment, and called for money upfront, even before a trial of the facts. This is done in some cases where a severe hardship would be imposed on the victim if an early payoff were not made. But when the victim is Wells Fargo, the world's most profitable corporation in 2014, this is not the case. In fact, Wells Fargo, with $236 billion in assets, as compared to the Santa Cruz Eleven defendants, of which two are homeless, this request is not only unusual but Dickensian as well. And it may not be legal: extortion under the color of law. A move Defense attorney Jesse Rubin called out as "paying for a misdemeanor."

Four defendants remain in the Santa Cruz Eleven case stemming from a 3-day, peaceful occupation of an empty bank building leased to Wells Fargo. Defendants are accused of turning said building into "A Community Center." The building, site of the former Coast Commercial Bank of Santa Cruz County ( and victim of a buyout by Wells Fargo), had been empty for 3 1/2 years at the time of its takeover in late November of 2011. Now it's been empty for over five years.

District Attorney, Bob Lee, has chosen not to prosecute Wells Fargo for predatory loan practices, indefensible foreclosures (over 8,000 in Santa Cruz County), or for defrauding loan recipients. Nor is he interested in Wells Fargo's Mexican Drug Cartel laundering of drug money. Instead he is vigorously prosecuting the activists who were trying to call attention to these practices. And he's doing Wells Fargo's bidding (the victim) at massive public expense, estimated at $200,000 and counting since no trial has taken place.

While the damage to the empty building was negligible (activists had consensed to a non-vandalism policy and had cleaned up prior to exiting the building peacefully),
Wells Fargo managed to trump up over $25,000 in "damages" which were accepted without further investigation by Lee's office.

At that time, activists loosely connected with the Occupy movement, took over the building briefly, in an attempt to publicize the consequences of Wells Fargo's foreclosure profits, predatory lending practices, and rigged system. Wells Fargo was able to make more profit off of the building being empty than it ever could by renting it out to a legitimate tenant. As Santa Cruz County suffers from lack of employment opportunities, and many good businesses and organizations cannot afford the extremely high rents placed on these empty buildings, the whole community suffers while Wells Fargo profits. The State nets only $40,000 a year in property taxes off of the 75 River Street property.

Homelessness is on the rise in Santa Cruz County and banks are certainly the likely culprits, with the number of empty housing units rising from 2000 in 2009 to 3000 in 2012. One of the purposes of the protest was to call attention to the economic fallout caused by banks unethical and immoral practices which result in the evictions of real people, grandmothers and families and leave 9.81% of the homes in Santa Cruz County vacant. Nor are things getting any better; foreclosures in California are up 57% from 2013.

Back in 2011, The 75 River Street property was so low on Wells Fargo's priority list, that on the day of the occupation, they had to call an over-the-hill supervisor to formally inform the Santa Cruz Police Department that they wanted people removed from the building. At first, Wells Fargo refused, wanting to order the police via telephone. Santa Cruz police administrators insisted that a person actually in charge come to the site, a process that took several hours or more. It was still unclear after two preliminary hearings exactly WHEN the SCPD was legally notified that they wanted police to remove people from their building. This undoubtedly will become an issue for the prosecution when or if the Santa Cruz Eleven go to jury trial.

On Friday, no discussion of charge or restitution reduction took place. All came to a sudden halt as ADA Greg Peinado filed a 170.1 motion to recuse Judge Burdick, the third such motion in this case, yet so unusual that one of the defense attorneys suggested the ADA was "judge shopping." ADA Rebecca Young, prosecutor at two previous preliminary hearings, tried recusal motions twice, both unsuccessfully. Young has since left the DA's office. Given 10 days to respond, Burdick estimated that with at least 30 days required for any sitting judge to respond, the case had effectively been postponed a minimum of 40 days.

Pineda seemed unsure of what the procedure for a 170.1 motion. The Judge had to explain to him that his motion had just stopped all proceedings until the motion could be answered and heard by another sitting judge. Nor was all well outside of the recusal motion. The D.A.'s office still hadn't handed over all the transcripts, video, and other discovery (shades of Rebekah Young) even though March 3rd or 4th was the firm trial date to begin jury selection and the defendants had been facing felony charges for over two years and counting, plenty of time to turn over discovery. Peinado claimed he has even more discovery and "evidence" including a witness list of nearly 50 people.

"Even my mother was listed," cried defendant, Gabriella Ripley-Phipps. The defense wants another 30 days to read all the transcripts as well.

Peinado also discussed getting "a verified declaration" from Wells Fargo considering that the giant corporation was "not a proto-typical witness." This all looks like Wells Fargo will not be in court at trial to testify against the defendants, a process that could well backfire for Wells Fargo.

All this adds up to more time lost, more money wasted, more disorganization from the DA's office, and justice delayed is justice denied. This case is so flimsy, that of the 11 defendants initially charged, 9 have had their charges dismissed at their preliminary hearings. Only two were carried over for trial. DA Young, for unknown reasons, refiled charges on Cameron Laurendeau and Franklin "Angel" Alcantara to make four defendants on trial. Previous defendants who no longer face charges (unless the DA refiles against them) are Alex Darocy, Bradley Allen, Desiree Foster, Grant Wilson, Robert Norse, Edward Rector, and (this writer) Becky Johnson.

While the only common thread between these defendants is that police placed them inside the building at some point, many people were also seen inside the building, some on police reports, that have not been prosecuted. The most obvious of all was councilmember Katherine Beiers. But she was not the only one. Schmuel Thayer of the SENTINEL took pictures inside of the building. ACLU member Steve Pleich was in the building according to police reports. Councilmember Micah Posner says he was in the building. Santa Cruz Patch photographer, Alex Hubner was in the building. Paul Johnston and Ed Frey were in the building. And City Manager Martine Bernal was in the building. None of them were charged although their behavior was no different than the defendants who've had their lives turned upside down by these highly selective charges.

Finally, one of the contractors Wells Fargo manager, Alicia Bucher hired is willing to testify that the invoice submitted by his company had a few thousand dollars "padded" onto it. Is that why Bucher contracted with a San Francisco company called ServiceWest to remove "destroyed/damaged" furniture? Invoice claims Wells Fargo paid $6,545.41 to this company. Or an invoice from Restoration Management Company of San Francisco for "bio-hazard clean-up in utility room." Cost? $6,222.88 I call it the Shit heard 'round the world.

While DA Bob Lee continues to paint those who occupied an empty bank building peacefully for three days as "vandals" "felons" and for "violating private property rights,"in reality, they were whistleblowers demonstrating against the excesses of a banking system that would let a million dollar building sit empty for five years in a City that desperately needs jobs, services, and a tax-base to support City services. Wells Fargo is NOT a good neighbor. They are profiting at the City of Santa Cruz' expense leaving our community poorer, with more homeless people, with fewer owner-occupied dwellings, and more properties owned by the banks instead of real people. In a County which lost 48 homeless people in 2013, Empty Buildings are the Crime.

The next hearing for the Santa Cruz Eleven is scheduled for March 26th at 8:15AM. See: https://www.facebook.com/SantaCruzEleven and http://santacruz11.wordpress.com/ for regular updates.