By Staff
In a high profile case, Jerry Burton, Terese Howard and Randy Russell were tried for their charges under Denver’s Unauthorized Camping Ordinance. This is the first time that anyone charged with Denver’s Unauthorized Camping Ordinance has brought the case to a jury trial. Most defendants ticketed under this ordinance, lacking in resources, choose not to contest these cases ,and settle for the city’s plea deal. The deal, usually amounts to community service of some sort. What you have is poor people, needing work that pays sustainable wages, getting told to work for free as a punishment for sleeping when they have no place else to go.
The trial started on April 4, 2017. It was evident early on that things would be unusual in this trial. For example, during the jury selection, several prospective jurors disqualified themselves expressing opposition to the law’s very existence. One juror responded “I don’t feel like this is the appropriate case for anyone to judge.” During the jury's three-hour deliberation, the jurors called the defendants in to ask them, “If we convicted you, could we help you pay your fine?” When was the last time you heard a jury call defendants in willing to pay the tab? The jurors were obviously struggled with their desire to honorably serve our community and their desire not to hinder the defendants' ability to survive in our community. In the end, the jury rendered a guilty verdict and the judge sentanced all three defendants to probation and mandatory community service.
During the proceedings, the city attorney's office requested. Changes that seemed oddly over-restrictive. For example, the full ordinance that the defendants were charged with was not allowed to be read to the jurors at the trial. The defense was not allowed to mention jury nullification. Jury nullification is an option allowing a jury of your peers to not convict you if they feel the law you are charged with is unjust. Thus nullifying it.
Considering how the jury selection process went and the concerns of the jury during deliberation, the jury would have very likely considered jury nullification as an option had they only been informed that it was a possibility. Yet the judge did not even alow the defence to mention it. How could jurors render proper judgment when they were not allowed to hear the ordinance or be educated as to all the verdict options tavailable to them? Makes you wonder what was really going on in that trial, doesn't it?
There was a lot of effort by the city attorneys' office for a just misdemeanor charge . The defense was restricted to a very narrow legal box before the trial even began due to the plethora of restrictive motions by the city. This included restricting the defence from being abe to use the “necessity defense” whaich would have allowed the defense to at least argue that homeless people have no choice but to break the law, and thus cannot be convicted of “crimes” such as sleeping and surviving in public. Judge none the less allowed these motions all the same.
The city’s legal strategy was to try and frame the case as to having “nothing to do with homelessness.” At a Feb. 16, 2017 motions hearing, Judge Lombardi even stated that the defendants’ being homeless was “irrelevant” to the case.
All three defendants rejected the language of “camping” as a distortion of the reality facing homeless people throughout our city. Instead, they referred to their “surviving,” their not engaging in recreation. Throughout City Attorney Watadaa’s line of questioning, Russell refused to accept the term “camping.” Eventually leading Watadaa to reluctantly ask him, “You know it’s against the law for you to survive in Denver?” During her closing remarks, Watadaa included the following outrageous statement referring to Police Sargeant Scutter’s testimony: “The sergeant told Mr. Russell, "You can’t be anywhere!"”
In imposing her sentence, the judge chose not to impose any area restrictions, stating that they didn’t make any sense; “You live there,” she stated, admitting that the defendants would likely be back on the street tonight. “You could get ticketed,” Judge Lombardi told them, “You’re taking a risk.” So just what was it that Judge Lombardi meant when she stated that homelessness has nothing to do with the case?
When Terese Howard gave her sentencing remarks, she reminded the court that this case was not about the three defendants alone. “We have brought this case to the people to find justice,” she stated, “but we have found that the system is not ready for justice at this time.” She specifically called out the judge for her part in trapping the jury into such a narrow definition of the law as to eliminate the possibility of justice.
“But we continue to fight!” Howard exclaimed. And fight on we will! The fight continues through the courts in other cases, including a federal lawsuit against the City and County of Denver for its confiscation and destruction of people's personal property during homeless sweeps operations.
It continues on the state level with legislation such as the Right to Rest Act. If passed this act would stop cities from passing or enforcing laws that criminalize peoples existence in public space.
Finally, the fight continues on the streets where homeless communities organize daily to change a corrupt system, stop its brutal treatment of the homeless community and to respect peoples rights to survive.
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