"Judge asked to bar free speech defense in (Goodner & Espey) Occupy trial" DM Reg March 29, 2012

"Judge asked to bar free speech defense in Occupy trial" by Jeff Eckhoff - DM Reg March 29, 2012

http://www.desmoinesregister.com/article/20120330/NEWS09/303300028/Judge-asked-to-bar-free-speech-defense-in-Occupy-trial

 

Polk County prosecutors are trying stronger tactics in an Occupy Des

Moines trespassing trial scheduled to begin Monday, arguing that

jurors should be barred from considering “free speech rights.”

 

Earlier this month, former state Rep. Ed Fallon was acquitted in the

first of several trespassing trials when a jury decided that the First

Amendment outranks a state Capitol curfew.

 

Court papers filed in preparation for Monday’s joint misdemeanor

trespassing trial of Hugh Espey and David Goodner argue that the judge

should not cede constitutional decisions to the jury.

 

Fallon was the first Occupy Des Moines protester to stand trial

following 32 arrests at the Iowa Capitol. Monday’s trial is the first

since that decision.

 

Jurors in the Fallon case reached their decision after following legal

instructions from District Associate Judge Romonda Belcher that

defined trespassing as remaining on property without justification.

Jurors were told that, “ ‘Without justification’ allows and protects

entry on public property for the purpose of reasonably exercising

one’s right to free speech, assembly or to petition the government for

a redress of grievances.”

 

But the latest court paperwork — signed by Jeff Noble, the bureau

chief who oversees misdemeanor prosecutors in the Polk County

attorney’s office, and a prosecution intern — argues that the 1976

court decisions Fallon’s lawyer cited as basis for the jury

instruction are no longer the controlling law. Other Iowa cases have

“consistently held that free speech is no defense under Iowa’s

trespass statute,” documents argue. And even if it is, “there are

practical problems inherent in allowing a jury of laypeople to

determine the legal reasonableness of constitutional justification.”

 

The documents cite a Des Moines Register story that quoted a juror in

the Fallon trial explaining the verdict by saying that “the

Constitution supersedes all state laws and regulations.”

 

Because jurors believe such things, “using instructions which

characterize the defendant’s actions as an exercise of constitutional

rights effectively wraps the defendant in the flag and dictates the

outcome of the trial,” according to Noble’s motion. “Other jurors in

future cases may not use the same problematic logic as the jurors

quoted above. But the mere potential for the jury nullification

discussed above is the exact reason why it is the court’s role — not

the jury’s — to determine questions of constitutional law.”

 

The paperwork asks Belcher to bar any “evidence or argument regarding

‘free speech rights’ ” and whether those rights constitute

justification.

 

Lawyers for the Occupy protesters counter that talk of public protest

is essential, given the nature of the offense and that Iowa set up its

trespassing law to allow a little leeway.

 

A 34-page defense motion, signed by Drake University law professor

Sally Frank and two students, includes six pages that cite trespass

cases from all 50 states and Guam. Iowa’s is the only law that

includes the words “without justification,” the lawyers wrote.

 

“Since the Legislature purposely chose to include those words in the

definition, they should be given full force and effect,” court papers

contend. “The best way to do so would be to view ‘without

justification’ as an element of the offense and allow evidence on

justification to be admitted to the jury.”

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