The Battle of the Barn

A different version of events. Too bad this wasn’t admitted into evidence during the trial of OccuBarn defendants. I think Judge Wingo would have enjoyed it.

Jeff Light: “Will work for cupcakes”

Attorney Jeff Light (photo by coolrevolution.net)

During the Occubarn hearing and trial, Judge Wingo took plenty of opportunities to praise defense counsel Jeff Light. Several times she seemed to catch herself and include government prosecutor Sean Farrelly as an afterthought, however accomplished an attorney he may be.

She described Light’s motions as “clearly and concisely argued,” “nicely laid out,” and “very nicely written on a complex issue.” After motions for judgment to acquit, she again commended him. “Thank you for clear, concise arguments,” she said. “I really appreciate the quality of work here.”

Before delivering the verdict, the judge said, “I really appreciate the efforts put forward on both sides, raising and thoroughly investigating the issues.”

Farrelly had to meet an onslaught of motions that Light brought at every opportunity, including motions to dismiss based on constitutional issues, challenges to chain of custody, accusations of destruction of evidence (including destruction of the Barn itself), and challenges to the method of Identifying defendants by photograph–which won the acquittal of one.

Light graduated from Georgetown Law School in 2004 and is now a solo practitioner, doing much pro bono work. This trial is his second trial ever. Affiliated with the National Lawyers Guild, most of his practice is devoted to working with activists as a criminal representative when they have been arrested and their rights violated. He also works on transgender rights and represents groups including the DC Trans Coalition (DCTC).

He currently has fifty cases and no paralegal. “I make the photocopies. When there’s a letter to be mailed, I go to the post office,” he said.

His clients in the OccuBarn case gave him a box of cupcakes–his favorite–in gratitude for his services as their attorney.

OccuBarn trial: Outcome

The OccuVerdict is in: guilty on all counts.

Ten defendants heard the verdict and their sentencing on June 21, the ruling handed down by Judge Elizabeth Wingo after five days of trial–almost twenty hours of motions and testimony–on charges related to a structure erected by Occupy DC in McPherson Park in December, 2011.

All eleven defendants were found guilty of the charge failure to obey in an emergency situation, and one, David Givens, had two additional charges, indecent exposure and disorderly conduct. One defendant had a waiver for his presence that day, and another, Rooj Alwazir, was acquitted last week. Two didn’t appear for trial at all and will have a separate hearing.

The judge prefaced sentencing by saying, “It is clear to me that [the defendants] acted not out of a desire to create havoc, [but out of] a desire to improve the state of the country. They did not have criminal convictions.” She also noted that for the failure to obey charge, community service was not appropriate.

Of the eleven defendants, Judge Wingo distinguished the three who climbed into the rafters of the building from seven who remained on the ground within it in defiance of a police order to vacate. All are required to pay a mandatory $50 assessment to the Victims of Violent Crimes fund.

The seven who remained on the ground within the structure received a $100 fine, suspended.

For the three defendants who took to the rafters and defended it against police the entire day, she took into consideration her assessment that their conduct was “a little more dangerous,” and she believed their “point [as protestors] could have been made another way.” She urged them to “think about the danger posed to themselves and others.” She also imposed $100 fine but did not suspend it.

In addition, one defendant, David Givens, was the last person extricated from the rafters of the OccuBarn, pried off by police officers and delivered into custody by a cherry picker. After ten hours aloft, he declined offers by police to use the porta-potty when they informed him he wouldn’t be able to return to the roof, so he relieved himself. “Urinating in an arc,” the judge said in the findings of fact, “making a display of himself, though not an extreme one.”

Taking into consideration her belief that Givens put Park Police officers “in a fair amount of danger,” she sentenced him to a $150 fine, 90 days suspended, one year unsupervised probation and 24 hours of community service, plus $150 to the Victims of Violent Crime fund.

Upon learning that Givens spent five days in jail when he didn’t identify himself in court, the judge said, “Mr. Givens is committed.” The defendants responded with twinkle fingers, an Occupy signal of solidarity.

Defense counsel Jeff Light was generally pleased by sentencing. “We asked for $1 fine, and got a $0 fine,” he said.

He also thought they were in an advantageous position for appeal. “The judge did a great job of laying out the facts. Findings of fact were great. They’re now and forever the gospel.”

The case will go to appeal, first to an Associate Judge in DC Superior Court, then to the Court of Appeals.

UPDATE: In statement released by his office, Attorney General Irvin B. Nathan said, “We respect the right of Occupy DC participants to communicate their message to the public, but they crossed the line by refusing lawful orders to leave a structure that had been declared unsafe. I commend the work of the prosecutors in our Public Safety Division for securing this conviction.”

Corrections: A previous version of this post incorrectly stated that eight defendants were given a $100 suspended fine, rather than seven. Also, David Givens was charged with disorderly conduct, not urination in public.

OccuBarn trial: Architect vouches for safety

Architect’s original drawing of OccuBarn

On Day 3 of the OccuBarn trial (June 18), the defense brought architect Kash Bennett to the stand to testify as an expert witness. Bennett works for the firm RTKL Associates, Inc. The architect who actually designed the structure has chosen to remain anonymous.

Charges against the defendants include failure to obey in an emergency situation. Throughout the trial, defense counsel has been attempting to poke a hole in the assumption that this was an emergency situation in the first place. One plank in police rationale for declaring an emergency is that the structure was dangerous and therefore a threat to public safety.

The defense needs to address safety concerns brought up in testimony by prosecution witnesses. Lt. Robert LaChance of U.S. Park Police said he heard “cracking” noises and that the structure started to collapse when police were extricating the last of the Occupiers from the rafters. And the DC Regulatory Affairs inspector who posted “Danger” signs on the OccuBarn testified that by definition the structure was not safe because it had not gone through the permitting process.

Bennet prepared for testimony by reviewing blueprints, drawings, and a 3-D “sketch-up” and found that they were in accordance with many pictures of the structure “in location.” The OccuBarn was intended to be a temporary structure, and Bennett testified that generally such structures are not any less stable, but “over time” one could be concerned with stability since they have no embedded foundation.

On an easel, Bennett drew diagrams to demonstrate architecturally sound design principles, including triangulation and cross-bracing, and compared them with the design of the OccuBarn. He noted that some of the wooden beams were larger than standard for this type of structure.

“This structure in my estimation is actually overbuilt,” he said, explaining that usually a structure is constructed only as safe and functional as necessary. “Everything else is extra cost. [This structure has] an extra margin of safety.” He concluded that it was built in a structurally sound way, repeatedly calling it “strong” and “robust.”

Viewing a photo of Park Service bulldozers demolishing the building, he pointed out how strong the structure was. “See how difficult it was for the demolition crew to take it down,” he said.

Cracking noises, such as those reported by Lt. LaChance, could be accounted for by “settling,” or “a little play in the joinery.”

While he didn’t calculate wind lodes on the structure, saying that such calculations would depend in part on information he didn’t have, such as wood grade, he claimed that it was irrelevant in a structure both small and sturdy. Large temporary structures like concert venues might need wind lodes calculated, but under strong winds, he said, “other tents in the park would be in danger before this would flex a millimeter.”

Under cross-examination, Bennett admitted that “without testing it, you couldn’t be 100% certain [of structural integrity].” But he was confident in his evaluative judgment, saying, “Can a human lift an elephant? The answer is obvious.”

The DC Regulatory Agency inspector testimony and the prosecution’s cross-examination of Bennett relied heavily on demonstrating non-compliance with DC building code. On Day 4, the prosecution will bring its own expert witness, Jatinder Khokhar, to the stand to rebut Bennett’s testimony and testify on building codes, inspection and the permitting process.

McPherson Park, like all parks in the District, is federal land, and it’s not even certain that DC Code even applies. We expect defense counsel to pull that punch in the late stages of trial.

OccuBarn trial: Emergency situation

Some facets of the OccuBarn trial go to the heart of First Amendment issues dogging Occupy movement protests. One of those issues is discretionary powers of police–how laws governing them are conceived, and how those powers are used and abused.

Since findings of fact could very likely go against the defendants in the OccuBarn trial, defense counsel Jeff Light has gone for the jugular in attacking the substantive basis of the charges themselves. And, not only is he challenging the constitutionality of the statutes, he’s attacking the situational basis of one charge in particular: “failure to obey order – emergency.” All fourteen defendants face this charge.

Light is calling into question whether the scene at McPherson Park on December 4, 2011 warranted a declaration of emergency by the police, and he furthermore asserts that they exercised discretionary powers at odds with First Amendment rights.

In the motion to dismiss, he cites an appellate court ruling (Washington Mobilization Committee v. Cullinane) which struck down the District police lines regulation (of which this emergency statute is a part) for being overly broad:

It is difficult to conceive of a more pernicious prescription. A police officer is given unfettered discretion to issue any order he thinks reasonable and then is allowed to initiate criminal proceedings against a person who disobeys the order.

The Catch-22 here is obvious, especially to seasoned protestors. As the motion to dismiss points out, an unjustified order to disperse, for example, can lead to arrest for loitering. During trial, Light said, “For the protection of persons and property, the circumstances are so broad that there are no limits on a police officer’s discretion and whether he believes that it’s necessary [to declare an emergency].” Without express guidelines, police may have the power to criminalize harmless conduct.

Prosecutor Sean Farrelly countered that there was no more discretion involved in declaring an emergency than for a police officer to determine whether a crime was being committed, but he agreed that police could declare an emergency whenever they wanted to.

He gave specific rationale for the police decision to declare an emergency situation at McPherson Park: the OccuBarn structure was unsafe, there were hundreds of people in the park, and it was necessary to shut down traffic around the park.

Judge Elizabeth Wingo denied the motion to dismiss, saying, “The entirety of the statute is aimed at giving police officers authority to deal with an emergency.”

The judge didn’t find the defense’s direct challenges to the statute based on over breadth and vagueness persuasive, but going forward the defense strategy clearly will be attacking the rationale for the police’s declaration.

(Photo by coolrevolution.net)

OccuBarn trial: Background

Photo by Anne Meador

Thinking back to December 4, 2011 when Occupy DC erected the OccuBarn in McPherson Park, it’s worth remembering that violent police confrontations with the Occupy movement were happening with great frequency. Paramilitarized police of metropolitan areas had the opportunity to try out on Occupy protestors all the techniques they had learned–and many of the toys they had acquired–in their post-9/11 homeland security training. Moreover, iconoclastic events like the eviction of Occupy Wall Street from New York’s Zuccotti Park were still fresh news. That eviction had only just taken place on November 15.

In light of the recent clashes with police forces, it took a lot of chutzpah to raise the Barn–the “temporary structure” intended to shield General Assemblies and other meetings from the winter cold.  And, as trial witness Sara Shaw put it, it also “served as a symbol. We were protesting foreclosures, the rise of homelessness. [With the structure,] we were providing a shelter.” Wooden, rectangular, about 30 feet long and at least 15 feet high, the OccuBarn was a provocation, and there was no question that National Park Police were going to respond.

Moving in early that crisp December morning, Park Police demanded that the structure be disassembled. In spite of a somewhat confused emergency General Assembly, which ultimately decided to comply with the order, 23 people conducted an autonomous action, stationing themselves within the structure or climbing into the rafters. An all-day stand-off ensued.

More than six months later, 14 defendants are on trial for minor offenses–all of them charged with failure to obey in an emergency situation, and one additionally charged with public indecency and urinating in public. The trial is actually being conducted in traffic court by Magistrate Judge Elizabeth Wingo.

It’s speculation, but Judge Wingo may be enjoying defense counsel’s approach–challenging the basis of the statutes on Constitutional grounds. In his motions to dismiss, Occupy DC attorney Jeff Light essentially asked the judge to strike down District laws on obscenity and public indecency, public urination and failure to obey police.

Talk about chutzpah.

A reminder: the recurring theme of the preliminary hearing on May 30 was Judge Wingo’s excoriation of the prosecutor’s office for failing to meet filing deadlines. She opened Day 1 by asking, “Is the government ready for trial?”

Judge issues scathing rebuke to prosecution at OccuBarn hearing

In a hearing of a case related to the structure erected by Occupy DC known as the “OccuBarn,” a DC Superior Court Judge dealt scathing criticism to the prosecution for failing to meet deadlines for filing motions. Calling their behavior “a gross dereliction of duty” and “lame,” Judge Elizabeth Wingo considered dismissing the case and even the unusual measure of conceding the case on Constitutional grounds. She’s now weighing whether to levy sanctions against them.

Even before addressing the preliminary issue of potential conflicts of interest arising from counsel Jeff Light’s representation of all defendants in the case, Judge Wingo immediately took the opportunity to announce her displeasure with the prosecution’s lapse. To Peter Saba, the attorney standing in for Assistant Attorney General Sean Farrelly, she said, “I realize this is not your case, so you’re somewhat a lamb to the slaughter.”

The OccuBarn was a 15-foot high modular wooden structure erected by Occupy DC at McPherson Park on December 4, 2011. While an emergency General Assembly debated whether to comply with the Park Police order to disassemble the OccuBarn, police went ahead and cordoned off the structure. Several individuals engaged in autonomous action, stationing themselves inside it, while six climbed into the rafters, remaining there for a day-long stand-off with police until the final hold-out was plucked from the roof by a cherry-picker ten hours later.

Occupy DC attorney Jeff Light, who is representing the 14 defendants charged with low-level criminal offenses, filed a motion to dismiss on March 26 and a motion to concede on May 22. The prosecution’s deadline to respond to the motion to dismiss was April 9, which it missed. After the judge inquired twice, they indicated their intention to file in two weeks, a response which Judge Wingo described as “woefully inadequate.” She then issued an order requiring the government to file a motion by May 18, but, she noted, they didn’t even file a motion to “late file.”

As of Tuesday’s hearing, the prosecution still had not complied with the judge’s order, only two weeks before the trial scheduled for June 13. Judge Wingo said it was “the first time she had considered treating a motion as conceded.”

Without raising her voice but in an indignant tone, she proceeded to dress down the prosecution. “Was [Assistant Attorney General] Mr. Farrelly on bedrest for six weeks? What’s the explanation here?” she asked. She also reminded them, “This is not a run-of-the-mill case, [and] it’s going to take extreme organization.” In the most telling moment of exasperation, she said, “It appears to me that the government’s conduct here is so…lame.”

In contrast, she praised the defense, calling Jeff Light’s motion “clearly and concisely argued,” “nicely laid out,” and “very nicely written on a complex issue.” In considering sanctions on the prosecution, she consulted Light, asking him if he knew what measures would be appropriate in these cases.

Peter Saba, the prosecuting attorney, lobbied for a continuance as a sanction, but the judge thought that postponing trial would only penalize the defendants. “You’re saying, ‘our bad,'” she said to him. As he took the tongue-lashing, Saba sometimes revealed a lack of preparation for the proceedings, unaware of the contents of the motions and unwilling to commit to deadlines. He texted his office as the judge spoke to see if they could meet the Wednesday deadline she imposed. “Let me be clear,” she said. “It needs to be filed tomorrow at the latest.”

Still, she voiced her reluctance to concede the case on Constitutional grounds and declined to dismiss the case.

Jubilant defendants greeted counsel Jeff Light outside the courtroom with twinkle fingers, an Occupy signal of approval. Kelly Mears said, “I hope to see more of this… One side of this case cares more about this. This is not just a rote defense, but it is a rote prosecution.”

Caty McClure said she was “glad the judge is calling them out. It’s respect for the process.” But at the same time she said she felt “super disrespected” by the prosecution. Sophie Vick agreed. “My time was wasted,” she said. “I wanted to throw up my hands and storm out.”

Jeff Light however had a positive reaction. “Ignoring deadlines isn’t unusual,” he said. “I deal with this situation all the time. Government entities often don’t follow the rules.” And, he added, “Some judges are more tolerant than others. Judge Wingo took the appropriate tone.”

The prosecution is required to file a response to the motion to dismiss by May 30 and a response to the Bill of Particulars by June 5. It also must turn over additional information to the defense by June 1. The trial is scheduled for June 13-14 at DC Superior Court.

(Photo by cool revolution.net)

UPDATE: All the defendants are charged with “Failure to Obey – Emergency.” One defendant, David Givens, has two additional charges: “lewd, indecent or obscene acts” and disorderly conduct.

UPDATE 5/30/12: Ted Gest, Public Information Officer of the DC Attorney General’s Office, says that Assistant Attorney General Sean Farrelly has filed a response to the motion to dismiss in the case, meeting today’s deadline.