The Price Of Protest

I was in court on Friday, Jan. 23rd regarding my Willits Bypass protest case. Judge David Nelson presided this time, since Judge Behnke — who had been with me through it all — is now assigned to another courtroom.

It was, by far, the most friendly judicial proceeding I've ever participated in.

Judge Nelson opened by confirming with my lawyer, Omar Figueroa, a few particularities of my appearance in His Honor's court. In Jan. 2014, Omar and I had negotiated a “deferred entry of judgment” with Assistant DA Paul Sequiera whereby I would receive two misdemeanors, with those counts of “unlawful entry” reduced to infractions after a period of two years — provided I didn't commit any other misdemeanor offenses in that time, such as conducting another aerial blockade of Willits highway construction.

After confirming the essentials of this history, Judge Nelson promptly dismissed all charges against me. It happened so fast, and was so anti-climactic — this being after 20 court appearance spanning two and-a-half years, and hundreds of hours of contemplation on my part — that I didn't even understand what happened until Omar explained it to me after the fact.

Judge Nelson then converted the restitution Judge Behnke had ordered me to pay a year ago — $9,460.45 — from a criminal to a civil matter. Frankly, I am not sure what the implications of this ruling are yet.

Judge Nelson then picked up a binder on his desk containing the voluminous files from my case, held it aloft, looked at me and said something to the effect of “This has been a big part of the history of your life. I'll bet you're glad to have it over. Good luck.”

I muttered a thanks.

I'd entered the courtroom not five minutes before, and I was already headed outside to pose for photos with about 25 people who had showed up to support me in the courtroom.

The Press Democrat incorrectly reported that I have paid the restitution. I have not. Honest mistake on their part, I'm sure, since a press release had implied that would happen.

I did receive about $12,000 from 60 donations to cover my restitution, which I've maintained in a credit union savings account. I decided to accept the donations and fundraising support, which several people had offered, because the restitution is supposed to start accruing 10% interest per year as per Judge Behnke's ruling, and I figure it best to be prepared to pay it off — if I do end up doing so — before the interest kicks in.

If Nelson's ruling somehow gives me a new form of legal recourse, which provides me with a viable option for not paying the restitution, I will send everyone a refund and donate the proceeds from my New Year's Eve Little Lake Grange fundraiser to a kindred cause.

When I accepted a plea bargain with the DA's office in January 2014, the crux of the deal was that I got a reduction of charges from 16 misdemeanors to, essentially, two infractions and revocation of the "stay-away order" that forbid me from going near the Bypass. In exchange, I acquiesced to a restitution hearing. All along, the restitution had been the sticking point in the case.

When the DA first offered me a plea, in July 2013, the stipulations were three infractions with a requirement that I pay restitution. There was no cap on how much the restitution might be. I turned down that offer and requested that the DA elevate my charges to misdemeanors so I could receive a jury trial. If I beat all the charges, the restitution would be dropped. Otherwise, I would have to face a restitution hearing, with no limit on what Judge Behnke — actually, I didn't even know who my judge was at that point — might award CalTrans.

As far as I knew, the DA was asking me to submit to a lifetime of indentured servitude whereby CalTrans levies money from my bank account and garnishes whatever paltry wages I'm likely to earn in the years to come as part of my present profession.

The DA didn't like that I turned down his offer, though, so he piled on 16 misdemeanor charges against me, including various counts of trespassing and unlawful entry. Each individual charge entailed a maximum jail sentence of 180 days, which added up to nearly eight years in jail at maximum.

The DA probably figured he'd given me something to think about at that point, so he offered me another plea deal soon after that, but it still included the uncapped restitution stip. Again, I turned it down.

In September 2013, CalTrans filed for a specific amount of restitution — $490,002. That's the cost to taxpayers Caltrans claimed my occupation of construction equipment caused. Caltrans also started making numerous claims in the media that "protesters" had cost taxpayers $6 million or $12 million in delays in 2013 alone.

At the same time, various apologists for CalTrans and the DA were promoting theories with the intention of discrediting me: I wanted a jury trial because I was desperate for the attention, or I wanted to use this experience as a basis for a book that would help me generate speaking fees from New Age environmental groups — silly things like that.

Mike Geniella, the PD reporter-turned-DA public relations officer, even fed a doggy treat to the apologists when he told KMUD News in fall 2013 that the DA had offered to drop CalTrans' restitution claim as part of one of the plea bargains he floated my way, but that I had turned it down because my goal was to get attention for myself and my cause.

Which never happened.

Meanwhile, the court conducted numerous preliminary hearings, including a memorable one wherein Omar put the cops who had arrested me on the stand. Omar tied up the CHP witnesses in so many knots of fallacy and inconsistency that Judge Behnke dropped one of the charges against me, citing one of the cops' contradictory accounts of my April 2nd, 2013 arrest. Bruce McEwen did a great job covering this one in the AVA at the time.

https://www.theava.com/archives/23880

Omar, by the way, was familiar with me via my work in the AVA, which he regularly reads. He seems to juggle a handful of pro bono activism cases at any given time, with one that ran concurrent to mine being on behalf of an alleged San Jose-based member of the hacker group Anonymous who stood accused of taking down the PayPal, Inc. web site in retaliation for the freeze it imposed on Wikileaks' account following publication of US diplomatic cables in 2011.

I consulted with numerous lawyers, most notably Omar, about strategy at the impending trial. The attorneys' consensus: odds were good I would be convicted on at least some of the unlawful entry charges, thereupon sentenced to some period of jail time, and have a separate restitution hearing regarding CalTrans' $490,002 claim against me on top of it.

I figured my best chance to beat the charges was to convince Behnke to allow me to defend myself on the basis of my action's moral necessity — though it was unlikely the reconstructed ex-Pacific Lumber attorney would go for it, even if he didn't show any indication of particularly having it in for me. I tried a handful of times to recruit the inimitable Tony Serra to my pro-bono legal team, and he gave me some favorable indications but never quite committed. Omar did talk to Serra a handful of times, and the latter related that a trial would be “fraught with peril” — meaning, again, I was probably going to end up doing some time.

The trial date was pushed back three times.

At the final pre-trial hearing, in Jan. 2014, three business days before the trial was scheduled to kick off, Assistant DA Paul Sequeira and Deputy DA Shannon Cox made thier first appearance on behalf of the prosecution.

Whereas Eyster's courtroom psychology and persona had reminded me of Vito Corleone having a bad day, Sequeira was an enthusiastic Good Cop. Following the hearing, Sequeira escorted Omar and I into a conference room in the DA's office.

"Look, we all know these charges are as inflated as hell" — those were some of Sequeira's initial words as he attempted to establish some rapport with me as I sat within the conference room. He told me he didn't mind if I wrote about the conversation for the AVA, since "just about everything that can be said about this case has already been on the front page of the AVA anyway."

Sequeira recounted his long-standing sympathy for non-violent protesters, alluding to some undefined involvement he'd had in protests against Concord Naval Weapons Depot shipments to the Nicaraguan Contras in the '80s. Then he offered to settle the case with a "deferred entry of judgment," similar to probation but without a requirement that I plead guilty or report to a probation officer. At the end of two years, I'd walk away with two infractions.

Sequeira also agreed to my request to restore my right to congregate wherever everyone else in the public can in relation to the Bypass. At that point, I had a "stay-away order," which put a crimp in my ability to continue reporting on the Willits highway boondoggle and were a violation of my civil rights besides, which had already led CHP Lt. Elrod to order me arrested while I was standing on private property, at least 300 feet away from the Bypass' nominal construction, on a certain day in Sept. 2013.

The sticking point remained the restitution. Unnamed other parties became involved in the negotiation. I was obliged to stand in the hallway at this point. The prosecution managed to provide a credible assurance that the restitution would almost certainly be under $10 grand (this was not really a secret, since Omar Figueroa mentioned it to the Ukiah Daily Journal at the time.)

I remained opposed to paying any amount of restitution on principle, though a four-figure bill was certainly more sanguine than a half-mil. Then again, CalTrans was never going to get a judgment for anywhere near that amount. CalTrans had submitted it bogus bill to lend credence to the idea I owed them a lot of money, I figured, and knew they would actually receive less.

Nonetheless, Omar counseled me that he thought this was the best deal I could possibly hope for. Unless I beat all the charges at trial and thereby didn't have to pay any restitution, he reminded me, then Judge Behnke would be given the unilateral authority to set the restitution amount. He would probably be more sympathetic if I went along with Sequeira's offer. If I went to trial and got convicted, that likely meant he would impose higher restitution fees — or so the thinking went.

There's no straightforward legal mechanism for converting restitution to jail time, multiple lawyers have informed me, so I'd be stuck paying a restitution bill anyway. According to a Pelican Bay prison pen pal I'd been exchanging letters with, for example, the jail simply took 55% of the money his family donated to his concession fund as a means to cover his restitution fees.

I chewed over the offer for the two days I had to make my decision, including talking it out in detail with my girlfriend, and more with Omar. I got the sense Sequeira did feel some personal sympathy for me. I also figured the major part of the prosecution team's motivation was political in nature. They were going to send someone with a decent level of public sympathy and reasonably good writing ability to jail, or else they were going to lose in a highly-publicized jury trial. They wanted to avoid reaping embarrassment.

If Mendocino County's criminal justice apparatus were one of my main journalistic beats, no doubt I would have felt more welcoming of a jail sentence. Some time in jail would have given me some great writing material. It would have allowed me to catch up on lots of reading. As worthy as the Mendo judicial beat is, however, my focus largely lies elsewhere, and the prospect of time in jail was not something I really relished.

I was also greatly concerned with the kind of precedent my case would create for people who engage in similar forms of non-violent direct resistance. Time in jail could have cast a pall on similar actions people are contemplating. Or maybe not. It was hard to say.

I started to see the situation as akin to a football game. Acceptance of the DA's offer was like kicking a field goal instead of trying to execute a risky touchdown on fourth-and-goal, eleven yards from the end zone.

In other words, resolving the case with two infractions and payment of less than $10,000 in restitution struck me as somewhat favorable outcome, even if a wholly unsatisfying one.

At the same time, the backdrop for all this was that I had also pulled off a fairly improbable 11-day shut-down of a derrick-like piece of equipment, thus bottlenecking the most damaging part of the Bypass construction effort for more than 11 days. In the process, I'd gone five days without food and shivered my ass off through a two and-a-half-day early-summer rain. My action had also accomplished more than I probably could have reasonably expected, making a political impact that I won't take the space to analyze here. So, I considered my decision in terms of what I'd already been through, and accomplished, in a larger context, while also recognizing the limits of that action — the Bypass had still been built.

In the end, I took the deal. A year later, the restitution hearing took place. Behnke set the amount at $9,460.45. This past Friday, January 22nd was exactly one year from that date, now with a partial Judge Nelson presiding over my case and dismissing all charges against me.

It feels bittersweet, though I've gotten off pretty light — and I've had a lot of help along the way.

* * *

Judge Nelson was correct when he said my legal tussle with CalTrans and the Mendocino County DA's Office has been a big part of my life history.

My political opposition to the Bypass sprouted from the political soil Amanda “The Warbler” Senseman had cultivated with her well-known tree sit, beginning in January 2013. The state, federal, and county governments had just fully committed themselves to the idea that this absurd I-5-style highway around Willits, and its accompanying “mitigation plan,” was worth the sacrifice of wetlands, oak trees, wildlife and $300 million — this in a state with, by some measures, the highest childhood poverty rate in the US.

Amanda's tree sit created a space where people could throw their lot together by saying “No, it isn't.” For a short time, that sentiment found a somewhat receptive audience in the corridors of power. In March 2013, after we prompted a delay in the start of construction by calling CalTrans on violations of the Migratory Bird Treaty Act (one violation of many that took on disproportionate significance), State Sen. Noreen Evans began raising questions about CalTrans' justification for the project. It seemed possible to turn the thing around.

Admittedly, one of the reasons I chose the Bypass as my battleground was personal loyalty to a friend. I had resolved to write about the Bypass for the AVA. It was Amanda and Sara Grusky of Willits' Green Uprising Farms who recruited me to organize against it. Amanda is a good friend, and I felt a powerful identification with her when she went up in the tree. She had created a space for people to come together and pursue collective action, as against a culture that overwhelmingly encourages private pursuits, retreats, anxieties, and greeds. I wanted to support her in every way possible. To that end, I even got arrested on two occasions, largely as an expression of solidarity, in March and April of 2013, respectively.

A larger part of my calculation involved my desire to change the world. A project like the Willits Bypass is easy to view as a provincial matter. The California Transportation Commission and Mendocino Council of Governments put up the funding; CalTrans builds it; presumably, the locals support it because it takes traffic off their streets. On the other hand, I saw the Bypass as a manifestation of the same social forces and problems that people have been dealing with for many centuries, part and parcel of an industrial capitalist system that privatizes profits and externalizes costs, and at this point has created an ecological crisis that threatens the fabric of life on the planet.  CalTrans had sought to build the biggest freeway possible, one absurdly out of proportion with the amount of traffic it will serve, and they found enthusiastic accomplices in people like Rep. Mike Thompson, their construction contractors (including one of the world's largest construction firms, Hotchief), and local politicians.

Of course, the system that engendered this project could not have been expected to lie down and let a movement in the outback of Mendocino County trim it back, or else scuttle it altogether – not with approvals from state and federal agencies already in hand.

After a while, the California Highway Patrol essentially rolled over the top of us. The CHP dispatched more than 60 officers from throughout the state, with choppers, satellite communications equipment, and (according to one document I have) two members of their undercover division (the investigative services unit), to handle the relatively small amount of disorder we had created.

In a sense, our efforts to oppose the project once it was already authorized probably never stood a real chance. But I see our opposition as having been quite successful.  The legacy of that opposition will likely be felt if CalTrans decides to pursue any similar projects on the North Coast. The Coyote Valley Band of Pomo Indians and Round Valley Indian Tribes now have an important lawsuit that may change some of the worst aspects of the Bypass mitigation plan.

So, while the culmination of my legal scuffle with CalTrans and the Mendocino County DA is not purely a happy ending, the opposition to the Bypass has not suffered anything near a pure defeat.