When I went to the courthouse for the first part of the Picnic Day preliminary hearing two weeks ago, some of the defense attorneys present in the courthouse, not involved in the case, asked me what “that was about” – referring to the protesters.
Like many, they figured that the protesters were naïve and their pleas would fall on deaf ears. The protests, quite frankly, were considered a bit of a joke around the courthouse, and when the protesters weren’t there on Wednesday, many asked me where they were. The truth is that, while I knew the protesters, I really had nothing to do with the protests and was as surprised as they were that the protesters weren’t there on Wednesday.
On the Vanguard, with the story on Tuesday’s court hearing, we ran a photo of the protesters, leading some of our commenters to focus on the number of protesters there. The number of protesters was fairly small. But if you focus on numerical numbers only, you miss some of the key points here.
First of all, there was a fairly large organizing group. There were probably 40 people or so during the course of the last four months heavily involved in this issue. As these things go, that is a fairly large organizing group.
Second, it was a coalition of a number of different groups. You have the People Power Group, organized as a local activist off-shoot of the ACLU. You have the Phoenix Coalition, which has a large core group in Davis. You have Indivisible YOLO, which is a fairly large group. You have Yolo County Progressives, another group that has emerged in the last year. And then you have kind of a more loosely affiliated group of people who have all coalesced around the issue of police oversight and, in particular, the Picnic Day group.
I only go through that exercise to illustrate that the number of people involved in these organizations numbers in the hundreds, if not the thousands. But there is a relatively small number of committed activists, and an even smaller group available during the middle of a business day to actually hold up a sign and protest.
Nevertheless, I can tell you that size often does not matter. I remember in my younger days, my most effective counter-protest involved four people in the middle of an anti-abortion rally, with signs stating “honk if you’re pro-choice” – to which hundreds of ongoing cars obliged, much to the chagrin of the protesters.
Scoff at the notion that protest and direct action makes a difference? On August 19, William Kelly wrote the piece, “Do We Care About the Picnic Day 5?” In it he urged people to contact District Attorney Jeff Reisig to urge him to drop the charges.
In the Enterprise, David Stubbins responded to Mr. Kelly and argued that we ought to let justice run its course. He wrote that Mr. Kelly “seems to be arguing that charges should be dropped” because the defendants, who are “young people,” could, presumably as a result of conviction, be “separated from their families, their communities (and) their careers.”
Mr. Stubbins scoffs at this notion, arguing with “why not let the prosecution run its course?” He added, “Dropping charges for ideological reasons would leave a cloud over the defendants and the judicial process. If the defendants, as individuals, are not guilty, they should be acquitted; if they are guilty, they should be convicted.”
The reality is that the naïve protesters who asked the DA to drop the charges prevailed in the end. Oh yes, I’m well aware of the fact that the defendants in this case have admitted to felony crimes. That’s how the system works.
The reality is that all sides came away from this unhappy – and that, Defense Attorney Mark Reichel told me, is the definition of a plea agreement.
But the reality is that on September 5, 2018 – assuming that the defendants in this case keep a clean record – they will have no criminal record. The felony resisting arrest was plead to as a
deferred entry of judgment, meaning after a year it goes away, as long as the defendants do not commit a new crime and they complete their restorative justice program.
The misdemeanor battery carries with it a year of informal probation – that is the lowest level, they are not required to check in to the probation department, they are not searchable, and all they have to do is not commit a new crime.
So the reality is that, while the DA did not outright drop the charges, they in fact put forward a path to make the charges go away.
Without community pressure, would that have happened in this case? While that’s at least a debatable point, I will argue here that it played a strong role in the decision.
What is the upside for the DA to continue to pursue charges in a high profile case? They can argue that they are protecting the community, the public follows the case and believes that the bad guys represent a danger to the community, and the public therefore supports the efforts of the DA to put the “bad guys” away.
So let us quickly look at the Picnic Day case.
First, the public was divided on the issue of whether to even prosecute these guys. Some people clearly believe that the defendants were in the wrong and assaulted the police. Others thought that the police were in the wrong and assaulted the defendants and the defendants were defending themselves. Some believe that the police actions were racially motivated.
So, from the start, the community was divided – which meant that whichever way this went, someone was going to be mad and if the DA prosecuted and earned conviction, they would have to deal with angry activists who would continue to press their case.
So the upside that the DA would normally get from a high profile investigation simply wasn’t there.
Added to that, this was by no means a sure thing for the prosecution – far from it. I’ve said this before – this case could realistically have gone either way. That played a huge role in both sides being willing to reach agreement. The reality is that the defendants were risking potential prison time and the DA was risking an acquittal.
Third, I think Ryan Couzens was fairly honest when he laid out that the defendants were young, they lacked criminal records, and they agreed to this fairly early in the process.
The youth factor is important because, even if the police were overly aggressive and less than transparent about their handling of this matter, I think the defendants probably overreacted to the circumstances. In my view, it is an open question about whether that rose to criminal conduct, but both sides should have handled this better.
Given their youth and lack of criminal record, the DA was willing to give them more of a benefit of the doubt that this was a result of poor judgment in the heat of the moment rather than criminal malice.
And finally, the DA hadn’t expended a huge amount of resources – yet – in the proceeding and that played a role as well.
Add it all up – the DA’s office had to face the fact that they had a fairly weak case that could go either way and could end up in a hung jury, there were defendants who were probably not extreme dangers to the community, and there was no real upside in terms of public support for them to continue the prosecution.
The protests then acted as a signal to the DA – a reminder that the public was not fully behind their effort, along with a nuisance that had the ability to continue to raise difficult questions in the media. Add that all up, and making this case go away was in the best interest of the DA.
My view is, without the protests and public pushback, the DA might have pressed on because it was a case where police officers were involved and injured. So the protesters, in my view, played a key role in the decision to end the prosecution of this case.
The DA’s office got to save some face here, as they were able to get them to plead to felonies. But they plead to felony resisting arrest rather than felony battery on a police officer. And those felonies will go away after a year.
In the end, I would consider this a win for the defendants and the protesters. Once again, the police went from the sensational press release on April 24 to no record for the defendants on September 5, 2018, a pretty remarkable turn of events.
—David M. Greenwald reporting