Sunday, September 07, 2008

On The Flannery Five

Warning:  Long post ahead.  Sorry.  This one's been building for a bit.  And I'm bending my rule on not blogging regarding courthouse news.

I'm about to rant about Streetvibes editor Greg Flannery and the four others convicted of trespassing in Steve Chabot's office a couple years ago.  (Here's the Enquirer coverage.  I refer to them as "five" because two were juveniles, and I'm not sure how their cases were resolved.)  But I've been taught that if you're going to criticize someone, you should begin with some praise.  So let's do that first (I've been meaning to make the point anyhow.)

The praise:  For a long time, I've bought Streetvibes each month.  I've always thought that the one-dollar contribution was a terrific way to help the homeless.  But the last few months, I've been buying the newspaper for another reason:  to read it.  The writing and reporting has been excellent--often, better than its weekly alternative counterpart, Citybeat.  So if you've not bought Streetvibes in a while, pull out a buck the next time you see a vendor.  And then read.

Now, for the meat of the post.

Back in 2006, Greg Flannery and four others were arrested for trespassing in the office of Congressman Steve Chabot.  Essentially, they staged a sit-in to protest the war in Iraq.  At the time, Flannery acknowledged the group was "repeatedly invited to leave" and stayed two hours past closing.  As is their right, four of the five, including Flannery, demanded a jury trial.  They were convicted.  They appealed.  They lost.  They filed a petition for review in the Ohio Supreme Court.  It was denied.  And they were sentenced to perform 20 hours of community service.  One of the group's members, Barbara Wolf, apparently told the court she wouldn't complete her sentence, and was sentenced to 10 days in jail instead.

I oppose the Iraq war.  In my younger, badder days, I could see myself being part of their civil disobedience.  In fact, one of my fondest memories of my teenage years is marching on Washington, DC, with my dad in 1991 to protest the Gulf War.  I also proudly addressed, on behalf of a Pittsburgh coalition of high school students, a peace protest.  So I applaud the sit-in and the Flannery Five's intentions.

So what's my problem?

The current issue of Streetvibes has two pieces that stand in ironic juxtaposition.  The first, a front-page story written by Flannery called "All The Justice You Can Afford," recounts the findings of the NLADA study of the Hamilton County Public Defender.  The second, on page two, is Flannery's page-long story of his arrest.

One of the criticisms of the Public Defender that Flannery echoes is an allegation that incarcerated, indigent defendants spend more time than necessary in jail because public defenders don't have the time to go visit them in jail before their court dates.  We'll leave aside, for a moment, whether that's actually true.

Flannery's piece on his trespassing conviction brags that his trial lasted six days.  Six days.  For a fourth degree misdemeanor.  In municipal court.

I wonder if anyone was forced to spend extra time in jail because of the trial.

I didn't attend the trial.  But from Flannery's account, it doesn't appear that the group's lawyers argued that they were factually innocent of a trespass.  Instead, it seems like they were hopeful that at least one of the eight jurors would decide to nullify the law.  He writes that "we tried to convince the jury to convict the war instead of us."  He brags of the "inconvenience" caused by the "long legal struggle."  (I suspect that the defense attorneys never openly argued for nullification; they wouldn't be permitted to.  My best guess is that they couched their efforts in terms of a "necessity" defense, arguing that the sit-in was necessary to prevent the imminent deaths of people in Iraq.)

But who was inconvenienced?  The judge and his or her staff?  Nope, they're there every day, whether there's a jury trial or not.  The prosecutor?  Nope, same thing.  But how about the other litigants who had appearances scheduled during the six-day trial?  Yep, probably.  You see, once a jury trial begins, it takes precedence over everything else until it's finished.  Judges will get through the rest of their docket as quickly as possible, usually handling only guilty and no-contest pleas; everything else will typically be continued, possibly weeks into the future.

Most people know that defendants have a right to a speedy trial.  For a misdemeanor, someone who's held in jail has to be brought to trial within thirty days of his or her arrest.  But there are things that can stop, or "toll," the speedy trial clock.  One of these is the unavailability of the court.  So guess what?  If you were poor, locked up, your case was assigned to the same judge as was Flannery's, and you had a trial scheduled during the Flannery trial, your case was continued.  Your speedy trial time tolled until the next court appearance.  And you stayed in jail.

Flannery and his co-defendants are fortunate.  They could afford to take six days off of work for a trial.  But what about defendants (and witnesses and victims) who were scheduled the second, third, fourth, fifth, or sixth day of the Flannery trial and who had to come back another time who work low-paying, hourly jobs?

I guess the issue really is one of how much justice a person can afford.

The Hamilton County Municipal Court is charged with determining whether people are proven guilty of misdemeanor offenses, and then settling on a sentence for those who are.  Whether it's good at that job is a determination for others to make (most days, I'm too busy hacking at trees to see the forest).  It is not, however, well-suited to determining whether a particular military intervention is justified.

The judges and prosecutors (and we defense attorneys) are at our best when we have the time to discuss, whether on the record, in chambers, or at side-bar, the appropriate resolutions to cases.  When a judge is trying to get a jury back in the box for a trial in progress, that time doesn't always exist.  Reading Flannery's article, I was thinking about some of the people I've represented in municipal court the last few months:

  • A woman in an abusive relationship, whose romantic partner figured out things might go better for him when she calls the police if he says that she assaulted him, too.  (We got the right result:  he was convicted, the case against her was dismissed.)
  • A man with no criminal record but a history of mental illness who, unable to afford his psych meds, committed a non-violent though serious offense due to his mental illness.
  • A young woman, initially convicted of a drug-related offense, who relapsed while on probation.

In each of these cases, the judges made (I think) the right call and declined to send my client to jail.  But I wonder:  if any of the cases had been called on a day when a judge was trying to get to a jury trial and was speeding through the docket, would s/he have been able to give the case enough thought to reach the same result?  I'd like to think so, but I just don't know.  It's a lot easier--and quicker--to impose a jail sentence than it is to fashion an appropriate remedy involving treatment and social services.

Greg Flannery and his co-defendants, aided and abetted by some of the best legal minds in Ohio, staged a six-day sit-in in municipal court.  Should we have launched a war in Iraq?  Probably  not.  Is a municipal courtroom the appropriate forum to litigate that issue?  Certainly not.  And doing so likely hurt only the people Flannery is usually busy standing up for.

Greg Flannery got all the justice he could afford.  How much did it cost those in the community who can't afford as much justice?

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