Saturday, April 7, 2012

"Jurors find Occupy Des Moines duo guilty

"Jurors find Occupy Des Moines duo guilty" by JEFF ECKHOFF, DM Reg April 6, 2012


Deliberations leading to trespassing verdicts take nine hours; appeal

is likely, their attorney says


The attorney for two Occupy Des Moines protesters said she most likely

would appeal Friday’s guilty verdicts by a Polk County jury.


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 Iowa

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 Iowa’s law defines trespassing as entering or

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.


Assistant Polk County Attorney Kevin Hathaway argued, however, that

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

public speech.


“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





Contact Hugh Espey at and David A Goodner at


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