Drumming Sticks & Magic Markers – the Good Guys Win

CHP and Sacramento DA Lose in Prosecutions of Young People Who Fight for Their Rights in Court

By Crescenzo Vellucci

Think of the crimes of drumming sticks and magic markers. Really.

The California Highway Patrol – which has taken lots of heat recently for allowing a riot to happen at an Alt-Right Capitol rally in 2016 – has seemingly been trying to make up for it with a series of arrests of people for doing just about nothing.

In fact, the CHP may have made arrests, and the Sacramento County District Attorney did decide to pursue them, but both agencies have been on the losing side in two recent, low-profile Sacramento County Superior Court cases.

In the first “case” – and we use that term loosely – taxpayers ponied up tens of thousands of dollars for a misdemeanor trial of a barely-of-voting-age jazz band member who wandered into a West Steps Capitol protest in January with drumming (technically, percussion) sticks he had planned to use later at band practice.

The next thing Austin Martin knew he was handcuffed by the CHP, led to a waiting patrol car and transported to the Sacramento County Jail, booked and incarcerated.

Martin, with no record, had been charged with a “weapons” violation for carrying drumming sticks. The CHP also tossed in a charge of “resisting arrest” because he didn’t walk fast enough when
officers yelled at him near the Capitol West Steps.

Eight months, nearly a dozen court appearances and a weeklong trial later, Martin – in a trial many defense lawyers interviewed swore would “never happen” – was found not guilty by a jury.

The CHP said, in its report, they spotted the “deadly” drum (percussion) sticks in Martin’s pocket and determined that they could be used as a weapon, although drumming sticks are not listed in the state penal code as weapons.

Martin didn’t even brandish them – he said that he would have only used them for making noise at the protest (maybe), and for band practice later, of course. To be fair, the sticks could have been used as a weapon, but so could a pen that reporters use to take notes.

Lawyers – private defense attorneys and some in the public defender’s office (none of whom would go on the record) – insisted the case would “never” go to trial, that it was absurd, especially given the fact that Martin had no record, did not use the sticks and was otherwise a passive protestor.

They were quite wrong. The state threw its might at Martin, threatening him with years in jail in an attempt to intimidate him into taking a deal. His public defenders cautioned him that juries are “not good” in Sacramento (that is true, 80 percent or more cases that go to trial don’t end well for defendants) and that he should accept the offer.

But Martin, whose friends and family stuck with him, walked out a winner when the jury rejected the District Attorney’s argument that somehow someone should know carrying “hidden” percussion drumming sticks was breaking a law.

The young man had to endure the pressure of the judicial system to get his day in court. About 95 percent of cases in most jurisdiction never get that far – most take deals, guilty or not, to avoid trials.

It was a case for his public defender to lose – no real evidence, no motive, no real supporting law except an overly broad and vague “weapons” statute. And even the CHP officers in court admitted Martin had been a model arrestee and didn’t resist. But if the PD had lost – she called only one witness for Martin – it would have changed this young man’s life forever.

But the jury rejected the CHP’s testimony. It was, In short, a happy ending.

Next up – CHP case No. 2, which involves four 20-or under something college interns arrested by the CHP six months ago for sitting on the Capitol steps at night. No crime, but the CHP searched them and found magic markers. They were charged with “attempted vandalism” and like Martin forced to attend a long series of court dates all summer.

In fact, the original charge the DA chose to pursue was a felony.  A judge who arraigned them laughed when he saw the young clean-cut quartet, and described them as the “next boys band” –  and bumped the case down to misdemeanor court.

The DA offered them a “deal” – no jail time except for the hours being booked, and “diversion,” where they pay for a class and charges are dismissed. Great offer – if you did something wrong. They swore they didn’t. They had magic markers, they claimed, because they had been making signs for the association where they interned.

In the end, after months of the students refusing to be bullied into taking a deal for doing nothing wrong, the charges were dismissed outright – just a few days before the trial was to begin.

That was only after the students’ lawyers, with the help of Linda Parisi, a top criminal defense lawyer, law school professor and National Lawyer Guild pro bono volunteer, presented the court and DA with the students’ honor roll transcripts and stellar community service.

Lawyers interviewed (again, they all refused to go on the record, some because they feared repercussions by the DA’s office) said the Sacramento County DA office over the past year is “prosecuting everything,” even nothing cases like the ones recounted here. Bullying innocent people usually works – but these young defendants fought for their rights. And won.

Some said the District Attorney may be wanting to pad her conviction rates to look good in the coming 2018 election, even at the expense of young people who have done nothing wrong.

One veteran court reporter said that these types of cases are an affront to “justice,” and more important in their own way than the almost daily homicide cases that are the “sexy” stories that draw media interest.

But, at least in these two cases, the “good guys” won. And the DA, and the CHP, came out on the losing side. The only other losers are taxpayers, who pay for these types of bully prosecutions, which are seldom publicized so the “people” have no idea of what’s going on in their name.

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