09 March 12
I had been waiting with apprehension for our court date, Monday, at which Avram Ludwig and I would have to go on to trial. We were arrested on 18 October for standing on a sidewalk in Tribeca, though obeying the law, while informing Occupy protesters of their legal rights to walk peacefully in single file under the terms of the permit that was in force outside the Huffington Post GameChangers Awards that night. The allegations written on my summons were:
"At t/p/o [shorthand for the "time and place of the offense"] observed deft [defendant] refuse a lawful order to disburse [sic] (given by Lt Zielinski) from sidewalk that was provided for per [pedestrian] traffic at all times. Had permit issued for Huffington Post Games Changes allowing at least 5ft of unobstructed sidewalk, for pedestrians, but deft refused to comply."
As you may recall, the NYPD had misinformed the Occupy protesters that night that the permit involved at the GameChangers event allowed no access to pedestrian protest. From my nerdy research, I knew that that was wrong. No such permit exists in all of New York City law.
I had given a statement to Gideon Oliver, our attorney, pointing out that I was not able to obey the orders of the lieutenant in question to get off the street because I have such respect for the law in Manhattan that I could not comply with Lt Zielinski's command – a command I knew to be in violation of the permit law in question, which I had checked on. A Kafkaesque situation, surely.
I could not be physically present; on our previous court date, on 5 January, Judge Neil Ross had given me one-time permission to fulfil a commitment I had made to lecture in Australia (joining Germaine Greer for a discussion on feminism held in the Sydney Opera House). Instead, Avram was permitted to appear on behalf of us both.
The DA declined to represent the prosecution for our cases – a move that all of our lawyer friends, my lawyer and my co-defendant called "highly unusual". Avram Ludwig reported to me:
"We went to court; Judge Matthew A Sciarino presided. There were 40-50 young Occupy arrestees there, wearing T-shirts that said, "We Are the 99%" – jackets that read 'Revolution' – in full protest mode; as well as five or six older female protesters. Gideon Oliver and other lawyers from the New York City chapter of the National Lawyers' Guild (NLG/NYC) represented them."
"When the DA said, 'We decline involvement in this case,' even the judge looked surprised. The judge said, 'Case dismissed.'
"The other protest defendants there, who had all been arrested as we had, had had to come back for their trials. When our cases were dismissed, they were startled. They still faced trial. 'How could this be? Why?' A journalist, too, was there and his case was dismissed.
"The only possible reason for the different outcomes is that they don't want a trial that will get publicity. For other people who won't get in the news, it's a different story. A teenage high-school student who was in a crowd was told to move, but she physically couldn't. They yanked her out and threw her in the police van. People couldn't move to follow orders, so they were singled out for arrest. Those people still have to go to trial. It's pure harassment.
"It's obviously a double standard. It's all about media management."
I called Oliver, who is president of the New York chapter of the National Lawyers' Guild. He had generously represented pro bono not only us, but also – together with other NLG/NYC lawyers – all of the Occupy arrests in Manhattan. Did he also see a double standard, I asked, or was this a normal course of justice?
"It was obviously a political decision on the part of the DA's office to be 'hands off' on your case. But there are thousands of Occupy and other protest arrest cases in New York where that doesn't happen – and it should. These people are forced to take pleas – forced to plead guilty when they are not guilty – and go on to trial, where they will be either acquitted or convicted."
In other words, there were people in that courtroom whose actions were no less lawful than ours, who used their protected first amendment rights as we did, yet they are facing days and days of court appearances and possibly 15 days in jail. They would also be facing thousands of dollars in legal fees, were it not that the NYC NLG is representing all Occupy cases pro bono. "In jail", Oliver told me, probably means Rikers Island – a fact about which he had diplomatically not given me details before yesterday, had we been heading there as well – "Which is a rough place. Not a place anybody wants to be spending time."
So, what should we, as citizens, learn from this strange turn of events, in which Avram and I were free to go, while 50 young people and a few elderly women who were in the same courtroom, represented by the same lawyer, facing the same judge, for the same "offenses", were still being prosecuted – by the same DA who had stood down to see us released? "The takeaway? Twofold," Oliver said:
"Public and media scrutiny does matter. The more light we shine on these arrests the better – not just in the protest context, but across the board. But we need to shine a light not just on charges from protests, such as 'disorderly conduct', but also on so-called 'quality of life' policies by the NYPD, such as stop-and-frisk programs that also police public space.
"These policies serve the interests of the 1%, and not the public – and exclude the public from occupying public space and using it for protected first amendment purposes."
So, Avram and I aren't going to jail; but our fellow citizens, who simply did what we did and lawfully exercised their first amendment rights, still may do so – and face the violence of a spell in Rikers. Their cases, too, deserve media scrutiny.