Beating the Drum
Free speech doesn't come cheap.
On Tuesday evening, protesters wearing yellow, white, black and red converged on the University of Colorado from all sides. Officially a show of support for Ward Churchill and academic freedom, the Four Directions March could just as well have been a dress rehearsal for Denver's annual fall follies.
On the first Saturday in October, the Sons of Italy-New Generation once again plan to lead the Columbus Day Parade that they resurrected in 2000, after protests by Native American activists (and maybe-Native American activists) laid the parade to rest back in 1992.
Ward Churchill was one of the protesters arrested for blocking the parade in 1991; he was acquitted the following April. Last October, he was again among the protesters arrested for blocking the parade; this past January, he and seven others were acquitted of failing to obey a police order to disband.
Eric Ruderman was the foreman of that jury. "I didn't want to be on the jury," he says. "I've been kicked off a dozen juries." Not that he doesn't believe in doing his civic duty -- he does. But Ruderman's a lawyer, which makes him an unattractive prospect for attorneys on both sides, and he himself had a trial scheduled to start the day after he was ordered to report to the Denver City and County Building. He consoled himself that a county trial couldn't last more than a day -- until he saw what a large jury pool was being assembled and realized that this was not your average neighborhood spat. He wound up sitting in Judge Kathleen Bowers's courtroom for three days, listening to the evidence.
Not much of it came from the prosecution.
Two weeks before trial, Glenn Morris and another defendant had requested that they be allowed to testify while holding a ceremonial pipe. Replied Assistant City Attorney Bob Reynolds, "They can place their hands on a ham sandwich or baloney sandwich, as long as they tell the truth."
There's a saying that a grand jury can indict a ham sandwich. But this jury wasn't about to convict on one. "They put on a terrible case," Ruderman says of the prosecutors. First they showed an overhead surveillance video that moved at such a super-fast speed no one could tell what was happening, so the judge threw it out. Then they showed a video that had been made at ground level by a city employee, which played for about ninety minutes as a police officer described the action on the tape.
More interesting was Denver Police Department Division Chief Steven Cooper's testimony about how DPD officers had been meeting in advance with both members of the Columbus Day Parade Committee and some of the defendants, "basically to see how they could make this thing run smoothly so that no one was inconvenienced," Ruderman remembers. The final understanding was that the parade would go on, the protesters would peacefully block the street, and the police would then disperse them, allowing the parade to continue. The tape showed the protesters reaching the intersection of 19th and Blake, where the barriers had been moved back "pretty much in invitation," Ruderman says, so that the protesters could come in, "pounding drums, hooting and hollering and doing what demonstrators do."
Ruderman pauses for a moment to remember just what he did when he demonstrated in Chicago in 1968, during the Days of Rage that marked the Democratic National Convention. The Columbus Day protest looked pretty tame compared to that. While DPD officers held up the parade about a block away, Glenn Morris talked with the protesters' police liaison. Then, shouting through a bullhorn, an officer told the protesters to disperse. He told them the same thing two more times.
Seven of the eight defendants testified (the only one who did not was Longmont employee Glenn Spagnuolo, who was much more garrulous on a local radio show two months ago and who is now being investigated by that city); they all said that the drums were so loud they didn't hear the police order. The defense attorneys even demonstrated just how loud those drums could be in a courtroom.
That wasn't all the defense demonstrated. The defendants talked about how Colorado was the first state to make Columbus Day an official holiday, honoring a man who'd committed genocide on the native peoples of a far-from-New World. They talked about the times in their lives when they'd been victims of ethnic intimidation, and how they felt the Columbus Day Parade violated the law against ethnic intimidation. "As I heard what the case was all about, I was fascinated," Ruderman says. "When I was growing up in New York, all I knew was we got Columbus Day off. I thought the debate was a tempest in a teapot."
Or a tempest in a tepee. But now he realized it was much, much more.
In the beginning, Ruderman had predicted to another juror that the trial would last three days. After he heard the defendants talk about their experiences, about how they'd broken one law to uphold another, he thought that they'd be there much longer: The prosecution would no doubt bring in experts to rebut the ethnic-intimidation testimony. Someone from the Sons of Italy to talk about Italian-American pride, someone from the Columbus Day Parade committee, Queen Isabella, anybody.
But the prosecutors didn't. Instead, they rested.
Ruderman hadn't wanted to be on the jury, and he didn't ask to be the jury foreman, either. But when the job fell to him, he says, "I knew what jury instructions were, and I knew how to follow them." The jurors watched the tape again and eliminated four of the defendants, since they couldn't even find them at the parade, much less determine if they'd heard the order to leave. Then they debated whether the other four had disobeyed a lawful order. Most of the jurors said the language was too confusing; nothing in city ordinances prohibits interfering with a parade. "I personally felt they'd followed the script," Ruderman says. "And why did they get arrested for following the script?"
After the third warning to disperse, the officers had taken the protesters out one at a time. When that went too slowly, they took them out two at a time. Finally, they just waved the protesters over in groups. If the police had organized things a little differently, the protesters might have been moved in fifteen minutes instead of holding up the parade for over an hour. Is a fifteen-minute delay too high a price for free speech -- on both sides?
After three hours of deliberation, the jury found all of the defendants not guilty. "The prosecution failed to prove their case beyond a reasonable doubt," Ruderman says. That's what he told reporters outside the courtroom, before also saying that the protesters had done the right thing -- meaning that once they'd decided to protest, they followed the rules.
That "right thing" comment soon blew up into rumors of a runaway jury. "It was absolutely not a case of jury nullification," Ruderman counters. "The prosecution thought it would be a slam dunk."
It wasn't. And a few days later, the city dismissed all charges against the remaining 230 protesters.
That's not the end of the story, of course.
Within a month, Ward Churchill had become a household name in households around the globe -- a name that inspires heated debate. And while the DPD accomplished its mission of keeping the Columbus Day Parade violence-free in 2004, that job could be tougher this year, when the same cast of characters meet again. Shortly after the acquittals, the Transform Columbus Day Alliance asked that the city put an end to the parade and declare that Columbus celebrations are "no longer welcome" in Denver. Instead, the city is working on language for a proposed ordinance that would make it illegal to block a parade, giving law enforcement a better legal tool for quelling protests.
But as we've learned over the past few months, as we continue to be reminded, you pay a price for free speech. "We're going to do a parade," promises George Vendegnia, spokesman for the Columbus Day Parade Committee. "There's a lot of interest this year; people are just tired of this. It's awful funny that these guys are bringing up the First Amendment now. It's our First Amendment right to have a Columbus Day Parade, and the name will never change.
"I should send Ward Churchill a thank-you letter."
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