High Drama as Occupy Asheville Goes to Court

Asheville, North Carolina

Activists occupied two Buncombe County, NC courtrooms for much of the day April 26, 2012.

The occupiers, ranging in age from mid-20s to early-70s, were ordered to court to face various charges including trespass and impeding traffic resulting from asserting first amendment rights to peaceably assemble in various nonviolent direct actions throughout the city in October, November and December of 2011. Only one "not guilty" verdict was returned for the six defendants whose cases were heard. Continuance until June 28 was granted for about 21 other cases. Pro bono attorney Ben Scales, who has provided countless hours of assistance to the First Amendment defenders, asked for the continuance because many of the arresting officers were not present to testify.  They are "essential witnesses to our case," he said.

The first person to go before District Court Judge Patricia K. Young in the basement courtroom was Lyudmila Dhiraja, a native of the Ukraine. She had been cited for impeding traffic around Vance monument on October 15, 2011 during a rally at the monument, a location that has been acknowledged by the city of Asheville as a "traditional forum for free speech," after over a decade of weekly vigils and protests against violence and war by Women in Black and Veterans for Peace .

Dhiraja pled guilty and was sentenced to 12 months probation and 20 days suspended sentence. Her husband, Joseph Bacanskas, also known as Virato, and the first of Occupy Asheville activists to be charged, was found guilty April 17 of willfully impeding traffic at Vance Monument and ordered to pay $190.

Attorney Ben scales also assisted Matthew Burd, who opted to serve as his own attorney. Burd was sent upstairs to courtroom 3 where he was tried before District Court Judge Julie M. Keple.  Numerous supporters and co-defendants whose trials had been postponed followed him to the 2^nd floor courtroom. Assistant District Attorney Milton Fletcher prosecuted Burd on charges of trespass for a November 2 march and rally at Vance monument.  Burd maintained he was asserting his First Amendment Rights to peaceably assemble.  He asked Asheville Police Sgt. Jonathan Brown if he had taken an oath to uphold the Constitution, but when he asked Brown to recite the oath, the ten year police veteran was unable to do so. Sgt. Brown has been present at many Occupy Asheville events, and told the court in a later trial that afternoon that "we became familiar with people inside the movement. I had a lot of dialog. ..we were prepared for multiple scenarios."

Several National Lawyers Guild Legal Observers, including this writer were present in the court room throughout the day. Asheville has a dozen Legal Observers, trained by retired attorney Curry First, who is also the president of the Western North Carolina chapter of the ACLU.  I had barely settled in to the 2^nd floor courtroom to observe when defendant Matthew Burd called me forward as a witness.  This is one of the roles we Legal Observers agree to as part of our training through the National Lawyers Guild .  With my notes in hand from the Nov. 2 march from Lexington Ave. underpass and the rally at Vance monument, I approached the stand.

To the best of my recollection, and aided with my Legal Observer notes, I was able to answer questions regarding the arrests and interactions with the police. Unlike the encounters in many cities where the occupy movement is active, all the interactions I have observed between Asheville police and occupy activists have been civil and polite, as each play out the roles they feel a duty to assert.

Under cross examination, I had to correct the Assistant District Attorney, who kept referring to what he called "your organization."  Occupy is a "movement" I asserted, not an organization.  I was serving as a trained Legal Observer, not as a participant. The prosecuting attorney's style was aggressive and badgering, often interrupting, and as one observer later commented, "He seems more interested in getting a conviction than getting at the truth of what happened."

As is typical in these cases where individuals may violate city ordinances to assert a higher law and bring attention to an injustice, the prosecution is only interested in the bare bones: "Did you or did you not remain after being warned to leave?" Burd was found guilty and sentenced to time served.

Back in the basement courtroom, Warren Wilson College professor Steve Norris faced Judge Young. He plead guilty for a December 2 action in front of Bank of America, coordinated by the Rainforest Action Network with large participation from the Occupy Asheville movement.  Norris and Amber Williams chained themselves to a replica of a windmill to dramatically demonstrate the egregious crimes aided and abetted by $3.9 billion in loans from Bank of America to fund mountain top removal coal mining.  Norris was sentenced to time served for his conscientious action which Attorney Scales characterized as being undertaken as a "necessity" in the spirit of the civil disobedience actions of Martin Luther King, Jr. and Mohandas Gandhi to bring attention to an injustice.

Amber Williams, a student at UNC-Asheville, opted to defend herself, pleading not guilty at her trial that afternoon before Judge Young. Her case was joined with that of Caleb Shaw and Thomas Beckett. Both men had been charged with trespass for being on the grassy area in front of the Bank of America. 

"They have an intelligence unit" he testified, "The Bank of America Director of Security out of Charlotte"certain intelligence information passed to and from the Asheville Police Department."

In a dramatic scene, the police video of the Bank of America action was shown.  As Judge Young, the prosecutor, defense attorney Scales, defendant Williams, Sgt. Brown, the court bailiff and another court official clustered together by the judge's dais to view the laptop screen, the chants and statements of that day rang through the courtroom: "No money for coal. No more money for coal-- and "Our children get sicker, their profits get bigger."  It was an unusual scene in that basement courtroom, that is more often the site of an assembly line justice of guilty pleas and fines collected as one low income person after another is sentenced for misdemeanor offenses.

Sgt. Brown, during cross-examination, could not recall if his order to move from the grass in front of the Bank of America came before or after defendant Thomas Beckett arrived on the scene, Beckett was found not guilty because, as the judge declared, there was "reasonable doubt" he had heard an order to move. Beckett is a local attorney who had just happened upon the scene and stepped off the sidewalk to take photos.  Caleb Shaw , an activist with the occupy movement, and facing other occupy related charges, was found guilty.  Sgt. Brown had characterized Shaw as stepping back on to the grass in an "act of defiance."  Both Williams and Shaw were found guilty and sentenced to time served.

After the lunch break, we returned to the second floor courtroom for the trial of citizen journalist Lisa Landis. We shared the tiny courtroom elevator with Buncombe County District Attorney Ron Moore, under scrutiny because of missing guns, money and drugs from the county evidence room.  Also on the elevator were Assistant District Attorney Fletcher and defendants, Norris, Landis and Becket, and Defense Attorney Scales and Legal Observer Rawls and myself. Quite a mix of players in the courtroom dramas unfolding that day.

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