Protesters win fight over demonstration at high court
By Tony Mauro The National Law Journal
Just as routinely, they are convicted and their convictions are upheld under 40 U.S.C. 6135 and related sections, which make it a crime to "parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds," or to enter the court grounds when they have been duly closed by the court's marshal.
But late last month, the pattern was broken when six protesters from the January 20 Occupy the Courts demonstration were tried before a D.C. jury — the first time, apparently, that Supreme Court protesters asked for and were given a jury trial. Jurors acquitted three of the defendants on the parading count, also finding that one of the defendants was not guilty of assaulting an officer.
What's more, D.C. Superior Court Judge Gerald Fisher dismissed the unlawful entry charges because the government had failed to prove that the grounds were properly closed. All told, only three of the 13 charges against the six defendants survived.
"It was a huge win," said D.C. practitioner Mark Goldstone, who has for years represented protesters at the court and at other government locations. The jury was sympathetic even though the Occupy protests were not particularly popular, he said.
The trial, Goldstone said, could represent a turning point that will ultimately lead toward "reopening the plaza and steps to the public" and "reclaiming public property for public purposes." Goldstone, among others, has long criticized the federal law and the government's justification for it; namely, that the court, as an independent institution, should not be viewed as susceptible to being swayed or influenced by such demonstrations.
The assistant U.S. attorneys pressed that argument, according to Goldstone, as well as the general government interest in order and decorum at public buildings. Neither argument seemed to impress jurors, said Goldstone.
In the 1983 case U.S. v. Grace, the court cited those arguments as it left in place the law against demonstrating at the court, except as it pertained to the public sidewalks surrounding the building. Demonstrations are allowed on the sidewalks.
The defense team, which also included lawyers Ann Wilcox and George Lane, asked the judge to dismiss the charge of unlawful entry because there was inadequate proof that the court marshal had officially closed the court grounds that day. Court police chief Ross Swope was the top court official visible during the demonstration. Judge Fisher granted the motion to dismiss when the government failed to produce a document showing that the marshal had ordered closure, Goldstone said. Just before the case went to the jury, Goldstone added, government lawyers said there was such a document, but they refused to disclose it to the defense. Assistant U.S. attorneys Travis Hill and Melanie Devoe declined comment on the trial or its outcome.
The January protest was unusual in other respects. Demonstrators are usually arrested on the plaza or steps in front of the court, but not this time.
Hundreds of people, protesting the high court's Citizens United decision, rallied across the street on U.S. Capitol property, then crossed First Street to storm the court building. Demonstrators broke through a barricade close to the public sidewalk in front of the court, and police allowed demonstrators torace up the marble steps, almost to the columns near the bronze front door. Goldstone argued that the police tactic amounted to entrapment.
Tony Mauro can be contacted at firstname.lastname@example.org.
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