A Polk County District Court jury returned a guilty verdict this afternoon in the trespassing trial of Hugh Espey and David Goodner. According to the Des Moines Register, jurors deliberated for nine hours before reaching a verdict. It was the second prosecution of Occupy protesters arrested last October on the state capitol grounds. Last month a Polk County jury acquitted former State Representative Ed Fallon on the same trespassing charge, accepting his First Amendment defense.
Background on this week’s trial is after the jump. UPDATE: Defense attorney Sally Frank is likely to appeal. Scroll down for details.
Polk County prosecutors tried to exclude “free speech rights” from the trial of Goodner and Espey, Jeff Eckhoff reported for the Des Moines Register last week.
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 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.”
District Associate Judge Romonda Belcher wasn’t buying what prosecutors were selling.
Belcher instead ruled, as in a previous trial involving former State Rep. Ed Fallon, that it’ll be up to jurors to decide whether the protestors were acting reasonably when they violated a state Capitol curfew to remain on the property for a rally last October.
Belcher has reasoned that state law, as spelled out in a 1976 Iowa Supreme Court decision, allows room for protestors to be found “not guilty” if they can show they were reasonably exercising their constitutional rights to speech at the time of arrest. And 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.” In other words, the lack of justification is part of the crime that prosecutors have to prove to jurors if they want a conviction.
“The jury does not have to decide whether they were exercising their First Amendment rights, but whether that exercise was reasonable,” Belcher said.
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. […]
When Belcher rejected that argument, Hathaway then attempted to amend the charges against protestors David Goodner and Hugh Espey to a slightly different form of trespassing – one that would have required proof of intent to harm the property that was trespassed upon but that would not have involved talk of justification. The prosecutor contended that it was only a slight modification and did not involve a new charge.
Defense attorney Sally Frank disagreed.
“It would be like saying a speeding ticket and a stop sign (violation) are the same general thing because they’e both in the traffic code,” Frank said. “This isn’t an error or omission (in the charging documents). This is, ‘We lost an argument and now we want to get something else.’ “
Clearly the jurors accepted Hathaway’s argument (paraphrased by Goodner) that ”If we all followed the David Goodner theory of constitutional law, there’d be no order in society.” I’ll update this post later if further details emerge regarding the jury’s reasoning.
Espey is the executive director of the non-profit group Iowa Citizens for Community Improvement, and Goodner is an organizer with Iowa CCI. Goodner made news last August when he confronted Democratic National Committee Chair Debbie Wasserman-Schultz at the Iowa State Fair.
This verdict will embolden Polk County prosecutors to press ahead with trials of roughly a dozen more Occupy protesters arrested at the same time as Fallon, Goodner and Espey.
UPDATE: Eckhoff posted further details at the Des Moines Register site:
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 the afternoon deadlocked 5 to 1.
Defense attorney Sally Frank said she plans an appeal based partly on the unconstitutionality of the state capitol permit process, which failed to grant protesters a permit on a Sunday. Frank also objected to Belcher’s repeated urgings that the jury continue to deliberate.
“The fact that it took them nine hours shows the level of reasonable doubt,” she said. […]
“It’s just not reasonable,” [Assistant Polk County Attorney Kevin] Hathaway 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, viewed by defendants as a tougher courtroom adversary, succeeded in narrowing the scope of evidence as compared to Fallon’s case. Goodner in a Friday afternoon email said prosecutors “in general presented a much stronger case than they did the first time around. “