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San Diego City Attorney Jan Goldsmith.
The Equality Nine activists who were arrested at San Diego City Hall in 2010 for attempting to secure marriage licenses are being held hostage by a stubborn City Attorney, who has charged them with dubious offenses and who has repeatedly refused to dismiss the charges. In the latest chapter of this long-running story, which has important implications for civil liberties and the right to protest, the judge dismissed the entire jury pool for the trial when it became clear that the prosecution was impermissibly purging gay jurors.
The court case arose on August 19, 2010, when more than 20 couples showed up at City Hall to request marriage licenses. Judge Vaughan Walker had declared Proposition 8, which banned same-sex marriage, unconstitutional earlier in the month, and the couples made appointments to receive licenses to marry. However, on August 16, the Ninth Circuit stayed Judge Walker's decision. Hence, the San Diego Clerk of Court refused the same-sex couples marriage licenses. Upon being refused, one of the couples began a peaceful sit-in, which was joined in by others. No one was prevented from doing business at City Hall as the protesters chanted slogans, sang songs, and engaged the Clerk in conversation.
Soon more than 50 policemen in riot-gear showed up to remove the demonstrators. Ultimately, nine members of the San Diego Alliance for Marriage Equality were arrested and spent a night in jail.
A detailed account of the sit-in and arrests may be found here.
Those who were arrested were charged with two misdemeanors: failure to disperse and interference with the business of a public agency.
The latter charge is based on California Penal Code section 602.1b, a law that contains a clause stating that "Section b shall not apply to any person on the premises who is engaging in activities protected by the California Constitution or the Constitution of the United States."
Hence, it is unlikely that this charge can be sustained in this case since protests are clearly activities that are constitutionally protected. The question of whether a law that specifically exempts constitutionally protected free speech from its application can be used to prosecute non-violent protestors is certain to be raised at the trial and in any future appeals.
From the very beginning, questions were posed as to why the nine were charged with misdemeanors instead of infractions as is usual in cases arising out of protests that do not involve violence. (In California law, infractions are not punishable by jail time and are not considered crimes, while misdemeanors are low-level crimes and may be punished by up to a year in jail.) Questions were also raised as to why the City Attorney would allocate so many scarce city resources in prosecuting the cases in the first place.
Over 3000 individuals have signed petitions or sent messages urging the City Attorney to drop the charges against the Equality Nine, as the protestors are now known.
During hearings on the case, San Diego Superior Court Judge Joan P. Weber has expressed skepticism about the charges and the City Attorney's decision to prosecute. In August 2011, she indicated that she was unlikely to impose jail time even if the Equality Nine were convicted and she expressed concerns that "this prosecution will cost taxpayers of this community thousands and thousands of dollars."
On October 17, 2011, in response to her prodding, City Attorney Jan Goldsmith offered a plea deal that would require the defendants to plead "no contest" to violating California Penal Code section 415 (which says that "any person who maliciously and willfully disturbs another person by loud and unreasonable noise" can be punished by up to 90 days in jail and/or a fine of up to $400).
The plea deal included a suspended jail sentence and required eight hours of community service at a nonprofit organization of the defendant's choice. Once anyone who accepted the plea deal presented documentation that they had performed the community service, they would be allowed to "withdraw the plea" and end the case with no criminal record.
In communicating the plea offer to Judge Weber, City Attorney Goldsmith explained why he would not drop the charges: "We cannot simply dismiss the case without some acceptance of responsibility by these nine individuals. . . . there is no First Amendment right to block public access to a public facility. If that were the case, law enforcement would not be able to arrest protesters who block public facilities. There would be no need to have City Council meetings or even court proceedings because protesters could just shut the proceeding down by blocking access. . . . If we dismiss these cases, we would have to dismiss all cases where protesters block public access--whatever the cause."
Three of the Equality Nine accepted the deal, but six rejected it. By accepting the plea deal they would have avoided jail time and criminal records, but they would have in effect admitted that they had been lawfully arrested. Their perspective is that they should not have been arrested and taken to jail in the first place. To protest peacefully is a constitutional right that should not be punished by the government.
Just as the trial of the case against the six remaining defendants was scheduled to begin on May 1, 2012, the case took another turn.
As Dana Littefield and Matthew T. Hall report in the San Diego Union-Tribune, when it became obvious to the defense that the prosecutor was challenging gay jurors simply on the basis of their sexual orientation, the defense made a "Batson/Wheeler" motion, forcing the prosecution to produce a reason for the dismissals. California is one of only two states that forbid the systematic purging of juries on the basis of sexual orientation.
The judge appeared to be visibly angry at the tactics of the prosecution, saying that she found them shocking. Ruling that the prosecution had deliberately dismissed two openly gay jurors for no reason other than their sexual orientation and that the defendants had been denied a representative jury, she dismissed the entire jury pool and re-scheduled the trial.
Judge Weber urged the prosecution to consider reducing the charges to infractions, which would not require a jury trial. She observed that "I've never had so many jurors express concerns about why a prosecutor's office would move forward and spend time and money on a case of this nature."
City Attorney Goldsmith released a statement saying that the dismissal of the final juror was based on his having participated in gay rights protests in the past rather than on his sexual orientation. He did not address the charge that all the openly gay jurors were dismissed.
The trial will begin yet again, with a new jury pool and at thousands of dollars of additional cost on September 18.
While it is easy to understand that the defendants want their day in court so that they can be vindicated, it is less easy to understand why the prosecution insists on continuing this case.
The defendants have a constitutional right to a trial by a jury of their peers and they have no obligation to assist the government in punishing them for activities that they do not see as criminal. On the other hand, the City Attorney has a great deal of discretion as to what cases he prosecutes and in what manner.
The stubbornness of City Attorney Goldsmith is perplexing. He claims that the issue of same-sex marriage has nothing to do with the decision to prosecute the case. Yet it is unusual for a peaceful sit-in to be prosecuted with such zeal, especially when California jails are full and city treasuries empty.
His defense that if he drops the charges in this case, he would have to drop the charges in any case in which public access to a public facility is blocked rather begs the question. The defendants claim that public access was not in fact blocked. Moreover, it is clear that very few if any people were inconvenienced by the protest.
It may be that City Attorney Goldsmith simply values order over civil liberties and the exercise of constitutional rights.
Although the City Attorney has not been charged with anti-gay bias, he is a former Republican state legislator. During his service as a Republican in the California Assembly he earned a reputation as unfriendly to gay rights and issues.
I have been able to find no evidence that he either supported or opposed Proposition 8. The fact that he recently contributed $25,000 to a "superpac" that supports Republican Presidential candidate Mitt Romney, a well-known opponent of same-sex marriage, may or may not be relevant to the decisions he has made in this case.
The City Attorney justifies dismissing gay jurors from the jury pool on the grounds that activists cannot be trusted to be impartial. But if that is true, then is it not also true that a prosecutor who has a record of anti-gay legislative activity and of donations to politicians who are opposed to same-sex marriage might not be entirely impartial in his decisions as to whether to prosecute at great public expense participants in a protest against the denial of marriage equality?
Whatever his motives, Goldsmith's zealous prosecution has come to seem vindictive and an attack on civil liberties.
The video below documents the sit-in that led to the arrest of the Equality Nine.