"Jurors find Occupy
Deliberations leading to trespassing verdicts take nine hours; appeal
is likely, their attorney says
The attorney for two Occupy
would appeal Friday’s guilty verdicts by a
Jurors pronounced protesters David Goodner and Hugh Espey guilty of
misdemeanor trespassing. The verdicts came after nine hours of
deliberation and at least four notes from jurors insisting they were
deadlocked and saying they wanted to go home.
The courthouse was already closed when jurors left the building
without comment. Previous communication with District Associate Judge
Romonda Belcher shows they spent most of Friday afternoon stuck at
Defense attorney Sally Frank said she planned an appeal based partly
on what she saw as the unconstitutionality of a State Capitol permit
process that failed to grant protesters a permit on a Sunday. Frank
also objected to Belcher’s repeated urgings that the jury continue to
“The fact that it took them nine hours shows the level of reasonable
doubt,” Frank said.
Goodner and Espey, two of more than three dozen people who were
arrested for ignoring an 11 p.m. State Capitol curfew during a protest
on Oct. 9, were the first cases to come to trial since the March
acquittal on identical charges of former state Rep. Ed Fallon.
Fallon, who acknowledged during testimony in that case that he was
guilty of violating the curfew, nonetheless was found not guilty by
jurors who followed legal instructions drawn up by Belcher. Jurors
later said they had accepted Fallon’s argument — that he was justified
because he was exercising his constitutional right of political dissent.
In this week’s trial, prosecutors tried and failed to convince Belcher
that she, not jurors, should rule on whether protesters can legally
trespass in the name of free speech. Belcher instead ruled, as in
Fallon’s case, that jurors should make the call.
The judge has reasoned that state law, as spelled out in a 1976
Supreme Court decision, allows room for protesters to be found not
guilty if they can show they were reasonably exercising their
constitutional right to free speech at the time of arrest. The
question of what’s reasonable rightly belongs to the jury, according
to Belcher, because
remaining on property “without justification.” So the lack of
justification is part of the crime that prosecutors have to prove to
jurors to win conviction.
“The jury does not have to decide whether they were exercising their
First Amendment rights, but whether that exercise was reasonable,”
Belcher said Monday.
it’s improper to let jurors decide matters of constitutional law.
Courts are designed to have jurors decide what happened, and judges
decide how the law should be applied to those facts, he said.
The issue is made even more complex, Hathaway argued, by one of
Belcher’s previous rulings (rejecting a challenge from protesters)
that, according to the prosecutor, essentially endorsed the Capitol
curfew as a reasonable regulation of the time, place and manner of
“The statute can’t be reasonable and the people violating it be
reasonable at the same time,” Hathaway said. “That’s the sort of
distinction that I’m terrified of presenting to the jury, your honor,
because I can’t make sense of it myself.”
In his closing arguments, however, Hathaway did argue that protesters
never sought a permit before Oct. 9. “It’s just not reasonable,” he
said in quoting Goodner’s stated belief that “the First Amendment was
the only permit I needed.”
“That’s just not how it works,” Hathaway said.
Protesters, who won on the justification issue, nevertheless felt they
had a tougher go in this trial than in Fallon’s.
Hathaway, seen by defendants as a tougher courtroom adversary,
succeeded in narrowing the scope of evidence compared with Fallon’s
case. Goodner said Friday in an email that his side had been denied
the use of witnesses from the previous case and that prosecutors “in
general presented a much stronger case than they did the first time