As offshoots of the Occupy Wall Street movement spread to new cities, protesters are bringing their message to a new space — the courts.
About 1,000 people affiliated with Occupy protests across the country have been arrested to date, said Carol Sobel, co-chairwoman of the National Lawyers Guild’s mass defense committee, which is coordinating legal defense efforts.
Violent clashes between protesters and police have led to felony charges in some cases, but for the most part, demonstrators are facing lower-level charges. The stakes, in terms of penalties, are often low in the misdemeanor cases, but Sobel said not to expect too many guilty pleas or settlements.
Attorneys in different cities are reporting that their clients intend to fight the charges, both because they believe they didn’t break the law and also because they see the courts as another forum for expression. "None of my clients are pleading guilty to anything, and none are pleading no contest. They all want a jury trial," said Cameron Gray, a Lawyers Guild-affiliated attorney in Grand Prairie, Texas, who is representing about 30 demonstrators in Dallas and Fort Worth. "They only way we’re going to get any justice is to go to the people."
The legal landscape facing protesters varies from city to city, but most have faced similar charges for trespassing, blocking traffic or failure to obey orders. These offenses typically carry a maximum penalty of a few months in jail or a small fine, and the majority of protesters would likely face probation if convicted, Sobel said.
The cases present unusual challenges for attorneys and the courts. State court dockets are often already overloaded, so some groups of protesters won’t see a judge until January at the earliest. Another practical consideration is finding courtrooms large enough to hold dozens of defendants at a time.
Judge Melissa Jackson, supervising judge of New York County Criminal Court, which covers Manhattan, designated a single courtroom for all Occupy Wall Street arraignments, and plans for one or two judges to handle all of the cases. "We’re very conscious of the limitations that are placed on any court" by large groups of defendants, she said. Even if defendants proceed as a group, Jackson said, hearings will be spread out so the judge "can pay attention to what needs to be done."
Coordinating legal strategies can also be tough. Erin Duggan, a spokeswoman for the New York County District Attorney’s office, said in a statement that "as with any case where the police make an arrest, we will evaluate each case individually." Cases are being assigned to assistant district attorneys, but Duggan said that a senior felony district attorney is supervising all Occupy cases "to ensure the greatest degree of consistency and fairness in case evaluation and possible disposition."
As of Nov. 3, about 555 Occupy Wall Street-related arrests had come through the New York prosecutor’s office. The largest Occupy-related mass arrest to date was on the Brooklyn Bridge on Oct. 1, where more than 700 people were arrested. Some protesters in the Brooklyn Bridge arrests received summonses, which the district attorney doesn’t handle.
On the defense side, Bethesda, Md.-based attorney Mark Goldstone, a Law­yers Guild-affiliated adviser to one of two Occupy movements in Washington, said the attorney-client dynamic changes when all conversations are essentially public.
"There might be a representative who is empowered to talk to you as a lawyer, but then they again have to run everything by a general assembly, who doesn’t have the benefit of that one-on-one counseling," Goldstone said. "It’s an open forum, and it’s open to law enforcement."
Occupy Wall Street demonstrators first set up camp in New York on Sept. 17. Since then, an estimated 200 similar protests have taken root across the country, Sobel said. The message and mission of the demonstrators isn’t always clear, but the movement is based on populist themes of economic justice.
Arrests have generally fallen into two categories: those arrested for camping out in a public place, often a park or plaza, and those arrested for demonstrating outside of the so-called "occupied" space.
In Philadelphia, officials offered protesters space near City Hall, removing the threat of occupation-related arrests, said Michael Coard, a Lawyers Guild-affiliated attorney in Philadelphia. Coard is representing a protester arrested during an act of civil disobedience elsewhere in the city. "Even though I might have to give them grudging acknowledgement, they’ve played this thing right," Coard said of city officials. About 20 protesters have been arrested in Philadelphia, said Paul Hetznecker, a Lawyers Guild-affiliated attorney also working with the movement. A few protesters have expressed interest in a pretrial diversion program, "but it’s pretty clear that most of them want to proceed to trial," Hetznecker said.
In other cities, the occupation has been the problem, though. In Nashville, Tenn., demonstrators set up in Legislative Plaza on Oct. 7. On Oct. 27, state legislators enacted a curfew, leading to 29 arrests that night and 26 the next night.
When Tennessee Highway Patrol officers went to a magistrate to approve the arrest warrants, though, the magistrate refused, telling police that they didn’t have probable cause, said Tricia Herzfeld, legal director for the American Civil Liberties Union of Tennessee. U.S. District Judge Aleta Trauger of U.S. District Court for the Middle District of Tennessee granted the protesters a temporary restraining order, and a hearing is scheduled for Nov. 21.
The protesters were given citations for criminal trespassing, though, and have court dates set for later this month. Herzfeld said they plan to fight the charges, although it’s unclear how the federal case might affect local proceedings.
The National Lawyers Guild is spearheading legal defense efforts, often in conjunction with the ACLU, but Sobel said nonaffiliated attorneys are also volunteering. Martin Stolar, a New York Lawyers Guild-affiliated attorney, said between 50 to 60 attorneys are doing pro bono work for Occupy Wall Street and he expects that number to grow. "Pretty much everyone has relied on the help that the Guild has offered," he said.
Judges have been trying to schedule Occupy cases together, especially when protesters present a united defense, as the cases move into more time-consuming motions proceedings, though, Sobel said, "the courts may not be able to accommodate that. A lot of it will depend on the size of the court."
At the same time, Gray said he expects judges will want to group cases together as much as possible for the sake of efficiency. "I’ll be opposing that," he said, also noting that Texas’ conservative bent makes defending protesters that much harder. "A defense that’s applicable to one client may not be applicable to another client."
Prosecutors are also still figuring out how best to proceed. Raines Carter, the Atlanta city solicitor, said that, even if protesters arrested in that city want to proceed as a group, "we would look at each case on its own merit." To date, 72 people have been arrested in Atlanta for violating a city ordinance barring them from staying in a park overnight.
The prosecution strategy will differ from person to person, Carter said, because "suppose some people say, ‘Yes, I was part of the process and I plead no contest.’ Or…somebody says, ‘I wasn’t a part of this, I was just walking by.’ "
Ultimately, because there are no formal guidelines for how to handle mass arrests, Jackson said that judges have to use their discretion. Each incident offers a chance to try out different systems, she said, so "this has been very much something that has evolved over time."
Zoe Tillman can be contacted at email@example.com.