Deputies Can’t Provide Physical Evidence of Wrongdoing – Judge Weighs Motion to Dismiss
By Crescenzo Vellucci
A “simple” traffic court trial for an infraction is continuing to be anything but “simple” – the judge-only trial of nine people protesting Monsanto in Woodland for “poisoning the world” ran for nearly hours Tuesday in Yolo County Superior Court – and Part II is on tap for next week, March 8 at 1 p.m.
Judge Paul Richardson seemed to be enjoying himself Tuesday – quipping “Thanks for the vote of confidence” after Robert Saunders, one of seven self-representing defendants, said: “You’re intelligent judge, I’m sure you will figure it out.”
But other than that, the Dept. 13 courtroom – absent a jury after Yolo County District Attorney Jeff Reisig’s office charged the protestors with an infraction after they were arrested on three misdemeanors (which would have guaranteed a jury trial) last May 22 – was deadly serious. Extra deputies were in the room along with nearly two dozen witnesses, spectators and news media.
Judge Richardson did not outright dismiss a motion submitted by the defense that charged the Yolo County Sheriff and District Attorney
refused to provide full, possibly exculpatory (evidence that benefits the defendants), discovery to the defendants, noting “We’ll see as court continues if there is some exculpatory evidence.”
Saunders argued that the failure to get full discovery was “gamesmanship” by the DA, which “divorced” himself from the case after filing the charges. “The DA is moving the goal posts…we should be able to examine information if it can find us not guilty,” said Saunders. He said the defense received a letter referring discovery requests to the DA, and a DA’s letter stating it didn’t handle discovery for the case.
Judge Richardson, after hearing those arguments, said he would reserve his decision on a motion to dismiss “in the interest of justice” made by all defendants.
Attorney Rich Dudek is representing defendant Elliot Adams, who resides in New York, and attorney Richard Staff is representing defendant Kahla Mackey – both lawyers are working for free and were recruited by the National Lawyers Guild in Sacramento.
Defendants representing themselves include Saunders, Pam Osgood, Shirley Osgood, Susan Roberts-Emery, Lena Romero, Steven Payan and Mauro DeOliveira. Another defendant, Andy Conn, a longtime Northern California activist and West Sacramento resident, passed away unexpectedly Feb. 2.
When Richardson adjourned Tuesday, it appeared he was looking at the evidence related to whether or not the area in which protestors were occupying was “public.” Defendants claim that is key to the case because they are being charged with “loitering” in a “public” driveway, highway or alleyway.
Sheriff Deputy Sgt. Sam Machado and Lt. Lance Faille, under cross examination, could not say for sure if those arrested were on public property. From a diagram sketched by Machado it appeared that the defendants were 15 to 20 feet from the roadway, and on Monsanto property in a Monsanto driveway.
A lawyer from Monsanto also said he didn’t know if there was a public rightaway when queried by the judge, who admitted “I don’t know the answer, not now,” and adjourned for the day.
“Even if the area they were in was an easement for the public, it still doesn’t make it a public driveway,” said Dudek, who made an impassioned plea to the court for a dismissal.
“The court has it in its power to dismiss this case in the interest of justice. (Defendants) spent a day in jail, and have appeared for every court date (at least four), and the government, the DA, never showed up. The government has a duty to prove it’s a public driveway….but there is no evidence,” Dudek said.
The defendants representing themselves peppered Faille and Machado with questions for hours, and were able to get both officers to admit no cars actually turned around in the driveway because of the protest.
“No evidence of any kind has been presented showing loitering,” said Saunders to the court. Faille, in fact, admitted under questioning that he didn’t see any cars prevented from entering Monsanto, even though he gave the order to have protestors arrested.
Interestingly, Machado could only identify three of the defendants, and couldn’t remember who arrested them, even though he was the supervisor at the protest from the beginning and called in deputies to make arrests. Faille couldn’t identify any defendant without looking at booking photos.
Romero, a college student, repeatedly noted that there is “no evidence to prove we’re guilty. They have no photographs, no body cams, no video taken by deputies.” Both Sheriff witnesses admitted there was no evidence other than their “recollections.”
There was a dispute about the original reasons for the arrest. Although defendants are now being charged with loitering, they were arrested for violating a vehicle code section requiring pedestrians to not “cause an immediate hazard” by running in front of vehicles. Government witnesses did not testify defendants did that, but they did arrest protestors for refusing to disperse and resisting arrest.
Dudek and Staff strongly suggested that if defendants were not violating the vehicle code, the underlying charge, then the other two charges were no lawful, and the defendants should not have been arrested in the first place.
“Did you see vehicles in the driveway, did you see any take evasive action and did you see anyone run in front of a vehicle,” Staff asked the officers. Both just said they may not have, but felt the law was being broken, even though – after being repeatedly asked – they said they did not have any physical evidence to prove it.
The defense presents its case when the trial resumes next Thursday, Marc 8, at 1 p.m. in Dept. 13, and they have several environmental experts ready to testify as to the danger of Monsanto’s work,
Previously, Saunders filed a brief, joined by the other defendants, arguing that the ordinance charging the protestors with “loitering” is unconstitutional and an attempt to “chill” free speech.
“(T)his matter was a peaceful protest where protestors were exercising their First Amendment rights to gather and be heard as to a meaningful interest…(the action) presents no harm to anyone and the court should dismiss in the interest of justice,” the brief said.
Dudek earlier filed a court brief claiming the loitering charge was unconstitutional as applied to free speech activities and should be immediately dismissed.
“Defendant Adams..objects to enforcement of the ordinance as a violation of the due process clause of the Fourteenth Amendment of the U.S. Constitution (and )unduly restricting his First Amendment rights,” according to the trial brief. Recent U.S. Supreme Court cases have tossed out similar ordinances, opining that “freedom to loiter” is protected, Dudek said.
Demonstrators maintain that studies that show Monsanto controls 92 percent of the world’s seed and conducts genetic engineering (GE) to produce GMOs (genetically modified foods), which some scientists and environmentalists insist are linked to human health, and environmental issues.
Activists cite the World Health Organization’s determination that Monsanto’s Roundup to be a ‘probable carcinogen’ and . Glyphosate has been found in groundwater 60-100 percent of rainwater around the world, said activists, who said it portends global mass pollution.
Activists said GMOs are banned or partially banned in France Switzerland, Ireland, Russia, Japan, New Zealand, Costa Rico, Austria, Germany, Greece, Peru and Hungary, among others nations. Labeling products with GMOs is a controversial issue and not mandated in the U.S., but about 60 countries have labeling. Many polls show an overwhelming number of Americans would accept GMO labeling.
“Glyphosate is the most widely used pesticide in California and in the United States. More than 280 million pounds were used in U.S. agriculture, primarily due to the widespread adoption of genetically engineered crops. In 2013, 10 million pounds was used in California alone, with half of that usage being sprayed in eight of the state’s poorest counties on farm fields, lawns, gardens, school grounds, and parks, with five of those poorest counties being in the south Central Valley,” according to literature to be presented at the defendants’ trial in January.