In the Matter of the People vs Starchild the jury found Starchild NOT GUILTY on November 7th, 2007. Starchild was arrested for prostitution almost 2 years ago and the trial took place in Department 602 (Judge Keith Fudenna), Fremont Municipal Court, Fremont California.â€¨The jury selection was made last week and it consisted of 12 people and 2 alternates. The trial start on Monday the 5th of November and took place in the afternoons from 1-1:30 pm to 4:30pm. The defense council was Erika Franklin of San Francisco, who did an excellent job. The Jury found that the prosecution had not proven its case under California Penal code 647 (b). The jury only found that 2 of the 3 elements required, the agreement for the lewd act and the intent had been proven by that the 3rd, the ‘act of furtherance’ had not been proven in part because nobody had taken off their clothes, nobody had touched anyone or had sat next to anyone for that matter.
The following is the news report from the arrest in 2005
And here is the blow by blow story as it was happening to Starchild in his words:
WHEN: ——> TUESDAY, OCT. 30, 1:30 – 4:30 P.M. <------ WHERE: Fremont Municipal Court, 39439 Paseo Padre Parkway, Fremont, CA 2nd floor, Department 602 (Judge Keith Fudenna) WHY: Still waiting to hear a good answer to that one! 8( I'm meeting my attorney at noon outside her offices (345 Franklin @Hayes, in SF) to drive to Fremont. She can accommodate two more (maybe three if you squeeze); if you'd like to ride with us, give me a call at (415) 621-7932. The court is also a short distance from the Fremont BART station (Monday morning I got there in 45 minutes from the 16th/Mission BART station in SF). From the station to the court is about a 10-minute walk. Exit the parking lot in the direction you were traveling, onto Walnut Avenue, and turn right. Pass Civic Center Drive. The next big intersection is Paseo Padre Parkway -- the courthouse is the big ugly squarish building across the street on your left. Don't forget the mandatory unconstitutional search to get inside! I'm not going to tell you how to dress or act in court or any of that, I trust you to use your best judgment. Protests/fliering/etc. outside on my behalf are certainly always welcome, just know the risks (ask someone if you don't!) ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Now a bit on what happened on Day #1 of my trial (Monday Oct. 29)... I had to be there at 10:00 a.m., but nothing actually happened until 2:00 p.m., when we the final pre-trial motions were heard. Many thanks to Maxine Doogan, Lisa, Robyn Few, Ed Rippy, Kelly and Edward Simpson, Jim Korn, and my mom for coming out. Those of us who went out for lunch had a good time enjoying each other's company.As seems to be the norm, Judge Keith Fudenna ruled against us on pretty much everything of consequence. This was no reflection on my attorney Erica Franklin, who I thought did a much better job arguing the various motions than did District Attorney Suzanne Simpkins. Below is a summary of some of what we presented, and the judge's responses. I'm going to ask Erica to send me electronic copies of our motions, so I can pass along the full text of the motions without having to type them in manually. ---------------------------------------------------------- (1) Motion to Dismiss Charge Erica argued that "soliciting prostitution" (the sole charge against me) is based on an unconstitutional application of the California state prostitution statute, 647b, since the Supreme Court of the U.S. ruled in overturning state anti-sodomy laws in Lawrence v. Texas (2003) that consensual activity between adults is constitutionally protected. While that decision mentioned prostitution in passing as something that the Lawrence case did *not* involve, it did so alongside noting that the case did not involve “public conduct.”
“Most prostitution,” Erica argued, “involves public solicitation or public behavior,” while my arrest occurred in a hotel room away from public view.
The D.A. countered that “the case that the defense cites [Lawrence v. Texas] specifically excludes prostitution.”
Erica rejoined that “the Lawrence case did not refer to 647b in its various forms of public or non-public, it just referred to prostitution in general.”
The judge did little more than restate the D.A.’s dubious assertion, saying “it appears that your case *excludes* that from its ruling. Furthermore” — here he paused for a long time, as if trying to think of an additional reason to deny the motion to dismiss, and failing. Eventually he concluded with a very weak statement that seemed to have the effect of him denying the motion without saying “motion denied” in so many words: “It seems to me that the issue’s been decided, and that the motion to dismiss should be denied.”
(2) In Limine Motions
This dealt mainly with establishing mostly routine procedural rules about how the case would be handled, such as “Excluding non-testifying witnesses from the courtroom, and admonishing each witness not to confer with other witnesses regarding the subject of their testimony.”
One very important matter did come up during this discussion however, namely that there be a “hearing outside the presence of the jury concerning the admissibility of any statements sought to be introduced that are alleged to be made by the defendant,” e.g. the Craigslist ad that the police cited in my police report as the source of their contacting me be excluded.
My personal belief is that *nothing* should be kept from juries, and they should be allowed to determine for themselves what’s relevant or important and what is not. But since the system fails to tell jurors about their power to nullify laws, and judges typically instruct them, “your job is to follow the law as I tell it to you,” I didn’t mind in this specific case trying to exclude the Internet ad from being shown to them. I agreed with Erica that seeing suggestive photos and language might prejudice jurors into voting to convict even though (she argued) the ad had nothing to do with whether or not I committed the offense of soliciting prostitution, which requires that the solicitation be made to a *specific person* as otherwise it gets into problems of limiting free speech. She also noted that the ad would not show intent on the particular day in question, only predisposition, and further that there were “foundational problems” with admitting the ad into evidence, namely that the court had not determined I wrote the ad.
Once again however Judge Fudenna ruled substantially against me, denying our request for a hearing on the matter and allowing the ad to be admitted into evidence, though he did say the persecution (uh, “prosecution”) would have to “lay their foundation.”
Separately, the judge also responded to our inquiry about videotaping, stating that it would not be allowed except perhaps for media who would have to seek special permission through the clerk’s office. Similarly laptop computers,cameras and recording devices. Some of this stuff would look pretty bad in the light of day, and I’m sure these judges are well aware of it.
The schedule from here on out is that the trial will go from 1:30 to 4:30 p.m. daily. Judge Fudenna sounded almost apologetic for not going later, noting “budget cuts — we have to pay the sheriff and staff overtime.” (He also cited money as a reason we’d have to bring our own tape player to play the police recording of the arrest for the jury — “We had one, but it broke, and the county — the court — wouldn’t give us another one.” Strange, all these shortfalls and yet plenty of money for the police to mount sting operations against people in other cities advertising on the Internet and the District Attorney’s office to prosecute the cases!)
If my trial hasn’t finished by Friday November 9 we would not appear on that day as the judge has another matter scheduled, nor on Monday November 12, as it is a holiday. But the best guess seems to be that it will be over sooner than that, perhaps after six or seven half-days.
Next on the agenda is jury selection. The judge told us that tomorrow there will be a jury pool of 60 jurors in the courtroom, which has only 55 chairs, hence until sufficient jurors get dismissed members of the public may have to wait outside in the hall. (This even more than the ban on recording devices strikes me as a violation of my right to a public trial, but that seemed to be of no concern to the court.)
Tomorrow is Day #2! Would love to see whoever can make it out. Please feel free also to pass this message along and invite anyone else who opposes the bigoted criminalization of prostitution and/or this waste of the taxpayers’ resources, or is with the media and will help expose same.
Power to the People*!
((( starchild )))
*Ordinary folks, not the “people” in “People v. Starchild” which should properly be called “Government v. Starchild”!
Quote of the Day:
â€œUnjust laws exist: shall we be content to obey them, or shall we endeavorto amend them, and obey them until we have succeeded, or shall we transgress them at once? Men, generally, under such a government as this, think that they ought to wait until they have persuaded the majority to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse. Why is it not more apt to anticipate and provide for reform? Why does it not cherish its wise minority?” -Henry David Thoreau
The Following Days’ reports
After hearing the judge heard our motions on Monday, the bulk of our 3-hour sessions Tuesday, Wednesday, Thursday and Friday were filled by the jury selection process. There was a jury pool of 60, from which 12 jurors and 2 alternates were to be selected. We the defense and the district attorney each had 10 peremptory challenges for the regular jurors, and one additional preemptory challenge for each alternate. A juror can be removed in a peremptory challenge without the side doing the removal giving any reason whatsoever, and such challenges are rarely overturned. We attempted to overturn one of the D.A.’s challenges (on the grounds that her dismissal removed the only African-American member of the jury), and she tried to overturn one of ours (on the grounds that we were dismissing people who had religious beliefs); both attempts were denied by the judge. By the end of the day on Friday when a jury was finally seated, we had gone through all but about half a dozen members of the original pool of 60.
I’m intentionally trying to provide a lot of detail here, even when it isn’t that directly relevant, because I see this as an opportunity to educate people about how the system works. If you ever find yourself in court, or even if you are simply called for jury duty, I hope that you will find some of this information useful. (I urge people to get on juries whenever possible, as a means of seeing that justice is done in cases with charges involving things like consensual sex and drug use that are wrongly criminalized.) The experience has certainly been very educational for me. While I wouldn’t say that it’s worth the approximately $4000 it’s costing me [my total legal bill is around $5000, but about $1000 of that has been defrayed by contributions of friends and supporters (thank you!)], it *has* been more of a learning experience than many college classes I’ve taken! I would share even more details here, were it not for the fact that this email is already horribly long, but more importantly that you never know who may be reading a message sent out to multiple lists with self-subscribing members. It’s been said that you shouldn’t send anything in an email or post anything to a website that you don’t mind sharing with the world, and the wisdom of this advice was confirmed on Tuesday, when the D.A. provided us (as she was legally required to do) with a ream of computer printouts that she might use to impeach my character if I testify. This packet consisted of about 25 pages of stuff she or someone from her office found on the Internet, including:
-escort/massage ads of mine published on various sites
-my online profiles from various sites, including the Sex Workers Outreach Project site and MySpace
-an article published in the Bay Area Reporter about me running for office and my arrest
-a previous message I sent out via email about this case (she didn’t necessarily get this directly via email, as she possibly could have found it on the web)
-the event listing on the Squid list (LaughingSquid.com) for my legal expenses fundraiser
-etcetera (my attorney currently has the material, so it’s not in front of me to look at)
This is not to say that I’m sorry that I’ve been open and public about my political and erotic activities and identities. It is the enemies of freedom who want to shut down the flow of information, and it is freedom that suffers when free speech and knowledge are inhibited. “The more visible we are, the stronger we become.”
In fact, I hope that Assistant District Attorney Suzanne Simpkins *is* reading this message. Her father is apparently also a District Attorney, and I get the impression she may be a bit of a “daddy’s girl” who has led a sheltered life. As a result of this upbringing she may honestly believe she is doing the right thing by persecuting people for consensual acts between adults because “it’s the law.” She may even believe that these laws are good. But for her to maintain this perspective in the face of the strong evidence to the contrary to which she is undoubtedly exposed via her job, she must keep a certain distance so as to avoid seeing the innocent victims of these persecutions as human beings like herself. I believe this is why, on Tuesday, she objected to our motion that she refer to me in court as Starchild, rather than just as “the defendant.” When Erica told the judge that this was a way of dehumanizing me, Suzanne glanced over at me just as I mouthed the word to her, “Exactly!”
This brief direct communication appeared to make her very uncomfortable, and I won’t deny that felt good at the time. She is, after all, my appointed tormenter, the designated representative of the faceless bureaucratic law enforcement apparatus responsible for creating this whole unpleasantness in my life. But when I am able to think about it all from a more serene place and consider *her* as a whole human being, I don’t really take any pleasure in seeing her agitated or distressed. While I do hope she experiences enough discomfort in her life to cause her to open her eyes to the reality of the effects of punishing victimless “crimes” — the truth does have a way of making people who deny it uncomfortable! — I believe that if she can make it across this chasm of understanding she will ultimately be happier and more at peace with herself, see her own life and existence as improved, and derive good feelings from seeing how this change in her has improved the lives of many others.
In short, I wish Suzanne Simpkins well. I don’t see her as a fundamentally evil person, and I do not think she would hate me, or heed the dictates of the grinding machinery over the voices of the real people being unjustly crushed by it, if she got to know a bit more of the world and allowed herself to see me and my life as more than two-dimensional caricatures. If she really understood what I and others like myself do, our roles in providing not just sexual pleasure or the physical touch of another human being to those who often lack these precious things in their lives, but physical healing, stress relief, companionship and solace to the lonely, and a sympathetic ear to lend to those in need of a relative stranger to whom to unburden their minds and share their troubles — if she knew me personally, and was able to actually see a positive interaction between myself and a deserving client — I don’t think she would have it in her heart to continue acting in the service of oppression and to be the instrument of evil that she currently is.
But I digress. The jury selection process essentially went as follows. First the judge read the jurors a number of instructions, including asking them to “make a note” of whether they had any personal knowledge of the case, knew any of the parties to the case, etc. The clerk then read out twelve names, and those people went and sat in the first twelve seats in the jury box. At this point each of them answered, one at a time, the following series of questions printed on laminated sheets they found on their seats:
(1) What is your full name?
(2) In what community do you live? (Do *not* give your address.)
(3) How long have you lived there?
(4) What was your highest completed level of formal education?
(5) What is your occupation?
(6) What duties does that involve?
(7) By whom are you employed?
(8) How long have you been employed there?
(9) What is your marital status?
(10) Please give the occupations of any other adults living in your household.
(11) Please give the occupations of your adult children, if you have any.
(12) Do you have any health problems which might interfere with your ability to serve as a juror during this trial?
(13) Did *any* of the questions asked while you were in the audience [i.e., in the jury pool, not having yet been called to sit in the jury box] apply to you? (Please explain.)
(14) If you have ever served on a jury before:
(a) How long ago did you serve?
(b) Where did you serve?
(c) What type of case was involved?
(d) Did the jury reach a verdict? (yes or no only)
(e) Do you feel you can put aside whatever you heard in that case and decide this case on the evidence and the law presented to you in this trial?
(15) Have *you* or a *relative*, or a *close friend*, ever been:
(a) A victim of, or a witness to, a crime? (Please explain.)
(b) Arrested, accused, or charged with a crime? (Please explain.)
(16) Have you ever been in a courtroom before for any other reason?
(17) Have *you*, or a *relative*, or a *close friend*, ever worked in law enforcement or the legal profession? (Please explain.)
(18) Are you a member of any clubs, groups, or organizations?
(19) Can you think of any reason why you could not be fair and impartial to both sides in this case, or why you cannot be on this jury?
Erica and I, as well as the D.A., also had these sheets in front of us, so we could easily follow along as the jurors answered the questions. (The audience of course was not so fortunate, and for some of the later questions on the list would sometimes have to guess at what question was being answered because a juror reading the sheet and responding to each question in turn might say something like, “14 – no, 15a – no, 15b – no, 16 – yes, for a traffic violation.”)
It was frankly interesting to hear a bit about the occupations, acquaintances, and personal histories of the jurors. I kid you not, it seemed at times like 75% of the people in the jury pool were either engineers (the men), or were married to engineers (the women)! If there is ever some kind of apocalyptic event that suddenly puts society back into the Dark Ages, Fremont might not be such a bad place to be a survivor! All those engineers would probably be just the people to get the technological infrastructure running and working again if anybody could. Currently, of course, much of their talent is wasted due to all the controls and restrictions that government places on economic activity.
But I digress again. After a juror had answered the questions, the judge would typically ask follow-up questions to get more information on any positive responses to questions 12 through 19, saying for instance, “Is there anything about this experience that you think would influence you in considering this case?” or “Did your uncle who worked as a criminal attorney ever discuss his cases with you?” Then the juror would be questioned by the attorneys, first the prosecution and then the defense. After both sides’ questions, the judge would ask each attorney if there was a challenge for cause against that juror. If there was, both would approach the bench (I’ve never been sure why the single seat from which the judge looks down on a courtroom is called a “bench,” but I’m feeling too lazy to look it up) and argue why or why not a particular juror should be dismissed for cause. Then they would return to their respective tables, and the judge would either tell the juror he or she was excused, or not. Then each side would have a “turn,” to either use a peremptory challenge, or “pass.” But if both sides “passed” in one round, the jurors currently seated in the jury box would be empaneled as the jury, with no further peremptory challenges.
In addition to the 12 peremptory challenges possessed by each side, a few jurors were excused due to personal factors such as health or schedule (the only one I specifically recall right now is an Asian man who had severe back pain), and a few more were dismissed “for cause” (the other type of challenge to a juror, in which a person is deemed to be objectively unqualified to sit on the jury). Simply saying “yes” to questions like those in the preceding paragraph was not enough to get someone dismissed for cause. A few jurors were dismissed for cause after maintaining their inability to treat both sides equally, even in the face of persistent questioning from the judge and the attorneys. A few more were dismissed for cause due to being non-native English speakers and having a poor grasp of the language. Almost everyone dismissed for cause faced fairly extensive and detailed questioning about the attributes, views, or circumstances that pointed to a possible dismissal, before actually being dismissed.
Each attorney was given twenty minutes to address the first twelve jurors chosen, and then two minutes to question each subsequent replacement. This process is called “voir dire,” a Latin term which a libertarian wit (possibly Vin Suprynowicz of the Las Vegas Review-Journal) once claimed translates as “jury tampering.” It does seem to me that we are in something of an Alice-In-Wonderland legal system when simply letting jurors know that they have the right to judge not just whether a defendant broke the law, but whether the law itself is just, and whether it was fairly applied, is considered to be possible “jury tampering,” (for more info on so-called “jury nullification” see the website of the Fully Informed Jury Association — http://www.FIJA.org ) but actually kicking people off a jury for having particular political views is not.
Some of the preparation I did for court was coming up with a number of questions for prospective jurors that I thought would be helpful in discovering which jurors might be favorable or unfavorable to our point of view, some of which Erica used:
â€¢ If you found out that someone you knew was a sex worker, would you to want to see him or her punished by the law?
â€¢ Do you believe that police officers are more honest on average than other people?
â€¢ Setting aside the question of what is legal or not legal, do you believe that police officers on average are more morally upstanding people or better members of the community than prostitutes?
â€¢ Would you say that you are strongly supportive of and completely comfortable with laws that allow people to be put in jail for engaging in consensual activities with other adults?
â€¢ Would you describe yourself as politically conservative?
â€¢ Are you a member of the Republican Party? (If response is yes, follow up with â€œWhy did you join the Republican Party?â€)
â€¢ Have you ever watched a commercial film in which consenting adult actors engaged in sexual activities?
â€¢ Have you voted for any politicians who you believe were or are in favor of increasing enforcement or penalties against people for engaging in consensual activities with other adults?
â€¢ Do you attend church regularly?
â€¢ Do you think thereâ€™s anything wrong with a person being sexually promiscuous, or having numerous sexual partners?
â€¢ Do you think there is anything wrong with a person who gets married for money? (If response is â€œyes,â€ follow up with â€œWhat do you think is wrong with this?â€)
â€¢ Knowing that what happens in the jury room is completely confidential and that the police and the district attorney will not know how individual members of the jury voted, could you vote to acquit Starchild if you decided he should not be found guilty, or might you be influenced by fear that being on a jury that did not go along with what police officers or the D.A.â€™s office wanted could put you at risk for some type of official retribution?
â€¢ Are you strongly in favor of more laws restricting sexually explicit content on the Internet?
Erica also had serious reservations about some of my questions, feeling they would be disallowed by the judge. As a practicing attorney she is understandably reluctant to say things that she thinks will cause the judge to think she ought to know better and is deliberately flouting THE RULES, something that could have negative professional consequences. But given that the D.A. had already asked jurors, on the first day of voir dire whether any of them belonged to the ACLU, it seemed to me that we could fairly ask about things like church attendance and membership in the Republican Party, and indeed Erica asked several jurors these things and Suzanne did not object, perhaps out of concern that she not appear hypocritical to members of the jury. Some of the other questions were phrased differently.
One juror who said he had belonged to the ACLU and was not a current member for no other reason than failing to send in his renewal turned out to be a member of the Newark School Board. Oddly enough, the D.A. did not dismiss him, or a couple other jurors whom I felt sure that she would get rid of. On the other hand, living in the community and having access to records that we don’t, she may know things about these people that we do not. Yet another inequality built into the system. But on the whole, the jurors who appeared from their answers to be likely prospects for either conviction or acquittal were naturally the first to be dismissed by both sides, with the predictable result being the exclusion of people with well-formed opinions on social and political questions, i.e. those jurors who are more educated, intelligent, and informed.
One juror who was a little *too* intelligent and well-informed showed up on Friday, a gentleman whom I noticed right away on the list because his last name was Bong. When he was called to be in the box, and responded to question #19, he mentioned that he knew me, and we have mutual friends! This came as a complete surprise to me, because I did not recognize him, but then again I am often bad with names and faces, whereas I have a pretty memorable name and distinctive look, so often people I’ve met will remember me but not vice-versa. Someone later told me they believe he is a cannabis community activist, which makes his name doubly amusing if true! 8) Anyway, when Erica asked him her usual question about whether he believed police officers were more credible than other witnesses, for instance if an officer testified that the light was red, and another witness said it was green, would he be more likely to believe the officer because that person was in uniform, he gave a great answer along the lines of: “If it’s a matter in which an officer is relatively impartial, like observing a traffic violation, I might be more likely to believe the officer, but when they’ve gone to the work to set up a sting operation to lure people to Fremont to charge them with prostitution, I think they’re more likely to lie.” This got a good laugh, but of course Bong ended up being dismissed for cause with less ado than just about anybody else. It’s too bad, because had he not expressed the conflict that he did and been seated, he could have been just the juror I need.
During the days in which jury selection was proceeding, the judge and the attorneys would also frequently discuss other matters at times when the jurors were not in the room. Members of the public were allowed to stay, however — the Constitutional right to a public trial has not yet been completely trashed, although we have been told that cameras and recording devices will not be allowed. I’m sure the D.A. was less comfortable giving her arguments in front of my supporters sitting in the audience, and it also seems to me that Judge Fudenna has been slightly more considerate and sympathetic to our side now that jury trial proceedings have gotten under way and I’m seated behind the defense table than he was during previous court appearances I had to make during the nearly two years this case has been pending. I believe the presence of a partisan audience can indeed make a difference!
The D.A. was also clearly rattled by the protesters outside the courthouse. Starting Tuesday, a number of sex worker advocates engaged in holding up signs for prostitution decriminalization, pointing out the waste of resources involved in persecuting people for such “crimes,” and so on, and passing out jury rights literature. At least one of the sheriffs deputies at the courthouse did threaten the possibility of arrests, but then kind of backed off. Being in court I was not involved in or a witness to any of that, but heard that Omar Figueroa, a medical marijuana attorney present coincidentally present for another case may have helped convince the authorities that arresting protesters would look more like “free speech tampering” than “jury tampering.” So the protesters have not yet had their rights violated that I am aware of.
I understand that Carol Leigh is coordinating this and perhaps planning some street theater, so anyone wishing to take part, perhaps needing a ride, etc., should contact her at (415) 751-1659 or CarolLeigh@bayswan.org . As the defendant, it seems best if I’m not directly involved with that. There will also be a press conference, tentatively scheduled for noon on Thursday.
Today (Monday) we will be hearing opening arguments from the two attorneys, followed by the prosecution’s witnesses. There are four of these, all Fremont police officers. Apparently Heather Fox, who as the officer who initially called me posing as a client and did most of the talking when we actually met at the hotel room will be their main witness, was scheduled to be on vacation today and is having to miss her day of vacation in order to testify against me. Excuse me while I cry some crocodile tears for her. I also have a potential witness, a client of mine. Whether or not he testifies, and whether or not I take the stand in my own defense, we will decide based upon how the case appears to be going. The prosecution witnesses come first, and both sides get to ask them questions, before Hal or I would testify, so that could conceivably be Wednesday, Thursday, or next Tuesday (there is no court on Friday due to the judge having something else scheduled, and Monday is a holiday).
Many thanks again to everyone who came out to support me and the cause of liberty and justice on Tuesday, Wednesday, Thursday or Friday (many on multiple days!): Maxine Doogan, Peter Keyes, Vanessa, Lisa, Tara Sawyer, Carol Leigh, Robyn Few, Veronica Monet, Robert and Trudy, Brian Holtz, Aimee Patten, Amanda, Omar Figueroa (who just happened to be there for another case at an opportune time), my sister Aura, her boyfriend Laurent, and last but not least my mom Barbara. Many apologies to anyone I may be forgetting. Hopefully some more folks can make it out this week! Not only do I think that having more supporters there will help me with the judge and jury, but I think it will make it more likely to attract local press coverage, which would be nice. The more exposure and scrutiny this Fremont Police Department action gets, the more I think it will lead the public there to question what the city government is doing with their money, hopefully leading to more sensible priorities and fewer sex workers being victimized by Fremont cops and prosecutors in the future. Ciao for now…
Power to the People*!
((( starchild )))
As some of you may have heard, the jury in my prostitution case came back with a unanimous verdict yesterday, after a little less than three hours of deliberation: Not Guilty! Needless to say, I and all the folks who were there to support me were very happy. Once we had a jury selected, a process that took all of last week, things went pretty rapidly. The actual trial started Monday with the opening arguments, followed by the testimony of Officer Heather Fox, the Fremont Police vice cop who lied and pretended to be a client in order to lure me into this entrapment.
I do feel she was honest in her testimony about the events, though I have serious doubts about her testimony when we recalled her outside the presence of the jury. District Attorney Suzanne Simpkins was required by law to turn over to us any documents the police had relating to this arrest or to undercover sting operations in general, and she told us there were no such documents. On the witness stand however, Officer Fox mentioned being given about a week prior to the arrest a list of slang terms used on the Internet, for help in deciphering ads such as mine. Even judge Keith Fudenna, who was no friend to me or to justice during most of this case, appeared to agree that this would have been covered under the discovery request. But when we were able to query Officer Fox about it, she (1) said that she no longer had a copy of the document, (2) did not know whether any other officers were given copies of the document, (3) did not know whether the Fremont Police Department still had the document, and (4) reaffirmed the D.A.’s previous contention that the FPD does not have any written policies, procedures or documents relating to undercover sting operations. I think this was a pack of lies, especially #4 which is just not credible, but unfortunately there appears to be little we can do to prove it, since the judge did not press them on it.
The D.A. surprised us by calling no further witnesses after Officer Fox, so the following morning I testified in my own defense, followed by a client of mine who was good enough to volunteer to come forward and testify as a character witness. After both attorneys got to ask all their questions of the various witnesses, they gave their closing arguments. Erica’s closing argument was terrific, one of the strongest parts of her whole performance on this case, for which I already give her high marks. I would strongly recommend her as a criminal defense attorney to anyone who might be in need of one. While it got off to a rocky start when the judge prohibited her from talking about the Fremont police chief’s memo to the community letting people know the department would no longer investigate burglar alarms unless there was a verified problem, and was cutting back on auto theft, robbery, and street crime investigations, all due to an alleged lack of resources — “alleged” because they seemed to have no lack of resources for entrapping prostitutes on the Internet for intending to engage in sexual activities among consenting adults — it was all uphill from there. Erica demolished the contention that the cop saying “OK, that works” in response to hearing my rates for time which could include “being fucked” meant that we had an actual agreement, noting that if you go to Best Buy and a salesman is telling you about various TVs and how much they cost, and you say “OK, that works” but nothing subsequently happens such as you taking a TV to the register, it does not mean that you have committed to purchasing one. She also recounted a recent phone conversation in which someone from the D.A.’s office in San Francisco had called her and let her know that some motions would be filed, and she said “OK.” Then when she was in court, the D.A. tried to say Erica had not objected to these motions, but as Erica explained, she was simply acknowledging the D.A.’s statement, not agreeing to what was being stated. I suspect that these personal, common-sense examples had a powerful effect on the jury.
The juror who had been the foreman (Charlie Messinger, who happens to be an elected member of the Newark School Board) and stayed around to talk with a few of us after the trial concluded yesterday afternoon, confirmed this, saying that the jurors felt my attorney Erica Franklin was very persuasive in explaining how no actual crime was committed, and how the D.A. had not proved the three elements she needed to prove for them to convict (intent, an agreement, and an act in furtherance).
More soberingly however, he also added words to the effect of “there might have been a crime if they’d waited another 10 minutes before making the arrest.” He also told us the jury felt I was likable and honest in my testimony. He said that when I mentioned that I would have had sex with the two female vice cops for free, he said “us four guys in the back were all going ‘Me too!'” The conversation was a pointed indication that despite the favorable verdict, I could have easily been convicted if the circumstances of the case had been only very slightly different in any number of different specifics. I do not think the jurors “got it” as far as understanding that prostitution is not a real crime, or that this arrest was a travesty and an injustice from the get-go. Messinger said he had never heard of FIJA (the Fully Informed Jury Association), and appeared to be unaware of jury nullification (I talked about it a little bit, and wrote down FIJA’s website for him — http://www.FIJA.org). Clearly more public education in these matters is desperately needed.
Meanwhile however, those of us who believe in freedom can savor this hard-earned VICTORY! It is the best outcome I could have realistically hoped for, and justice was at least partially served — the police and D.A.’s office will not face any penalties for violating my rights, and I’m still out a few thousand dollars and many hours of my life plus the small amount of property I believe the cops stole from me when I was arrested, but at least I have the satisfaction of knowing that the Fremont authorities put in a substantial amount of time, money and resources into this, and after nearly two years came away totally empty-handed except for the taxpayer money that they are all sucking up as a normal part of their jobs. I want to get a copy of the transcript of this trial and put it on the Internet for the benefit of sex workers and others who may have to fight such injustices in the future and could be helped by knowing more details, but I have learned that obtaining it will mean paying the court reporter $2.50 per page, or a total of several hundred dollars more, despite the fact that as the official record of a public trial it should be public information. Just one more way the system is designed to rip people off! If you have not already supported me with a donation or your presence or both, a small contribution toward covering this last expense would be most welcome.
Likewise I will also be publishing the various motions we filed in this case, as well as the details of my police report, the transcript of the undercover tape the cops made of the arrest, and whatever other info I can get out there (minus only a few details of personal information such as my driver’s license number and so on that I will redact). If anyone has any specific questions or comments about this case, please feel free to email me or call me while it’s relatively fresh in my memory and I will be happy to give you more details, at least until I get tired of recounting them.
Additional resource is Fully Informed Jury Association