High Drama as Occupy Asheville Takes to the Courts

 by Clare Hanrahan

Asheville activists occupied two Buncombe County, NC courtrooms for much of the day April 26, 2012.
They were ordered to court to face various charges including trespass and impeding traffic resulting from asserting first amendment rights to peaceably assemble in various nonviolent direct actions throughout the city in October, November and December of 2011. Only one “not guilty” verdict was returned for the six defendants whose cases were heard. Continuance until June 28 was granted for about 21 other cases. Pro bono attorney Ben Scales, who has provided countless hours of assistance to the First Amendment defenders, asked for the continuance because many of the arresting officers were not present to testify.  They are “essential witnesses to our case,” he said.

The first person to go before District Court Judge Patricia K. Young in the basement courtroom was Lyudmila Dhiraja, a native of the Ukraine. She had been cited for impeding traffic around Vance monument on October 15, 2011 during a rally at the monument, a location that has been acknowledged by the city of Asheville as a “traditional forum for free speech,” after over a decade of weekly vigils and protests against violence and war by Women in Black and Veterans for Peace.

Virato and Dhiraja at Occupy event

Dhiraja pled guilty and was sentenced to 12 months probation and 20 days suspended sentence. Her husband, Joseph Bacanskas, also known as Virato, and the first of Occupy Asheville activists to be charged, was found guilty April 17 of willfully impeding traffic at Vance Monument and ordered to pay $190.

Attorney Ben scales also assisted Matthew Burd, who opted to serve as his own attorney. Burd was sent upstairs to courtroom 3 where he was tried before District Court Judge Julie M. Keple.  Numerous supporters and co-defendants whose trials had been postponed followed him to the 2^nd floor courtroom. Assistant District Attorney Milton Fletcher prosecuted Burd on charges of trespass for a November 2 march and rally at Vance monument.  Burd maintained he was asserting his First Amendment Rights to peaceably assemble.  He asked Asheville Police Sgt. Jonathan Brown if he had taken an oath to uphold the Constitution, but when he asked Brown to recite the oath, the ten year police veteran was unable to do so. Sgt. Brown has been present at many Occupy Asheville events, and told the court in a later trial that afternoon that “we became familiar with people inside the movement. I had a lot of dialog. ..we were prepared for multiple scenarios.”

Matt Burd's Mug

Several National Lawyers Guild Legal Observers, including this writer were present in the court room throughout the day. Asheville has a dozen Legal Observers, trained by retired attorney Curry First, who is also the president of the Western North Carolina chapter of the ACLU.  I had barely settled in to the 2^nd floor courtroom to observe when defendant Matthew Burd called me forward as a witness.  This is one of the roles we Legal Observers agree to as part of our training through the National Lawyers Guild.  With my notes in hand from the Nov. 2 march from Lexington Ave. underpass and the rally at Vance monument, I approached the stand.

To the best of my recollection, and aided with my Legal Observer notes, I was able to answer questions regarding the arrests and interactions with the police. Unlike the encounters in many cities where the occupy movement is active, all the interactions I have observed between Asheville police and occupy activists have been civil and polite, as each play out the roles they feel a duty to assert.

Under cross examination, I had to correct the Assistant District Attorney, who kept referring to what he called “your organization.”  Occupy is a “movement” I asserted, not an organization.  I was serving as a trained Legal Observer, not as a participant. The prosecuting attorney’s style was aggressive and badgering, often interrupting, and as one observer later commented, “He seems more interested in getting a conviction than getting at the truth of what happened.”

As is typical in these cases where individuals may violate city ordinances to assert a higher law and bring attention to an injustice, the prosecution is only interested in the bare bones: “Did you or did you not remain after being warned to leave?” Burd was found guilty and sentenced to time served.

Amber Williams & Steve Norris & BOA windmill

Back in the basement courtroom, Warren Wilson College professor Steve Norris faced Judge Young. He plead guilty for a December 2 action in front of Bank of America, coordinated by the Rainforest Action Network with large participation from the Occupy Asheville movement.  Norris and Amber Williams chained themselves to a replica of a windmill to dramatically demonstrate the egregious crimes aided and abetted by $3.9 billion in loans from Bank of America to fund mountain top removal coal mining.  Norris was sentenced to time served for his conscientious action which Attorney Scales characterized as being undertaken as a “necessity” in the spirit of the civil disobedience actions of Martin Luther King, Jr. and Mohandas Gandhi to bring attention to an injustice.

Amber Williams opted to defend herself, pleading not guilty at her trial that afternoon before Judge Young. Her case was joined with that of Caleb Shaw and Thomas Beckett. Both men had been charged with trespass for being on the grassy area in front of the Bank of America. 

Hanrahan & Rawls at Occupy Asheville

Attorney Scales called both me and Legal Observer Sonny Rawls to the stand to testify to our observations during the arrests. The prosecution called  Jason Dowell, a former Branch Manager at Asheville’s downtown branch of Bank of America (now with Merrill-Lynch)  to the stand, as well as Asheville police Sgt. Brown, who spent most of the day testifying at the various trials. Police moved to arrest after Dowell complained that protestors were not welcome on the property, Sgt. Brown said.  Under cross examination from Williams, Sgt. Brown revealed that the Asheville Police had been alerted to the planned rally by Bank of America.   

“They have an intelligence unit” he testified, “The Bank of America Director of Security out of Charlotte…certain intelligence information passed to and from the Asheville Police Department.”

In a dramatic scene, the police video of the Bank of America action was shown.  As Judge Young, the prosecutor, defense attorney Scales, defendant Williams, Sgt. Brown, the court bailiff and another court official clustered together by the judge’s dais to view the laptop screen, the chants and statements of that day rang through the courtroom: “No money for coal. No more money for coal…” and “Our children get sicker, their profits get bigger.”  It was an unusual scene in that basement courtroom, that is more often the site of an assembly line justice of guilty pleas and fines collected as one low income person after another is sentenced for misdemeanor offenses.

Sgt. Brown, during cross-examination, could not recall if his order to move from the grass in front of the Bank of America came before or after defendant Thomas Beckett arrived on the scene, Beckett was found not guilty because, as the judge declared, there was “reasonable doubt” he had heard an order to move. Beckett is a local attorney who had just happened upon the scene and stepped off the sidewalk to take photos.  Caleb Shaw, an activist with the occupy movement, and facing other occupy related charges, was found guilty.  Sgt. Brown had characterized Shaw as stepping back on to the grass in an “act of defiance.”  Both Williams and Shaw were found guilty and sentenced to time served.

After the lunch break, we returned to the second floor courtroom for the trial of citizen journalist Lisa Landis. We shared the tiny courtroom elevator with Buncombe County District Attorney Ron Moore, under scrutiny because of missing guns, money and drugs from the county evidence room.  Also on the elevator was Assistant District Attorney Fletcher and defendants, Norris, Landis and Becket, and Defense Attorney Scales and Legal Observer Rawls and myself. Quite a mix of players in the courtroom dramas unfolding that day.

Lisa Landis "Glo Lady"

Landis was charged with “impeding traffic.”  Two other charges, “resist, obstruct & delay” and “blocking the roadway” were dropped by the prosecutor just prior to the trial. Landis has been both documenting and participating in various Occupy Asheville events since its inception. Landis, a former URTV public media producer, and 4 others, including this writer, had been picked up on warrants issued after the Nov. 2 march and rally after being easily identified and targeted from police video tape of the event.  Landis maintained she arrived at the Nov. 2 rally with no intention of risking arrest, but rather to act as a journalist.  This writer was serving as a Legal Observer, keeping close to the march and rally and taking note of all police, protester interactions. I was later arrested on 3 warrants while serving as a legal observer for a Southeast Student Renewable Energy conference-led march on Nov. 6 through downtown Asheville.

During Lisa Landis’ (also known as Glo Lady) trial, Sgt. Brown was again called to testify. When asked by Landis about the police video, Brown indicated that he used a video camera on his shirt to record the event.  Landis’ own video was introduced as evidence and once again, the chants and high energy of the Occupy Asheville rally reverberated through the Buncombe county District courtroom: "How do you fix the deficit? End the Wars! Tax the Rich!"

Some of Asheville's Legal Observer Team

This Legal Observer was called again to the stand. As part of our training we note the presence of any media at marches and rallies.  I testified that I had observed Landis, who I recognized as a citizen journalist, standing across the street from Vance monument, on the sidewalk, filming with her camera on November 2.

There are numerous videos and surveillance of Occupy Asheville events. One civilian forensic  technician, Lynn Fraser, hired by the Asheville Police Department posted on her Facebook account after a day of filming a march and rally, “Glad to be off work and not dealing with dirtasses that want to preach their 'Constitutional rights' to me, then in the same breath tell me that videotaping them in a PUBLIC park (which none of them worked and contributed tax money to pay for) is an invasion of privacy," Her comments, including a later post saying “some people just need a hug…around the neck…with a rope” resulted only in a suspension with pay.

As Landis’ trial continued, she testified, “In my role as a journalist I filmed my whole participation. I heard a siren and got on the sidewalk …I did not want to be arrested. I never heard any verbal command to get off the street."

Sgt. Brown testified that when he first arrived in an electric car, the march was underway, and that  he stepped out of the car and “gave a loud command: ‘move to the right. Get off the side walk’, and motioned to the side walk.”  He further testified that he then closed off the streets “trying to mitigate the public safety threat.” 

Under cross-examination from Defense attorney Scales, Sgt.Brown could not say if or when he specifically ordered the defendant Landis to move. This legal observer, who accompanied the entire march, never heard such a command. Nor did the notes of other legal observers reflect such a command.  In fact, as Landis would testify, “I was under the assumption that Asheville police were escorting the picket. ” 

Defense Attorney Scales’ motion to dismiss was denied.

In his closing remarks, the prosecutor, Assistant District Attorney Fletcher, in an odd effort to discredit the defendant and witness, called Landis  “cowardly…hiding behind a camera.” He then characterized this writer and Legal Observer witness as “cowardly… hiding behind a notebook.”

Despite her clear role as a citizen journalist, Lisa Landis was found guilty and sentenced to time served. Landis immediately indicated her intent to appeal the sentence, telling the judge, “I was targeted and forcefully arrested because I continue to speak about the corruption of District Attorney Ron Moore…I will not stop until Ron Moore is arrested.”

Attorney Scales out of court

In closing remarks, Defense Attorney Scales said the state has taken “an extremely adversarial position," one that is “not sympathetic to protests of any kind.”

 “The DA calls Ms. Landis cowardly," Scales told the judge.  "She is not hiding behind anything. They picked her out, singled her out, singled Ms. Hanrahan out and several others."
 

Thus ended a dramatic day in court for Occupy Asheville defendants arrested for speaking and acting nonviolently to call for social and environmental justice in these urgent times.  

Upcoming trial dates:  May 24, 2012 – Legal Observer Clare Hanrahan, on two remaining charges after Nov. 6 arrest on warrants based on video surveillance of the Nov. 2 march and rally.

June 28, 2012.  The remaining 21 defendants arrested for First Amendment activities Nov. 2 and Nov. 11, 2011.

Community support needed as these trials continue.