Targeted NYC Non-violent Protest Defendants Still Await Sentencing

Demonstrators threatened with Jail time for being "Chronic Protesters"
Case Update: The Appellate Division advises that the Article 78 Petition is not scheduled to be submitted to the judges there until September 7, and then could take a month for them to decide. So the sentencing will not be on July 26. The effort by the DA's office to unseal dismissed cases and use the dismissed allegations to obtain heightened sentences is unprecedented and has roused concern across the New York community. The concern has been sufficiently great that at least two interested community groups have weighed in with amicus briefs in the Appellate Division.

How this case began:
On March 26, 2003, 10 days after the murder of Rachel Corrie, and 6 days after the United States attacked Iraq, a coalition of peace and justice activists staged a demonstration in midtown Manhattan. The activists brought a model of a Caterpillar bulldozer into 5th Avenue next to Bank Leumi, donned signs that said “Witness to Israeli War Crimes”. They doused themselves in fake blood, and lay down across 5th Avenue during rush hour, chanting, “Occupation is a crime, from Iraq to Palestine”, 11 of the activists were fastened to one another with plastic tubes. The action brought international media attention to American opposition to U.S. policy in the Middle East. It also got the attention of the New York Police Department, which brought a number of emergency vehicles to the scene, as well as dozens of police officers. The police quickly cleared 5th Ave., cut the plastic pipes, and arrested 16 of the demonstrators. None of the passersby who had physically attacked the demonstrators were arrested.

The 16 were charged not only with Disorderly Conduct, the violation which covers blocking traffic, but the more serious charge (a Class A misdemeanor) of Obstructing Governmental Administration. While the staff of Robert Morgenthau, the District Attorney of Manhattan, did not allege violence or property damage, no plea bargain was offered. (It has been common practice in similar cases for the D.A. to offer to drop the top count in exchange for a guilty plea to the lesser charges. The defendants‚ attorney indicated the defendants‚ willingness to plead to the Disorderly Conduct charge, but the D.A. refused to negotiate.) In the absence of a plea offer, the activists were forced to go to trial. After a 5-day jury trial presided over by Judge Robert M. Stolz (a member of the Israel Committee at his synagogue), all 16 activists were convicted of all charges against them. In an unprecedented move, the District Attorney immediately asked for jail time for the convicted activists, amending that request in an April 9 sentencing letter to include only the eight activists with “previous contacts with the criminal justice system”. The “previous contacts” cited were primarily dismissed and sealed protest cases. The use of dismissed charges to justify enhanced sentencing has created an uproar in the legal community, as elected officials, civil rights organizations, and criminal defense attorneys have lined up to denounce Morgenthau’s tactics.

On May 12 2004, 12 of the 16 defendants were sentenced. All 12 received a one-year conditional discharge with 7-10 of community service and close to $100 in court fees each. 2 also had $500 fines levied against them because of their involvement in Operation Homeland Resistance, which led to their arrest in May of 2003. The sentences were unusually harsh for cases arising from non-violent protest. The four defendants yet to be sentenced are those whose records were unsealed.
The defendants in this case and their supporters believe that they have been singled out for disproportionate prosecution for three reasons:

- The defendants condemned U.S. support for Israeli policies in a high-profile protest in a city whose officials are intolerant of criticism of Israel. Every mayor of New York City including Bloomberg, has made a “solidarity visit” to Israel. Many New York elected and appointed officials, including the District Attorney and the judge in this case, are on record as supporters of U.S. backing for Israel. The defendants believe that had they been protesting a different issue on March 26 of last year, they would have been offered a plea agreement, and a jail sentence would never have been on the table.

- The Bloomberg Administration is trying to create a reputation for New York City as being harsh on protestors in order to discourage dissent during the upcoming Republican National Convention. Indeed, D.A. Morgenthau threatened “1000 arrests per day” during the RNC.

- The four defendants whose records of dismissals were unsealed are perceived to be affiliated with the AIDS Coalition to Unleash Power (ACT UP). ACT UP’s style of direct action, which has galvanized non-violent resistance movements throughout the group‚s 17-year history, is precisely the type of effective opposition that Bloomberg and company most fear. The move to jail these 4 activists is seen as an attempt by Morgenthau, who has been in office since before ACT UP/NY was founded in 1987, to settle old scores with the group.

In response to the District Attorney’s sentencing letter, the activists‚ pro bono attorney, Stephen Edwards, petitioned the NY State Supreme Court to order the defendants‚ records resealed. On May 20, Judge Cataldo, the Supreme Court jurist who had agreed to the D.A.'s original request to unseal the records (without the knowledge of the defendants or their lawyer), issued an opinion refusing to reseal the records. On May 24, Edwards petitioned the Appellate Division to overturn Cataldo's decision, and the Appellate Division issued on emergency stay of the last 4 activists‚ sentencing pending a decision by the appellate panel.

The upcoming decision has far-reaching implication for both activists and for other people facing criminal charges. If the Appellate Division allows the unsealing to stand, it will undermine fundamental principle of “innocent until proven guilty” in New York State.

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