Judge Timothy Volkmann denies dismissal for ‘final four’ in River Street bank occupation

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NOTES  BY NORSE:   Former Santa Cruz Eleven defendant and photojournalist Alex Darocy covered the hearing below at http://www.indybay.org/newsitems/2013/03/12/18733496.php?show_comments=1#18733512 .  I presented my own take with links to the motions filed to dismiss at http://www.indybay.org/newsitems/2013/03/07/18733298.php .

Regarding the trespass charge, it was selectively enforced and seemed to be done as a political sop to anti-Occupy authoritarians as well as a form of  SCPD face-saving.  Plus it seemed a pretty convenient opportunity to go after activists long-publicly critical of police misconduct and alternative media whistleblowers.  If there was a real concern about “trespass”, it should have been a timely bust, done within 24 hours of the occupation and uniformly applied to everyone there.  Clearly this was a combination of tokenism, scapegoating, and intimidation against other direct action critics of Wells Fargo and large corporate criminals.
Free  speech and free assembly considerations also play a significant role–not to mention the community reality that the building was long-vacant (and has remained so).  Prosecutions in a dozen other cities have led to acquittals or been dropped for similar occupations.  First Amendment protections are an explicit part of the 602 trespass statute which were ignored (by both prosecution and defense).
In terms of harm-reduction, the vacant bank could have provided shelter for a population that has a far higher death rate than the terrified mob that shows up at City Council ranting about needles, drug addicts, the homeless, and “crime”.

Regarding the “felony vandalism” charge, prosecution witnesses agreed there was zero evidence of explicit documented vandalism by any of the four (not to mention the eleven originally charged).    Nor were any vandals identified.

The discredited assistant D.A. pursuing this case (Rebekah Young) was already sanctioned $500 for repeatedly violating court orders and keeping evidence from the defense.

To justify this  prosecution, Young presented a tenuous torturous “aiding and abetting theory” which suggested “aiding and abetting the trespass” meant that the “natural and probable” vandalism consequences made the defendants responsible for $23,000 in vandalism and subject to 4 years in prison. 

Defense attorneys pointed out that courts have never ruled that vandalism is a “natural and probable” consequence of the crime of trespass. This is a novel new doctrine apparently trotted out to respond to the lynchmob mentality stalking Santa Cruz (which masquerades as some kind of public safety “protection”). Or perhaps for D.A. Young to magically transform a discredited prosecution into a “win” so she can get a passing grade on her homework, somehow, after having already flunked.
150 “trespassers” alleged (none arrested at the scene), 139 unknown. 0 known vandals. A massively overcharged butcher bill by Wells Fargo. According to defense attorney Bryan Hackett, (a) there has to be someone that the defendants “aided and abetted” in the original trespass (and no such showing was made—only that the defendants either were in the building and/or communicating with those in the building), (b) there has to be a someone they aided (no one was identified), and (c) it must be shown that action led as a “necessary and probable” consequence to vandalism (also no evidence other than broad claims that it was a tumultuous situation.
The issue is likely to be appealed to a higher court once a transcript is available—which must be done within 15 days of Judge Volkman’s decision. That should be happening shortly.

Previous occupations in Santa Cruz (such as that of the Heiner House in 1992, or the Campbell St. House in 1996, have never led to felony charges (there were originally two felonies and two misdemeanors charged).  The current form of judicial terrorism against activists does further damage to a First Amendment already diced and shredded by the Obama/Bush demolition team.

Judge Timothy Volkmann denies dismissal for ‘final four’

in River Street bank occupation

By Cathy Kelly
Posted:   03/11/2013 04:41:37 PM PDT
SANTA CRUZ — In a courtroom full of activists, Judge Timothy Volkmann on Monday denied a motion to dismiss trespassing and vandalism charges against four remaining defendants accused of the takeover of a former Wells Fargo Bank building on River Street.
Gabriella Ripley-Phipps, Franklin Alcantara, Cameron Laurendau and Brent Adams are among 11 people originally charged with trespassing, vandalism and felony conspiracy for a high-profile occupation of a vacant former bank on Nov. 30, 2011.
Summarizing the 350-page preliminary hearing transcript, Volkmann described Ripley-Phipps as the group spokesperson and said the other three were seen inside the building at least twice. He then noted “it appears the major tussle centers on the felony vandalism charge” and whether that was a “natural consequence of the (misdemeanor) trespass (charge).”
Volkmann said his colleague, Judge Paul Burdick — who presided over the preliminary hearing — found that the vandalism was a natural and probable cause of the trespass due to the size and emotionally charged nature of the crowd, the stacking of furniture against the doors and other barricading behavior, the length of time they stayed inside, and other factors.
As prosecutor Rebekah Young put it, “They were in there for the long haul.”
The defense challenged Young’s theory that the four are guilty as aiders and abetters. In other words, that if they entered the bank with the crowd, and if the damage to the building was a “natural and probable” result of that entering, they are guilty of vandalism even without direct evidence of their part in the destruction of property.
Volkmann listened to Santa Cruz defense attorneys Lisa McCamey, Jesse Ruben, Bryan Hackett and Alexis Briggs argue that there is little or no direct evidence of who damaged the bank. They also argued the vandalism charge could not hold under the aiding and abetting theory without more proof of the circumstances surrounding the entering of the building.
“There is no evidence they agreed to trespass,” McCamey said. “Their mere presence is not enough for this theory.”
Volkmann ruled against them, noting there is a lower standard of proof the District Attorneys’ Office must meet at the preliminary hearing stage. He said the defense attorneys’ arguments “may be applicable” at trial.
Trial is set for May 13, but Ruben said he anticipates a conflict due to a homicide trial he is taking part in.
The group is due back in court April 8 for a status hearing.
A group of supporters and activists came to court for the afternoon hearing, as they have several times, with flyers urging “Drop the Charges! Santa Cruz Eleven: The Final Four.”
The case began after people swarmed into the former bank after an Occupy Santa Cruz march, causing damage now estimated at about $25,000 and sparking a tense situation with police. Three days later, the group walked away.
The four remaining defendants are out of custody.
Earlier, Burdick dismissed charges against seven people due to insufficient evidence. He also dismissed a conspiracy charge the group had faced and fined the District Attorney’s Office $500 for failing to provide evidence to defense attorneys.
Follow Sentinel reporter Cathy Kelly on Twitter at Twitter.com/cathykelly9
For more info: santacruzeleven.org