Reporter's Notebook from Trial of STOP "Stop & Frisk" Freedom Fighters:
Juror Arrested and Kicked Off Jury, DA Calls for a Mistrial, Top Cop Testifies on Plan to Arrest Protesters...
Revolution #285, November 18, 2012
On November 5, even the horrible aftermath of Hurricane Sandy didn't stop this system from pressing forward with its efforts to punish four freedom fighters for taking a courageous stand against stop-and-frisk. Carl Dix, Jamel Mims, Morgan Rhodewalt, and Bob Parsons, along with nine others, were arrested in November 2011 at a non-violent mass civil disobedience at the Queens 103rd NYPD Precinct. The four now face two counts of Obstruction of Government Administration and one count of Disorderly Conduct for failure to disperse—which carry a possible sentence of 12 months in jail. (See Revolution #284, November 4, 2012, for background.)
As tens of thousands throughout the city were still suffering from no power, heat, gas, and shelter—the Queens County courthouse was up and running again, this pipeline for mass incarceration quickly getting back up to speed. And the District Attorney's office came back ready to resume its determined effort to punish these freedom fighters for standing up against the totally illegitimate, racist NYPD stop-and-frisk policy—that stops and harasses hundreds of thousands every year, especially Black and Latino youth. The prosecution returned, rabid to deliver a message that anyone who resists this criminal injustice will pay a heavy price. The defendants, their attorneys, and supporters were there too, determined to defeat these attempts.
The DA's principal witness was Charles McEvoy, the Commanding Officer of the 103rd Precinct where the civil disobedience had taken place. In 2006, it was cops from this very precinct who fired 50 bullets into a car where a 23-year-old Black man, Sean Bell, was sitting the night before he was to get married, killing him instantly. McEvoy was ready to testify, but first, there was another item for the court to deal with.
Arrest Is One Way to Get Rid of a Juror
Judge Gene Lopez, announced it had been reported to him that "juror #6" had been talking about wearing a "protest shirt" to court. As it turned out, she had been thinking about wearing an Obama T-shirt and the judge said this may "at the least" show some "solidarity and unity" with protests (?!). So juror #6 was brought in and asked whether she could still be fair and impartial in the trial, to which she said, "with no hesitation, yes."
Maybe you're thinking the court was over-reacting a bit here. But wait, it gets worse.
Six hours later, juror #6 was leaving the courthouse and went to reclaim some personal articles confiscated that morning when she went through security. (All kinds of things aren't allowed into the courthouse, including cameras, gym padlocks, Sharpies, small pen knives, etc.) Standard procedure is you get your items back in a plastic bag and sign a form saying you received them. But she was shown an empty plastic bag and told to sign the form without getting her things back. She protested, argued. Then, before you know it, she found herself handcuffed and locked up in a small room and charged with five counts of disorderly conduct.
The defendants, their lawyers and some supporters were still at the courthouse and couldn't believe what was happening. But at the same time, it wasn't a complete surprise. As Debra Sweet wrote on the Stop Mass Incarceration Network Trial Blog that night:
"A lot of people are unjustly arrested in NYC off of stop-and-frisks, exactly our point in protesting it. But not many middle-aged white office workers who live in co-ops and get their news from the New York Times and PBS expect to be arrested while on jury duty. What makes the treatment of this juror unusual and suspect is that she was the only sitting juror who, during the selection process, indicated that she has a negative view of NYPD stop-and-frisk, and was not challenged and removed by the prosecution. We knew they did not like her as a juror. But we couldn't have predicted that the workings of the system of mass incarceration would provide such a vivid example of abusing people's rights."
When the trial resumed on November 7, the arrest of juror #6 was the first item on the agenda. She had been separated from the rest of the jury, was brought in to be questioned about what had happened, and quickly discharged from the panel. But another juror had actually been with juror #6 when she was arrested and had told all the other jurors what had happened. So the rest of the morning was spent questioning each juror. They were brought in one by one and asked what they knew about the arrest and whether, because of this, they could still be "fair and impartial"—basically towards the whole injustice system that had dragged their fellow juror away in handcuffs for simply wanting to get her personal belongings back. One other juror was removed after she said she wanted to be impartial, but that this arrest would still be in the back of her mind. Other jurors described what had happened as "shocking," "frightening," or "scary," but said they could still be "fair and impartial" so they were allowed to stay.
Up to this point, two rookie prosecutors had been arguing the case, with a supervising DA coaching from behind them in the front row. But now, in what they clearly saw as a crisis and an opportunity, the coach took charge, stepped to the front, and went on a rant before the judge to argue for a mistrial.
The DA's preposterous argument was that a fair trial was now impossible because the jury had been "poisoned" and "tainted" since a member of the jury had been arrested for "conduct very similar to that which the defendants are being tried for." In fact, the only thing similar here is that that juror #6 was unjustly arrested, just like the defendants—which the DA was perhaps worried the jury might realize.
He said that now, "regardless of what jurors say about being impartial and fair," and despite any instructions from the judge, this can't be overcome, this can't be "purged from their system because it is so close to the facts of this case." He then went on to say, "If we had been aware that someone had been a witness to a crime similar to what is on trial here we would have not kept them on the jury."
To this, you have to ask—does that mean the prosecution would bar as a juror, anyone who has ever been stopped and frisked, anyone who has been arrested for protesting against injustice, anyone who has even been arrested unjustly (which is a hell of a lot of people), or even anyone who has even WITNESSED any of this!!??
What kind of justice is this?
The prosecution then demanded that juror #6 be banned from the courtroom—even though this is a public trial—citing that she had been out in the hallway, talking to supporters of the defendants, who he referred to as all "protesters." Apparently, in the eyes of the DA, she had not only "tainted" the jury—but because she had fraternized with supporters of the defendants, her mere presence in the courtroom would now further "poison" the trial.
Defense attorneys Marty Stolar, Meghan Maurus, and Tom Hillgardner challenged the prosecutor's arguments that jurors would now be unable to hear evidence and decide the case based on the facts and pointed out that case law shows jurors can only be removed for "gross misconduct," which has to do with issues of the trial—not things that happen outside of the courtroom.
In the end, Judge Lopez ruled juror #6 would not be banned from the courtroom, but if she showed up would have to sit where the jury could not see her. And he ruled against the prosecution's argument for a mistrial. But as one person commented, “things are hanging by a thread” and the DA will probably try to get a mistrial some other way, including by dismissing other jurors. (No alternates are left at this point and Hurricane Sandy has affected two jurors who are teachers, meaning they might not be able to continue.)
The Setup at Precinct 103
When Deputy Inspector Charles McEvoy testified on November 5 (before juror #6 was arrested), the prosecution tried to establish that protesters were guilty of blocking the doorway to the precinct and therefore guilty of Obstruction of Government Administration. McEvoy basically said that while the normal running of the precinct was not disrupted, three cops were prevented from getting to roll call on time and were five minutes late! Seriously, this was about all the prosecution could offer to actually establish concrete evidence that protesters had obstructed any business at the precinct.
So if the protesters were not obstructing any business, why were they arrested? Throughout this trial, the DA and the judge have reiterated that this trial is not about stop-and-frisk, police conduct, etc. but simply about whether or not protesters Obstructed Government Administration. But when defense attorney Martin Stolar cross-examined McEvoy, he got at some of the real truth about what was motivating the arrests that day. He asked McEvoy, "Did the fact that they were protesting against stop-and-frisk by the NYPD have anything to do with your order to have them disperse from the front of the precinct?" McEvoy, of course, said, "Not at all." Stolar also asked, "When the protesters were standing in front of the precinct doors and shouting, 'We are all Sean Bel1, NYPD go to hell' was that part of the reason that you decided you didn't want them in front of the precinct doors?" McEvoy said, "Absolutely not." But through this questioning, the defense was able to make an important point.
McEvoy's testimony also revealed how the NYPD had discussions beforehand about how to basically entrap and then arrest the protesters. In cross examination, defense attorney Martin Stolar asked McEvoy about the "frozen zone" where demonstrators were not allowed and McEvoy said, "If the demonstrators wanted to open the barrier, I should say, and cross through it, they wou1d not have met police resistance, or if the New York City Police Department opened the gate and the protesters crossed into the frozen zone, they weren't going to be encountering resistance in doing that."
Defense attorney Meghan Maurus also cross-examined McEvoy, asking him why they set up barriers but then let the protesters in. McEvoy said, "When they arrived at the precinct we would be able to set up, to maintain order, have structure, and when they were going to enter into this frozen area and have the demonstration in front of the entrance we would be ready and prepared in the event of an unforeseen occurrence."
McEvoy went on to admit, "Yes, I let them in." Then when asked, "You knew they were going to block them [the doors]; is that correct?" he said, "Yes, but I gave them two ample warnings or they would be subject to arrest." The police video shown in the courtroom clearly shows the cops letting the demonstrators in, then shortly afterwards, McEvoy gives the order to disperse or be arrested. Clearly a setup:
McEvoy: I never wanted them in front of the door. I knew they were going to go there. Did I want them there, no.
Maurus: Then why did you let them in?
McEvoy: Because they were allowed to have the demonstration. They want to demonstrate in front of the front door, they were blocking the entrance to the precinct. They could have possibly prevented police functions. So they were given two separate warnings to depart or else they would be subject to arrest, which they did not comply.
The stakes in this political trial are very high. Mass support needs to be built to beat back the attempt to punish these freedom fighters. Defendant Jamel Mims spoke to the larger significance of this trial in a piece he wrote, recently posted at the Stop Mass Incarceration Network website:
"As stop-and-frisk is objectively on trial in society, we stand trial facing up to a year in prison for protesting the policy at the 103rd precinct, which set off a city-wide wave of resistance against the policy and mass incarceration. Yet the refrain from the judge and prosecution has been 'stop-and-frisk is not on trial here.' Tell me, how could this be about anything else?
"The system of mass incarceration sits atop a fault-line social contradiction historically centered at the core of the development of the United States: the oppression and exploitation of Black people and other racial minority groups. Since its inception, the United States has maintained a cohering mythology of 'the greatest nation on earth,' and a free and democratic society for all, while maintaining, and depending on, some form of racial caste system. First it was slavery, then Jim Crow segregation, and now the 'New' Jim Crow, mass incarceration. We find ourselves in the midst of a 'post-racial' society with equal opportunity for all, yet 2.4 million mostly Blacks and Latinos are warehoused across the nation, with their rights denied, barred access to housing and voting rights, and legally discriminated against, wearing a badge of shame and dishonor for the rest of their lives. The trial itself, and the prosecution and judge's attempts to rule out any discussion of stop-and-frisk speaks volumes about the necessity they face to maintain this myth, to maintain a veneer of legitimacy while not only trampling over our First Amendment rights to protest, while fundamentally violating the rights of a whole section of people they have historically criminalized."