In the almost five months that Occupy Denver has maintained a presence downtown, the group has experienced more than 100 arrests. Add to this mix upwards of seventy lawyers, hundreds of court dates and an attempt at a federal injunction, and the results become tough to track. Yesterday, Westword caught up with Jes Jones, a boardmember for the National Lawyers Guild of Colorado, whose role it is to do just that.
The defendants are all "in different positions," Jones says -- and for their attorneys, this is both a blessing and a curse. In some cases, for example, their clients' arrests weren't captured on video, while in others, the evidence is more substantial. During the 2008 Democratic National Convention, for which the NLG also served as legal representation, the mass arrests all took place at the same event on the same day and were seen by the same judge, who was called in overnight. In contrast, Jones notes that some Occupy arrestees "are really active and vocal protesters, some were on the sidewalks trying to comply, and others were just randomly visiting. There are so many different charges and DAs and judges and things we did not have to deal with during the DNC, [and] that makes it all that much more complicated."
All of the lawyers working with occupiers have volunteered to take on their legal issues pro bono. In the new year, group strategy meetings between attorneys have grown less frequent but are still regular and accompanied by mass e-mails. But in the entire Occupy Denver caseload, only a small handful have ended or been dismissed. David Glenn, who was arrested on November 12 and charged with disobeying a lawful order, was set to be the first case to go to trial last Monday, but his case has since been continued -- and so have many others.
"It wouldn't surprise me if some of these Occupy cases lasted until late fall," says Faisal Salahuddin, an attorney with Killmer, Lane & Newman who is overseeing five Occupy Denver cases. "In some of these cases, they just handed over a big haystack and said, 'Hey, go through this.'"
Here's a date-by-date update on each set of Occupy Denver arrests.
October 14: For Occupy Denver's first large-scale altercation, Jones' records show 22 arrests, predominantly for charges of unlawful conduct on state property, with a few outliers focusing on false information and resisting arrest. Because the event took place in the group's first home of Lincoln Park, on state property, all but two of the cases are being handled in county court. To date, fifteen of these cases are active, and seven people have pleaded guilty. In the meantime, many are facing additional charges they were not ticketed for that night.
"One problem we're seeing is that because these fifteen cases are still pending, prosecutors are still adding charges -- most often trespassing,'" Jones says. "From my perspective, it seems like they do one thing and when the district attorney is unsuccessful, it encourages them to plead out when they add all these other extra charges. The DA has the discretion to add charges up until the day of trial, but all the clients don't know that."
October 15: The next day at Civic Center Park, police arrested 27 protesters, only one of which is a county case -- specifically the sexual misconduct charge against previous Westword cover boy Corey Donahue'. The most common cases this round were disobeying a lawful order, interfering with police authority and obstructing a street or passageway. Of these 27 cases, 23 remain active, Brenda Kaiser-Kee's charges have been lost (and are assumed dismissed) and three people have taken guilty pleas.
In most of the Occupy Denver cases to date, the standard -- and "almost too good to be true," says Jones -- offer is that of deferred judgment. Unless protesters have an established criminal record, they are typically offered the opportunity to plead guilty for six, nine or twelve months of probation, after which the crime is erased from their records if they are not arrested again in the interim.
"In my opinion, it puts a huge damper on their ability to exercise free speech," Jones says. "It really scares people into saying they will lay low, even if they have something to say or to protest. For some of the clients, that's a great deal, but for others they say, 'No, I won't take that. I still want to protest and stay here for the reason I started.'"
Deferred judgment was notably not an option for cases resulting from the 2008 DNC. Most deferred judgments so far are accompanied by a $100 fine and anywhere from four to 24 hours of community service. Probation occasionally incurs supervision fees, but a few cases have earned unsupervised probation.
October 22: On this day, protesters put together an unplanned march down Colfax to protest police brutality. During this, police arrested one man for destruction of city property when he put up stickers, and he has since accepted deferred judgment.
October 23: Although not directly tied to Occupy Denver, a raid on a local squat ended with four arrests for the class three felony charge of burglary. All four are still active, and though the named individuals are eligible for probation, they also face the possibility of four-to-twelve years in prison.
Click to read more about Occupy Denver's pending cases -- and plans for the future.
October 29: Two days before Halloween, a mass action at Civic Center Park ended in nineteen arrests, one involving a juvenile female. The evening introduced the occupation's first two felony charges, though John Sexton's original charge of felony assault on a police officer has since been commuted to two municipal charges: interference with police authority and resisting arrest. Thirteen of the cases are active, three were dismissed and five people have pleaded guilty.
November 12: During a Saturday protest, police arrested nineteen protesters, four of whom have since pleaded guilty. The remaining cases are all still active. This event marked a push on behalf of the National Lawyers Guild to ask protesters to apply for public defenders, to make the city take responsibility for their legal fees and to promote greater public awareness. However, after four protesters earned failure-to-appear warrants for missing court hearings regarding their cases, this stance was reversed. The NLG continues to oversee the overwhelming majority of Occupy court cases.
"Maybe they felt like they didn't have support or didn't know what to do, but I felt terrible," Jones says. "After that, we stopped emphasizing that, because it doesn't benefit the client at all, which is our biggest concern. The biggest thing is just that they feel like they have someone on their side, so we made a decision that we were not going to do that.
November 13: The following afternoon, Corey Donahue and two others were arrested for charges including inciting a riot, resisting arrest and second-degree felony assault after a scuffle over a card table ended badly.
December 19: For more than a month, Occupy Denver evaded altercations with police enforcement -- and then the park was lit on fire. During its largest action in recent months, nine protesters were arrested, eight of them for municipal charges and one for felony arson. Michael Clapper, a 22-year-old from Westminster, has since pleaded guilty to fourth-degree arson. This is another issue Jones sees as a trend.
"At the beginning, we were seeing no felonies at all, but at the end, the city now ends up pressing for felonies whenever they can," Jones says. "I think that shows they're fed up and trying to dissuade people from protesting by saying, 'If you run with this crowd, you get a felony.'"
On December 16, three days before the fiery protest, Family of Love protester Katherine Abdy was arrested and charged with felony burglary (the same charge as those arrested when the squat was raided) during a dumpster diving trip to collect materials to build forts in Civic Center Park.
In other Occupy-related cases, seven people were ticketed and charged with municipal violations for traffic offenses incurred while supporting Occupy Denver. One woman, Natalie Wyatt, was charged with disturbing the peace when she honked an airhorn from her car, Daniel Garcia was notoriously ticketed for illegal use of a car horn, and five people earned tickets for impeding traffic to pull over their cars and make donations. All but that of Robert Kuykendall, a plaintiff in the federal case to file an injunction against the city and county on behalf of Occupy Denver, have been dropped.
In the future, Jones predicts a handful of civil cases against the city or the police department following the closing of Occupy Denver's first criminal cases. But that could take a while. Some cases require additional advance hearings to negotiate issues such as whether the First Amendment is an affirmative defense (in some cases, it has been prohibited), while the discoveries for all of the October dates and the November 12 cases were released simultaneously. Several of those who have pleaded guilty have done so in order to keep from losing more time to their defenses.
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And it takes money: Although Jones has no estimate for how many billable hours the National Lawyers Guild has sacrificed on behalf of the city in order to do this pro bono, she has a small example: Early on, city attorneys quoted the NLG $350 apiece for copies of each defendant's discovery -- the entire collection of evidence used against the protester. Although a court order has since waved that requirement, this fee is only a fraction of what the city would have to pay a public defender for each of more than one hundred cases.
"What would have happened if we didn't step in is that if these clients wanted city attorneys, they would have to provide public attorneys for any of the indigent clients," Jones says. She estimates roughly 80 percent of the defendants could fit into the indigent category. "It's really been breathtaking that so many attorneys have come in and volunteered their time and effort, and I don't think the city realizes what that means for it."
But neither do the taxpayers, says Salahuddin. "We are all doing this pro bono because we believe in the First Amendment," he says. "Assuming you believe that the point of all of these excessively ridiculous crackdowns was to restore order, to clean the park up so everyone could use it, that has been done. What is left? If the taxpayers were upset with Occupy Denver for all that money it took to regulate them, now it's time for them to get mad at the city for spending so much unnecessary money to prosecute them as though they were murderers."
More from our Occupy Denver archive: "Photos: Occupy Denver shuts down traffic during first mass event of 2012."