Representatives for the defense in the misdemeanor case against bank blockers on Thursday indicated that they were not inclined to take any plea offer in this case, as that would be tantamount to acceptance of the criminalization of dissent.
Tim Kreiner, a media spokesperson for the defendants told the media Thursday morning, “It was rejected in part on the grounds that any continuance of prosecution is a wrongful attempt to prosecute political speech on campus.”
“I think the fact that there are charges at all is a bit of a sham, and it’s unfortunate that the university administration feels compelled to try to prosecute its own students or at least refer its own students for prosecution for political dissent on campus,” Mr. Kreiner said.
UC Davis spokesperson Barry Shiller responded, “The last thing in the world you want to see is 11 students and a faculty member facing charges – even misdemeanors that reportedly could be resolved through community service and no jail time.”
“It’s vital to remember that the charges were filed only after campus police received multiple complaints from students and others alleging that they had been prevented from entering or leaving the campus U.S. Bank branch,” he said. “And the blockades continued despite 12 attempts – six in writing – by campus staff to educate protesters about the risks of continuing their actions.”
Posturing aside, a critical issue comes down to that of restitution – which while the university has rejected, the bank has not. Apparently the DA is either unwilling or unable to enter into a stipulation as to what the amount of restitution could be in this case.
That would be determined by the judge upon sentencing.
It is ironic that about this time, the Third Appellate District at the end of April ruled in the People v. Ronald Snow, which was a felony case out of Yolo County where Judge David Rosenberg awarded the victim nearly $45,000 in restitution for, among other things, dental bills incurred by the victim when the defendant damaged the victim’s teeth when punching her.
Mr. Snow would enter into a plea agreement where he would plea to false imprisonment only – the other charges which included felony corporal injury on a cohabitant, dissuading a witness, criminal threats and assault by force likely to cause great bodily injury would be dropped.
He thus was placed on probation, conditioned upon his serving 120 days in county jail and paying the victim restitution as determined at a restitution hearing.
Mr. Snow contended that the evidence does not support the victim restitution award of $44,994.85 and asked the court to “reduce the award by $33,280, the amount attributable to the hours the victim was out of work from August 1, 2005 to May 15, 2006 because of the injury to her left eye, and the medical bills related to the same injury.”
Mr. Snow argues there is insufficient evidence that the “conjuctival cyst” the victim had removed from her left eye was related to his crime.
Mr. Snow argued expert testimony was needed in order to reach a conclusion that the eye injury was caused by him. The trial court disagreed, as the victim testified that the eye only began to hurt after the attack by defendant.
Under the 1979 Harvey court decision, “A defendant who signs the typical waiver form agrees to allow the sentencing judge to consider his entire criminal history, including any unfiled or dismissed charges.”
In this case, because the assault charges were dropped, the defendant “contends that restitution is barred by the Harvey rule.” The appellate court disagrees.
Most notably is that through the Harvey waiver, “defendant gave up his right to contest such damages even though no charge in the case related to the punch that jarred the crown loose. Under Harvey, the sentencing judge can consider defendant’s entire criminal history in determining restitution, so the trial court’s award was affirmed.”
We will leave it to the attorneys to figure out whether this appellate decision has a great impact on our current case. However, from this layman’s perspective, it would appear that copping a plea in the bank protesting case would leave the defendants vulnerable to a restitution order and if the DA is unwilling or unable to reach an agreement there, this case will inevitably have to go to trial.
Not that this is exactly a surprising development. It seems likely that luminary attorneys such as Tony Serra, Dan Siegel, Stewart Katz, and Alexis Briggs along with Yolo County Public Defender Ron Johnson would not have been brought in if the defendants had intended to cop a plea.
However, the DA’s steadfast demand for restitution in these cases likely will make it less likely to reach plea agreements.
Meanwhile the rhetoric here leads us to believe that the issue that will be litigated will be the limits of free speech and the right to dissent.
On the other hand, UC Davis Professors Alan Brownstein and Vikram Amar argue, “A blockade is not constitutionally protected speech. It is conduct that government has always had the legitimate authority to proscribe because it so obviously obstructs the liberty and lawful pursuits of others.”
They add, “One critical reason blockades can be prohibited is that they are employed to coerce behavior, not change minds. They are thus antithetical to the values on which freedom of speech and academic freedom are grounded – a commitment to the power of ideas rather than the use of force to change the way that people act.”
“Indeed, if obstruction or disruption were protected expressive activity, it could be used to silence other speakers,” they argue.
Alexis Briggs argued that the two professors appeared to be making legal conclusions about the conduct of the protesters.
She said, “I’m curious as to whether those legal conclusions are based on their observations – were they present? Were they privy to some information regarding the conduct? Or are they speculating?”
“As professors at a school named after Martin Luther King, Jr.,” she said, “I am disappointed to hear that the only statements coming out of the professors at King Hall appear to be conclusory, speculative, and premature.”
As we noted, the defendants seem to be arguing that this prosecution amounts to an attempt to criminalize free speech and protest on campus.
If that is the case, we at least end up with an interesting debate that will likely have to go up the appellate ladder to be resolved.
—David M. Greenwald reporting
Apologies, I tried to make a change and the entire post collapsed. So I am reposting all comments here.
From Greg Kuperberg:
I have seen no real argument that the bank protest actually was free speech, other than by simply talking as if free speech and civil disobedience are one and the same thing. The argument that this was valid as civil disobedience often invokes the claim that banks are greedy for student debt.
However, especially in the case of US Bank at UC Davis, this specific theory of bank greed is wrong. US Bank has taken major steps [b]not[/b] to profit from high tuition at UC Davis. You cannot use a US Bank card to pay tuition at UC Davis. US Bank also just stopped issuing student loans. And in the US as a whole, the entire private student loan market has substantially collapsed.
See
[url]http://www.theaggie.org/2012/05/10/guest-opinion-the-collapse-of-private-student-loans/[/url]
From E Roberts Musser:
[quote]On the other hand, UC Davis Professors Alan Brownstein and Vikram Amar argue, “A blockade is not constitutionally protected speech. It is conduct that government has always had the legitimate authority to proscribe because it so obviously obstructs the liberty and lawful pursuits of others.”
They add, “One critical reason blockades can be prohibited is that they are employed to coerce behavior, not change minds. They are thus antithetical to the values on which freedom of speech and academic freedom are grounded – a commitment to the power of ideas rather than the use of force to change the way that people act.”[/quote]
[quote]Alexis Briggs argued that the two professors appeared to be making legal conclusions about the conduct of the protesters.
She said, “I’m curious as to whether those legal conclusions are based on their observations – were they present? Were they privy to some information regarding the conduct? Or are they speculating?”
“As professors at a school named after Martin Luther King, Jr.,” she said, “I am disappointed to hear that the only statements coming out of the professors at King Hall appear to be conclusory, speculative, and premature.”[/quote]
Or is Alexis Briggs just disappointed that the law professors are stating the obvious: the law appears to be on the side of the prosecution and not the protestors?
[quote]As we noted, the defendants seem to be arguing that this prosecution amounts to an attempt to criminalize free speech and protest on campus.[/quote]
Pretty weak argument… but there is always the hope of jury nullification despite the law…
From Mr. Toad:
I am not a lawyer but I believe a no contest plea will take care of the chance of any civil claim against them. They should bargain it down to an infraction and a small fine. The entire thing can be settled for the cost about 1 hour of legal time and everyone can get back to other things like studying.
Making this into a show trial is a big waste of time, besides, do they really want to challenge a precedent precipitated by Randall Terry blockading woman from getting health care and abortions. Of course I haven’t seen the tapes either so I can’t weigh the evidence but it just seems like a big waste of everyone’s time.
From Greg Kuperberg:
Mr. Toad – That’s a good point, that they are following in the footsteps of Operation Rescue.
From Just Saying:
“Posturing aside, a critical issue comes down to that of restitution – which the university has rejected, but the bank has not. Apparently the DA is either unwilling or unable to enter into a stipulation as to what the amount of restitution could be in this case.”
Who is advancing this sympathy-appealing, million-dollar restitution concept? The spokesperson explained the logical reason for their reluctance to agree to plea bargains, a desire to keep the blockade in the limelight with the “wrongful attempt to prosecute political speech on campus” approach. These kids are now caught up in something much bigger than themselves and their original protest.
I presume they’re enjoying the added notoriety. But, I hope they’ve weighed the likelihood that they won’t be found not guilty pursuing their “campus political speech,” publicity-grabbing defense.
From Me:
JS: I believe there are two issues one is the criminalization of speech. The other is restitution. Realistically you could argue eleven years is not a realistic maximum penalty because no judge is going to stack misdos for first time offenders. However the million figure is more likely to be real if they holds the protestors responsible for lost wages a d bank profit. The fact that they have little control works against a settlement here.
From E Roberts Musser:
[quote]I believe there are two issues one is the criminalization of speech. [/quote]
I don’t believe that is the issue at all, but it is what the defense would like us to believe is the issue – so that a jury will be distracted from the real issue. As the law professors pointed out, the real issue is blocking a bank from doing business, and is not protected speech, but rather is coercive behavior antithetical to free speech.
“it is what the defense would like us to believe is the issue – so that a jury will be distracted from the real issue. “
I don’t think that’s the case. I think the defense honestly believes what they are saying. Besides, a jury isn’t going to be distracted by this, they will pick a jury unfamiliar with this issue and the jury will be read the law.
I’m pretty much with you on this, Elaine. This has been moved into the 100% political arena. It may be that the “criminalization of speech” is partly an attempt to get a jury to acquit. But, from the civil liberties movement viewpoint, the trial result is a minor issue.
The students were, first, a tool of Clover and his radical associates; now, they move to becoming a tool of the bigger, Occupy operation–what better representatives than kids who “face” 11 years in prison and million-dollar fines.
Free speech was overwhelmed when they purposely, knowing broke laws for weeks on end. Try as the attorneys might, a jury will do its best to apply the law and that doesn’t bode well for the defendants.
The sad thing is that a guilty finding will result in more serious sentences than the plea bargain would have (which will increase the students’ value as victims). A standard anarchist approach to fight power, used for centuries for both good and unworthy causes.
By the way, has anybody noticed that the massive May Day Occupy rallies across the country have been completely ignored by the mainstream corporate news media? All those folks who get 100% of their news from Fox now think the Occupy Movement just went away. NOT !
[quote]I’m pretty much with you on this, Elaine. This has been moved into the 100% political arena. It may be that the “criminalization of speech” is partly an attempt to get a jury to acquit. But, from the civil liberties movement viewpoint, the trial result is a minor issue.
The students were, first, a tool of Clover and his radical associates; now, they move to becoming a tool of the bigger, Occupy operation–what better representatives than kids who “face” 11 years in prison and million-dollar fines.
Free speech was overwhelmed when they purposely, knowing broke laws for weeks on end. Try as the attorneys might, a jury will do its best to apply the law and that doesn’t bode well for the defendants.
The sad thing is that a guilty finding will result in more serious sentences than the plea bargain would have (which will increase the students’ value as victims). A standard anarchist approach to fight power, used for centuries for both good and unworthy causes.[/quote]
Nice summation of the issues. The students paid attention to Clover, joined with his antics in blocking the bank to their detriment. And now because of it have been charged in a way that could net them serious jail time – altho I think that is an exaggeration, since the DA offered them only 80 hrs of community service and 1 year probation. My fear too is these students may end up with a more serious punishment than the one offered, bc the defense attorneys have taken this on as a cause celebre. Of course there is always the possibility of jury nullification.
As for misdemeanor probation, it is not the same thing as felony probation. See [url]http://www.shouselaw.com/misdemeanor-probation.html#1.1[/url]
[quote]The formal definition of misdemeanor probation is found in California Penal Code Section 1203(a):
As used in this code, ‘conditional sentence’ means the suspension of the imposition or execution of a sentence and the order of revocable release in the community subject to conditions established by the court without the supervision of a probation officer.3
In plain English, what this means is that if you are placed on misdemeanor probation, the judge is agreeing not to place you in jail or impose a fine called for by law so long as you agree to the summary probation conditions crafted by the judge.
If you don’t comply with the conditions, and thus violate the terms of your probation, the judge can modify or revoke your probation and send you to jail.
If the judge has already imposed a sentence by “pronouncing judgment,” the judge can simply carry out that already-decided sentence. Alternatively, if the judge has not yet imposed a sentence, the judge can impose a sentence of up to the maximum penalty for the offense(s) of which you were convicted.4
In our example from above, if the defendant who got three years summary probation for California Penal Code 245(a)(1) pc assault with a deadly weapon ADW violates probation, the judge can revoke that probation and carry out (or impose) a sentence of up to one year in county jail.5
1.2. Misdemeanor probation versus felony probation
There’s a big difference between misdemeanor probation and felony probation in California.
In most misdemeanor cases, for example, the judge does not request a “probation report” from the county probation department to help determine probation terms. But the judge is required to get such a report in felony cases as well as in misdemeanor cases involving sex crimes in California .6
Another difference is that misdemeanor probationers are not required to report to a “probation officer” like felony probationers. Instead, misdemeanor probationers have to go to back to court every now and then to appear before the judge and report on their summary probation progress.
Misdemeanor probation in California is designed to hold people who violate the law accountable for their actions, provide redress for victims, and rehabilitate offenders.
The judge has a wide degree of discretion to craft probation conditions that are “fitting and proper to the end that justice may be done.”7 However, the law requires that such conditions must be reasonable and logically related to the offense at hand.8
Pay restitution fines and/or victim restitution…
Complete community service or Cal-Trans roadside work
Agree not to violate any laws[/quote]
Elaine, why are you ignoring the restitution issue? You really think the DA can find twelve inYolo to convict? The only found is that would convict Brienna Holmes?
Just as the 11-year sentence maximum means nothing in this situation, the supposed million-dollar restitution threat is a similarly fraudulent fear. The claim that the demonstrators “face 11 tears in prison” was used for weeks just as method to engender sympathy for the blockaders by them and their supporters and to provide “evidence” that the university and the DA are demons and meanies.
Once the plea bargain terms were announced, the “decade in prison” claim dissolved, only to be replaced by the $1-million restitution charade. These blockaders are misguided students (except for the guiding light professor and the felony vandal). Once convicted, they will find the judge quite gentle. The main penalty for these folks who’ll be the requirement not to break more laws in the future.
Think about it, in whose interest is a restitution requirement? Judges don’t do million-dollar stupids.
“Once the plea bargain terms were announced, the “decade in prison” claim dissolved, only to be replaced by the $1-million restitution charade.”
I don’t think it would be a million each.
“Judges don’t do million-dollar stupids. “
If you google it, you’ll see they do. The judge would have to determine that the protesters cost the bank over $1 million.
Google what? Please be specific. “”Bank+blockade+’broke students’+’misdemeanor trespass’+’rich university’+sentence” didn’t reveal any stupid million-dollar sentences for restitution to giant banks which already have announced their deep-pocket target.
Anyway, the defense could call you as an expert witness who has noted repeatedly that UCD is responsible for the bank’s losses, not the demonstrators.
Your post doesn’t seem serious. If you are serious google: restitution $1 million california. You will find plenty of examples.
[i]Elaine, why are you ignoring the restitution issue? You really think the DA can find twelve inYolo to convict? The only found is that would convict Brienna Holmes? [/i]
There are way more than 12 in Yolo County that will convict (and very quickly), if the evidence is clear that the group illegally blockaded the entrance to the bank and ignored multiple warnings to desist.
Yes, I’m serious about the low likelihood of million-dollar restitution being awarded as a sentence in this case. The Google search you recommend does show that $1-million awards are made. After reviewing several of them, I found not a single case that comes close to the one under discussion. The fact that there is the tiniest chance of something happening in the history of the universe doesn’t mean that it’s a serious consideration.
These kids don’t have the kind of money that the bank could suggest it’s losing by not being there anymore. You’ve reported on the correspondence showing the bank blames UCD for its decision to close. There are several logical reasons for the defendants to turn down the plea deal. Fear that it would mean the judge would add a giant restitution requirement on top of the agreed-to plea deal is not one of them.
I agree with Adam. The county is full of potential jurors who will apply the law and convict these folks, given the openness of their criminal activity and the evidence the investigators must have accumulated during their lengthy blockade. Ain’t no reasonable doubt here, and if you’re suggesting jury nullification is in the cards…well, I can’t see it.
I guess it depends on what you mean by close. It is true that there are not similarities in the fact that people are not facing charges for protesting a bank, but there are similarities in that their actions have been shown to cause lost of money. Also, I don’t believe you will see the figure at $1 million per protester, but even spread between 12 protesters, at $80,000 plus, the fine would be considerable and equivalent to having an additional student loan. We’ll see what happens. Talking with them, they seem to fear this possibility and fear that pleading to the charges exposes them to a situation where they cannot control what a judge will choose to do to the point where it appears they’ll take their chances.
I just wonder who is doing the thinking for them. Everything they fear is just as likely to befall them if they’re found guilty be a jury and got to sentencing after the DA has gone through a trial. Do they really think th DA will recommend such a light sentence after spending all our tax money on that and after emerging victorious? Do they really think the judge will be more harsh with a plea bargain sentence, one in which all parties have agreed on the likely sentence and one that shows respect for the justice system.
After all, there aren’t many cases as well documented as this–“open and shut,” we like to say. I just wonder what on side of reality these folks are living.
That’s your assumption not theirs.
Meanwhile the rhetoric here leads us to believe that the issue that will be litigated will be the limits of free speech and the right to dissent.
cut the crap. that is such a straw man argument if there ever was one. the issue is did they illegally block bank business or not? that is a far cry different from holding up a sign saying, we don’t like thus and such. many on this blog understand the difference.
You aren’t a lawyer, and from past discussions, it is far from clear that you understand it either. You are the one kept claiming the protesters made criminal threats yet weren’t able to cite penal code to prove your case and became silence when I cited penal code that disproved it.
So when you make these arguments and it’s clear you aren’t versed in the law, it is difficult to take your claims seriously.
nice dodge.
You have argued, “cut the crap,” implying that you have something definitive to say, but when called on the factual basis for that bluster, you’re only defense is to attempt to turn the argument back on me. Either you have a credible basis for your opinion or you don’t. At this point I don’t believe you can articulate one. If the issue is whether they illegally blocked a business, then one of the issues litigated will be where the right to free speech and the right to dissent ends, will it not?
[quote]Either you have a credible basis for your opinion or you don’t. At this point I don’t believe you can articulate one.[/quote]
Frankly, I don’t think you have a credible argument the protestors were only exercising their right to free speech or that they should fear $1 million in restitution…