Trial for Occupy protesters begins
MANCHESTER - Defense attorney Barbara Keshen, who represents three members of Occupy Manchester who refused to leave Veterans Park by the 11 p.m. curfew on Oct. 19, 2011, told Hillsborough County Superior Court jurors it is true that her clients violated a curfew.
Elizabeth Edwards, Elizabeth "Beth" Grunewald and Matthew Richards are charged with criminal trespass for remaining in the park after curfew.
"That is a truth about this case, but it is not the truth about this case," said Keshen, who argued that Constitutional rights of peaceful assembly and dialogue trump a city ordinance in this case.
Special Assistant Hillsborough County Attorney Lexie Rojas disagreed. Rojas told jurors the case is simple. The defendants violated a city ordinance that bars people from the park between 11 p.m. and 7 a.m.
"This case is about choices," she said, and the three defendants made a conscious choice to remain in the park in violation of the curfew," Rojas said. "They could have chosen to move to the sidewalk during the curfew period. Or they could have chosen to leave at 11 p.m. and return to the park in the morning."
Given that the defendants stipulated, or admitted, that they had been given orders to leave but remained in the park after curfew, said Rojas, there was only one reason to have a trial - jury nullification.
While Rojas described jury nullification as the jury choosing to disregard the law, the New Hampshire statute that took effect Jan. 1, says a jury can find a defendant innocent if jurors have a feeling that the verdict would be a "fair result."
Rojas told jurors the defendants were given opportunity after opportunity to leave. "They are not special," she said.
Keshen argued that the defendants were exercising their Constitutional rights to assemble peacefully and dialogue in a public park.
She said she wasn't asking jurors to agree with or endorse the Occupy movement, but "to say they had a right to be here." To say that they have a right to assemble peacefully in a public park to express their views.
"The Constitution stands for nothing if it doesn't stand for that," said Keshen.
After a tour of the park, behind the courthouse, the prosecution called to the stand Manchester Police Capt. Robert Cunha, who heads the department's legal division and professional standards.
Cunha, who was the "point person" in dealing with the Occupy Manchester participants, described them as cooperative, reasonable and respectful.
Cunha said he was hoping no arrests would be needed, but the Occupy group made things easy, suggesting they could form two lines, one group lining up for citations and the other for arrests, and did so.
During cross examination, Keshen asked Cunha if he has seen some of the group's signs, which she said included: "Share the wealth, there is enough," "Robin Hood was right" and "I won't believe corporations are people until Texas executes one."
Cunha said he wasn't sure which signs he'd seen, but agreed with Keshen's assessment they were clearly political speech.
But Assistant Hillsborough County Attorney Charlene Dulac said speech is not absolute, you can't do it anywhere you want. She also said not enforcing ordinances is a "slippery slope."
Cunha responded that he was trying to see if he and Occupy participants could get to a mutual exit strategy.