Moss's pre trial date came and went in early January. They set a date for the criminal trial. It will begin on February 1st. I wrote briefly about the legal woes back when this all began, but in order to sufficiently update the saga, some more details are needed. ....
As some of you know who follow our blog, Moss was arrested a few months back for exercising his right ( protected by both the state and federal Constitution) to gather signatures of registered voters on a state initiative. He was in front of a certain big name store which I am not going to name due to the legal issues. It is a very well known and established fact that this activity is allowed any place that is "open to the public" and connected to other stores via a sidewalk ( like in a shopping plaza). This particular store chain knows this and has challenged this fact many times in court and lost, the ruling even being upheld by the supreme court. However they continue to find new and inventive ways to harass people working on state initiatives and registering people to vote.
Despite Moss's best attempts to talk to the police and store managers, including showing them the laws and cases upheld in superior courts, they threw him in jail and made us post 5,000 dollar bail. This by the way is the bail amount reserved for felonys, he was booked on a misdemenor.
At this point we went directly to a civil rights lawyer who agreed we had an air tight case. She is so sure that she is willing to take our civil case on contingency (meaning she doesn't get paid unless she wins).
First however, we need to get through the criminal trial, which is the scary part....
What makes it particularly scary is a man, a passerby who showed up while the managers were asking Moss to leave and interjected himself into the drama. He approached Moss and told him that the sidewalk was for "walking not harassing people with your damn initiatives " and that he should leave. Moss declined. He then got in his face and threatened to "kick his ass", to which Moss just ignored him and turned back to trying to reason with the store managers. At this point several of the store managers took him aside and began speaking quietly to him for some time.
While this was happening there was a woman present, the woman who was in the middle of signing the initiative when the managers first approached. She happened to work for a lawyer, and heard the whole thing from start to finish, including the interaction with the man who threatened Moss. When the cops came she tried to help by explaining to them that it was indeed his right to petition there, regardless of private property or not. They of course refused to listen and Moss was inevitably thrown in jail.
A week or so later when we got a copy of the police report we were stunned to read that the man who approached Moss and threatened him bodily harm, told the police that Moss had physically blocked him from entering the store! We also noticed that he was booked on a 602.1., "interfering with a business operator". A quick search on the net revealed that a 602.1 is the following.....
(a) Any person who intentionally interferes with any lawful business or occupation carried on by the owner or agent of a business establishment open to the public, by obstructing or intimidating those attempting to carry on business, or their customers, and who refuses to leave the premises of the business establishment after being requested to leave by the owner or the owner's agent, or by a peace officer acting at the request of the owner or owner's agent, is guilty of a misdemeanor, punishable by imprisonment in a county jail for up to 90 days, or by a fine of up to four hundred dollars ($400), or by both that imprisonment and fine.
This is ludicrous of course as Moss did not harass or intimidate anyone. We realize however that this is how the store and police are attempting to spin the situation in order to legally arrest him, as they know they cannot simply arrest him for partitioning. We were very surprised to learn that this man has decided to go before the court in February and tell this lie. We however also have our witness, the woman who was in the process of signing the initiative and saw the entire interaction. She has agreed to testify on Moss's behalf.
There are a few other interesting points as well. In regards to the 602.1 there is a little clause at the bottom which states the following,
c) This section shall not apply to any of the following persons:
(1) Any person engaged in lawful labor union activities that are permitted to be carried out on the property by state or federal law.
(2) Any person on the premises who is engaging in activities protected by the California Constitution or the United States Constitution.
(d) Nothing in this section shall be deemed to supersede the application of any other law.
So, even if Moss had been physically blocking the man from entering the store, which he most certainly was not, according to this law, he could not be arrested for it. We brought this up to our public defender who in turn brought it up to the DA and we are awaiting his response.
We have also recently been made aware of the fact that this man, who has decided to go before the court and lie, is a retired police officer. This brings up a whole host of interesting possibilities.Was he working for the store undercover ? Was he a plant ?
The trial begins on Febu 1st and if found guilty by a jury Moss could go to jail for three months. If he is found not guilty we will then proceed with the civil trial and lawsuit.Currently we have a PD for the trial but we are quickly loosing confidence in her. Our civil lawyer said that she would take the criminal trial for us, thereby relieving us of our public defender who means well but is way over burdened with cases. She said they very rarely will take a criminal trial, especially on contingency, but she really believes in this case .
Going with the civil lawyer means that the trial will be pushed back another 30 days and that eventually we will have to pay a lot more money. The money saved will mean nothing though if Moss is in jail for something he did not do.
Both our PD and civil lawyer have mentioned that the area where this occurred is very conservative. The judge, as well as the jury is likely to be conservative as well. What's more is this particular station is well known for being corrupt. The lawyers even went so far as to mention, independently, that they would not be surprised if the store (located directly across the street from the main police station and courthouse)had favor with the court and police.
We came into this whole thing very naively, thinking that if a person is innocent, that is all they need, they will be found not guilty and justice will be served. However, we are becoming increasingly uneasy as we realize that this is not always the case.
I think the court blkif himself said it best recently.
At the last hearing Moss asked the judge (filling in for the previous one)to return the 5000 cash bail we posted six months ago. At the first hearing the judge ruled that she would return the bail under the stipulation that he must not come within 500 feet of said store. The bail however never came and as it turned out the court clerk neglected to write it down, so there was no record of it. Our PD asked the judge about this and he decided that, regardless of the previous ruling, since there was no record of this, the bail would not be returned until the conclusion of the trial. Moss questioned the judge about this and he did not take kindly to the questioning.
On the way out of the courtroom the bailiff whispered to Moss that he should not ever question the judge that way. Moss responded,
" You know what happened ! You were there, she ruled that the bail be returned. It's just not right.." The bailiff indicated that he did indeed recall.
" It's not about what is fair ", came the bailiffs almost aplogetic reply...
" It's about doing what they tell you " .......
Original painting entitled " Hypnagog " by Carey Thompson
