Polk County prosecutors are trying stronger tactics in an Occupy Des Moines trespassing trial scheduled to begin Monday, arguing that jurors should be barred from considering “free speech rights.”
Earlier this month, former state Rep. Ed Fallon was acquitted in the first of several trespassing trials when a jury decided that the First Amendment outranks a state Capitol curfew.
Court papers filed in preparation for Monday’s joint misdemeanor trespassing trial of Hugh Espey and David Goodner argue that the judge should not cede constitutional decisions to the jury.
Fallon was the first Occupy Des Moines protester to stand trial following 32 arrests at the Iowa Capitol. Monday’s trial is the first since that decision.
Jurors in the Fallon case reached their decision after following legal instructions from District Associate Judge Romonda Belcher that defined trespassing as remaining on property without justification. Jurors were told that, “ ‘Without justification’ allows and protects entry on public property for the purpose of reasonably exercising one’s right to free speech, assembly or to petition the government for a redress of grievances.”
But the latest court paperwork — signed by Jeff Noble, the bureau chief who oversees misdemeanor prosecutors in the Polk County attorney’s office, and a prosecution intern — argues that the 1976 court decisions Fallon’s lawyer cited as basis for the jury instruction are no longer the controlling law. Other Iowa cases have “consistently held that free speech is no defense under Iowa’s trespass statute,” documents argue. And even if it is, “there are practical problems inherent in allowing a jury of laypeople to determine the legal reasonableness of constitutional justification.”
The documents cite a Des Moines Register story that quoted a juror in the Fallon trial explaining the verdict by saying that “the Constitution supersedes all state laws and regulations.”
Because jurors believe such things, “using instructions which characterize the defendant’s actions as an exercise of constitutional rights effectively wraps the defendant in the flag and dictates the outcome of the trial,” according to Noble’s motion. “Other jurors in future cases may not use the same problematic logic as the jurors quoted above. But the mere potential for the jury nullification discussed above is the exact reason why it is the court’s role — not the jury’s — to determine questions of constitutional law.”
The paperwork asks Belcher to bar any “evidence or argument regarding ‘free speech rights’ ” and whether those rights constitute justification.
Lawyers for the Occupy protesters counter that talk of public protest is essential, given the nature of the offense and that Iowa set up its trespassing law to allow a little leeway.
A 34-page defense motion, signed by Drake University law professor Sally Frank and two students, includes six pages that cite trespass cases from all 50 states and Guam. Iowa’s is the only law that includes the words “without justification,” the lawyers wrote.
“Since the Legislature purposely chose to include those words in the definition, they should be given full force and effect,” court papers contend. “The best way to do so would be to view ‘without justification’ as an element of the offense and allow evidence on justification to be admitted to the jury.”
Just where do our first amendment rights end? There are many lines drawn where the protection under the first amendment do not go. Is this one of them?
Clearly I have no love for the occupiers. They're a bunch of contentious unruly rabble with no respect for anything. Their disregard and respect for others and the law is obvious, but when the first amendment comes to play things change.
This country along with the founding and purpose of this forum is based on just those rights offered to us under it. As protesters, do they have the right to break other laws to attempt to make their point? Should trespassing be considered just what it is, an unlawful act committed on the person, property, or rights of another; usually as a wrongful entry on real property or should this be considered an entry on public property for the purpose of reasonably exercising one’s right to free speech, assembly or to petition the government for a redress of grievances?”
Clearly, the capitol grounds have hours during each day that are lawful to protest. Does capitol security and the legislature have the right to set times when the public may occupy the grounds? Are those times reasonable? Is it reasonable to have hours in the public areas?
The bureau chief for misdemeanors in Polk County says that the courts have consistently held that free speech is no defense against Iowa trespassing statutes.
The right to free speech is perhaps our most cherished right, but it's not absolute.
-------------- Actually my wife is especially happy when my google check arrives each month. Thanks to douchbags like you, I get paid just for getting you worked up. -Liberal
MADDOG: Clearly I have no love for the occupiers. They're a bunch of contentious unruly rabble with no respect for anything. Their disregard and respect for others and the law is obvious ----- Me: Really? I've been far more respectful to everyone here than you have. I've never disrespected anyone's property. Contentious and unruly? I can't believe you are STILL judging a whole group by the stupid actions of a few. And yes, the loss of reasonably exercising one’s right to free speech, assembly or to petition the government for a redress of grievances is one of the problems facing us that we the occupiers have been trying to bring attention to.
Was it Bush that started "Free Speech Zones" ? People are allowed to redress government and protest miles away from the people we have problems with and miles away from the press? The press is now being told what stories they can cover and which they can not? Does that sound like America? The press is now being arrested and threatened for trying to cover stories the police and government don't want them covering? What country is this turning into?
-------------- And the light shines in the darkness, and the darkness did not comprehend it.
Polk County prosecutors are trying stronger tactics in an Occupy Des Moines trespassing trial scheduled to begin Monday, arguing that jurors should be barred from considering “free speech rights.”
Earlier this month, former state Rep. Ed Fallon was acquitted in the first of several trespassing trials when a jury decided that the First Amendment outranks a state Capitol curfew.
Court papers filed in preparation for Monday’s joint misdemeanor trespassing trial of Hugh Espey and David Goodner argue that the judge should not cede constitutional decisions to the jury.
Fallon was the first Occupy Des Moines protester to stand trial following 32 arrests at the Iowa Capitol. Monday’s trial is the first since that decision.
Jurors in the Fallon case reached their decision after following legal instructions from District Associate Judge Romonda Belcher that defined trespassing as remaining on property without justification. Jurors were told that, “ ‘Without justification’ allows and protects entry on public property for the purpose of reasonably exercising one’s right to free speech, assembly or to petition the government for a redress of grievances.”
But the latest court paperwork — signed by Jeff Noble, the bureau chief who oversees misdemeanor prosecutors in the Polk County attorney’s office, and a prosecution intern — argues that the 1976 court decisions Fallon’s lawyer cited as basis for the jury instruction are no longer the controlling law. Other Iowa cases have “consistently held that free speech is no defense under Iowa’s trespass statute,” documents argue. And even if it is, “there are practical problems inherent in allowing a jury of laypeople to determine the legal reasonableness of constitutional justification.”
The documents cite a Des Moines Register story that quoted a juror in the Fallon trial explaining the verdict by saying that “the Constitution supersedes all state laws and regulations.”
Because jurors believe such things, “using instructions which characterize the defendant’s actions as an exercise of constitutional rights effectively wraps the defendant in the flag and dictates the outcome of the trial,” according to Noble’s motion. “Other jurors in future cases may not use the same problematic logic as the jurors quoted above. But the mere potential for the jury nullification discussed above is the exact reason why it is the court’s role — not the jury’s — to determine questions of constitutional law.”
The paperwork asks Belcher to bar any “evidence or argument regarding ‘free speech rights’ ” and whether those rights constitute justification.
Lawyers for the Occupy protesters counter that talk of public protest is essential, given the nature of the offense and that Iowa set up its trespassing law to allow a little leeway.
A 34-page defense motion, signed by Drake University law professor Sally Frank and two students, includes six pages that cite trespass cases from all 50 states and Guam. Iowa’s is the only law that includes the words “without justification,” the lawyers wrote.
“Since the Legislature purposely chose to include those words in the definition, they should be given full force and effect,” court papers contend. “The best way to do so would be to view ‘without justification’ as an element of the offense and allow evidence on justification to be admitted to the jury.”
Just where do our first amendment rights end? There are many lines drawn where the protection under the first amendment do not go. Is this one of them?
Clearly I have no love for the occupiers. They're a bunch of contentious unruly rabble with no respect for anything. Their disregard and respect for others and the law is obvious, but when the first amendment comes to play things change.
This country along with the founding and purpose of this forum is based on just those rights offered to us under it. As protesters, do they have the right to break other laws to attempt to make their point? Should trespassing be considered just what it is, an unlawful act committed on the person, property, or rights of another; usually as a wrongful entry on real property or should this be considered an entry on public property for the purpose of reasonably exercising one’s right to free speech, assembly or to petition the government for a redress of grievances?”
Clearly, the capitol grounds have hours during each day that are lawful to protest. Does capitol security and the legislature have the right to set times when the public may occupy the grounds? Are those times reasonable? Is it reasonable to have hours in the public areas?
The bureau chief for misdemeanors in Polk County says that the courts have consistently held that free speech is no defense against Iowa trespassing statutes.
The right to free speech is perhaps our most cherished right, but it's not absolute.
Freedom of speech is paramount in a free society. But when that public redress becomes violent or destructive in nature, those actions are not protected. The same with trespassing on private property is not protected. I also believe speech zones are also UNCONSTITUTIONAL.
I also agree with the ruling. Free speech does not have a curfew, as this would be an infringement upon the 1st Amendment, and since the capitol is funded by taxpayers, they must have the ability to protest PEACEFULLY.
Free speech is absolute it is the actions that are not absolute.
-------------- *SIC SEMPER TYRANNIS / MOLON LABE / Se Defendendo memoria of cado frater ,Semper fidelis *The object of war is NOT to DIE for YOUR Country, but to make the OTHER BASTARD DIE for HIS...Patton My Constitutional Rights trump your dead.
Hey MADDOG, did you see what happened to the contentious unruly UC Davis student Occupiers?
Are these the disrespectful rabble you mean? Did you know Harvard also has students who occupy? So does Yale.
Were the sit-in kids blocking the entrance not asked to leave and they chose not to comply?! Disrespectful rabble?...absolutely. The occupiers love to stage incidences such as this to get the media pity-party they are begging for...it brings the attention they want to their cause?! So Yale and Harvard have wanna-bes...its college...most everyone there is trying to fit in somewhere. And many come from small town USA and the occupiers are their first real experience with testing the boundaries. Thats what ya do in college! Then ya grow up and live in the real world..and most outgrow the need for rebellion.
-------------- "Things turn out best for those who make the best of the way things turned out." Jack Buck
They were not blocking any entrance. So, you believe they should have been blasted in their faces with pepper spray for linking arms and sitting on the ground? You watched the video and feel those young people deserved that? Here's another angle, maybe seeing the policeman walk between two of the students so he could get in front of them before he sprayed them will change your mind. I seriously hope you are not saying they deserved that for exercising their first amendment right. Wow, please tell me you are not saying that. Perhaps you did not watch the video at all.
As for the rest of your comment. Wow. Check the meds.
-------------- And the light shines in the darkness, and the darkness did not comprehend it.
They were not blocking any entrance. So, you believe they should have been blasted in their faces with pepper spray for linking arms and sitting on the ground? You watched the video and feel those young people deserved that? Here's another angle, maybe seeing the policeman walk between two of the students so he could get in front of them before he sprayed them will change your mind. I seriously hope you are not saying they deserved that for exercising their first amendment right. Wow, please tell me you are not saying that. Perhaps you did not watch the video at all.
As for the rest of your comment. Wow. Check the meds.
Check the meds?...hit a little too close to home for ya there Ros! Cause no one is taking this occupy seriously? Ya never answered the question...were they not asked to leave?? Did they not just completely disrespect authority because they refused when asked? because they wanted the media attention? cause its the only way to keep this occupy thing alive? Who does this Ros? College kids with too much time and too much of mommy and daddys money! Do ya ever see professionals camping out and about like these kids?
-------------- "Things turn out best for those who make the best of the way things turned out." Jack Buck
Since the OccupyMN folks have started protesting I think several interesting questions have come up (at least as far as I am concerned).
I agree, having a curfew for protesting or designated "free speech zones" doesn't seem right. What happens though when 100 protestors, marching in the streets of congested downtown area snarl traffic for 1,000's of commuters trying to go about their lives? What happens when protestors enter a residential neighborhood and protest at all hours of the night, don't the residents of that neighborhood also have rights? The notion that all of us get 100% access to all taxpayer funded property is not true, and is a crazy concept. I can't simply walts into the White House whenever I want, nor the Pentagon, nor the restricted areas of the Albert Lea Police Department. Also, if it's true we should be allowed to camp on any and all taxpayer funded property free of charge, for as long as we want, then why are all those suckers paying for camp sites at national and state parks, didn't they get the memo that all taxpayer funded property doubles as free camp sites?
I don't know the right answers to these questions, but I think the recent protests have pushed us the point of having to answer some of these questions.
As for the article, aren't they saying the judge should make a ruling on constitutional versus unconstitutional, and in this case if the judge ruled unconstitutional that would be the end of the trial? I would prefer that model over letting juries decide what is constitutional versus unconstitutional.
The occupiers love to stage incidences such as this to get the media pity-party they are begging for...it brings the attention they want to their cause?!
What other reason is there to protest?
-------------- The people are masters of both Congress and courts, not to overthrow the Constitution, but to overthrow the men who pervert it!
Santorini: Check the meds?...hit a little too close to home for ya there Ros! Cause no one is taking this occupy seriously? --- Me: Um...no. Besides, Occupy is still going strong. No one is taking occupy seriously? Many people are. Hopefully soon everyone will be. ------------- Santorini: Ya never answered the question...were they not asked to leave?? Did they not just completely disrespect authority because they refused when asked? ---- Me: So whenever the "powers that be" don't like what we the people have to say and tell us to leave and shut up, we should? Very interesting. Another thing to take into account, the school chancellor had asked for police to remove tents, NOT STUDENTS. The chancellor, and pretty much everyone (except you) were horrified at what was done to the students. The chancellor, and pretty much everyone (except you) believes the students have the right to protest and air grievances. --- Santorini: Do ya ever see professionals camping out and about like these kids? --- Me: Yep. Even that day, there were some professors from the school that had joined in the protests with the students. ------------------------------------- blahblahblah, not all of the protestors do those things you mentioned. Sadly some do. I will say one thing though, the day thousands were marching down the streets in NY (and yes, blocking traffic while marching. Kind of hard for thousands to march and not impede traffic) I was watching the livestream, and I must say, I was filled with hope, and my eyes with tears. Every single vehicle was honking, waving, giving thumbs up, and encouraging the marchers. Even cab drivers were holding their hands out the windows to shake hands with them and tell them thank you. And the cab drivers were having their work interrupted! But they were grateful, because they know things have gotten out of control, and our government is not even close to being "for the people, by the people" anymore. And, no offense, but, it is kind of sad that your biggest response: "I think several interesting questions have come up (at least as far as I am concerned)." was followed up by the behavior of some of the protestors, and ridiculing them and what they are doing. Perhaps instead, you could try to realize what their message is, and how what has been happening in this country and still is happening in this country, with how corrupt our government is, is far more offensive than this group of people who want things fixed.
-------------- And the light shines in the darkness, and the darkness did not comprehend it.
