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Rough justice

As protesters at last summer’s Republican National Convention come to trial, a nasty tale emerges

For nine months before the Republican National Convention, which took place in Philadelphia from July 31 to August 3, Philly police worked closely with the FBI and Secret Service, as well as with state troopers from Pennsylvania, New Jersey, and Delaware, to ensure that the GOP confab would not be disrupted. The first part of their strategy was effective, if not particularly novel: arresting and jailing street protesters. It’s not much different from what their brothers and sisters in blue did last April in Washington, DC, where protesters flocked to demonstrate against the World Bank and the International Monetary Fund.

But the second part of the Philly strategy was much more malicious. When protesters are arrested for acts of civil disobedience, most police departments issue summary offenses, which are no more serious than traffic tickets. The Philadelphia police had done this for years. When police arrested more than 400 protesters last summer, however, they instead slapped them with misdemeanor and felony charges. Doing so allowed prosecutors to seek bail, which they did with zeal — those arrested were held on bail ranging from $10,000 to $1 million. That allowed police to keep many activists off the streets for days after the GOP delegates had left town. And it also let prosecutors pursue cases against those protesters who’ve refused — on principle — to plead out their charges.

If the city succeeds in convicting people and sentencing them to jail time, it will surely have a tremendous chilling effect on the future of organized activism. As Chip Berlet of the Somerville-based Political Research Associates explains, “In Philadelphia, we saw the return of overt government repression of dissent. Which works fine for a police state, but not at all for the free-speech principles of democracy.”

Philadelphia district attorney Lynne Abrahams has assigned attorneys from her office’s elite homicide unit — the city’s A-list of lawyers — to prosecute these outstanding cases. It’s a move that Philadelphia defense attorney Lawrence Krasner finds ridiculous. “These are not killers,” he says. “They’re students from Brown.”

To date, the DA’s office has prosecuted 143 cases. Despite the high priority they’ve received from prosecutors, 90 percent of the misdemeanor court cases have been thrown out for lack of evidence, as have half the felony cases. (Of the cases not thrown out, six of 43 defendants have been convicted of misdemeanors in trials since last fall. Many of them were sentenced to six months’ probation and community service to be performed in Philadelphia, although they are not city residents. All have appealed. One protester was sentenced to 90 days in prison — but it was for violating probation for a previous arrest.) But the upcoming January 25 trial of 19 defendants charged with seven misdemeanors — obstructing a highway, failure to disperse, resisting arrest, disorderly conduct, and three counts of conspiracy — has observers worried.

Judge Seamus McCaffrey, a former police officer known for his pro-cop reputation, is assigned to the case. Defense attorney Shawn Nolan is representing most of the defendants, including two Boston-area activists: Alex Rae and “Chill Breeze” (who wishes to remain anonymous). He filed a motion asking McCaffrey to recuse himself from the trial. In the motion, Nolan describes how McCaffrey, at a health-care conference last July, told a 40-person audience that he planned to make sure streets were cleared of protesters during the GOP convention. “Our position is that he cannot be a fair trial judge,” Nolan explains. But after being challenged in court January 16, McCaffrey has refused to recuse himself.

“I don’t know what to expect,” admits Rae, 25, a Harvard graduate involved with the Boston Global Action Network. “The defeat rate is huge.... It’s as if police and [prosecutors] never thought it’d get this far.”

Another case involving a local demonstrator is even more troubling. Providence-based housing activist Camilo Viveiros stands accused of throwing a bicycle at Philadelphia Police Commissioner John Timoney during an August 1 march against the “criminal-injustice system.” He originally faced charges of assault with intent to murder, conspiracy to attack police, riot, resisting arrest, reckless endangerment, disorderly conduct, and possession of an instrument of crime. They’re charges that the 29-year-old Viveiros described as “trumped up.” At an October 12 pretrial hearing, in fact, Philadelphia Court of Common Pleas Judge Pamela Dembe agreed by throwing out the conspiracy charge and reducing the assault-with-intent-to-murder charge to simple assault. Abrahams has appealed the reduction in charges. (Timoney testified at the hearing that he hadn’t suffered any injuries in the alleged scuffle. And prosecutors failed to show that Viveiros had acted with two other protesters to commit the supposed crimes.) If convicted of the remaining charges, however, Viveiros could face up to 10 years in prison.

RAE, BREEZE, and Viveiros were arrested August 1, the day protesters had scheduled a massive demonstration against the “criminal injustice” system. Ironically, Viveiros, who works for the Boston-based Massachusetts Alliance of HUD Tenants, didn’t plan to attend the demonstration when he went to Philadelphia last summer. He went to advocate for housing issues and intended to return home July 31 to finish a grant application.

But after learning about the August 1 protest, Viveiros decided to stay. By doing so, he joined Rae, Breeze, and hundreds of other activists interested in calling attention to the nation’s failed drug war, the death penalty, and the escalating prison population. Protesters also planned to press one particularly sensitive issue for Philadelphia’s finest: the 1981 conviction of Mumia Abu-Jamal, who is on death row for the murder of Philadelphia patrolman Daniel Faulkner. Numerous civil-disobedience actions were coordinated for that day, activists say. But the prospect of arrest didn’t necessarily cross their minds. As Breeze puts it: “I didn’t go down there planning on getting arrested.”

The morning of the demonstration, police went on the offensive by searching a warehouse — dubbed the Ministry of Puppetganda by protesters — where about 75 activists were preparing the giant satirical puppets that have become a signature of last year’s massive protests. Protesters refused to let police enter until they produced a search warrant, which they did hours after arriving at the warehouse. By then, attorney Bradley Bridge of the Defender Association of Philadelphia was on the scene to broker a deal. Protesters agreed to surrender — but only on the condition that they’d be released if the police failed to find anything illegal. Protesters insisted that Bridge accompany police on an inspection tour to ensure that no illegal items would be planted. Police “found nothing in the warehouse,” he recalls. Despite this, the city condemned the building and confiscated the puppets. The police also violated their agreement with Bridge by handcuffing protesters and driving them around the city for hours in sweltering buses without food, water, or bathroom facilities. At 1 a.m., protesters were charged with various misdemeanor crimes and jailed at police headquarters.

At court proceedings last month, the prosecution was forced to withdraw its thin cases against 65 of the protesters arrested at the warehouse. (Ten others had earlier opted for a plea bargain.) Pretrial hearings revealed that four undercover Pennsylvania state troopers, posing as union carpenters, had infiltrated the warehouse. Although troopers testified that demonstrators had planned to use the puppets as “sleeping dragons” to block streets, they failed to link even one protester to a crime.

Also at the hearings, the 28-page affidavit that police had used to obtain the search warrant was unsealed — revealing a startling Cold War mentality. To justify the search, police had relied partly on a report from an obscure right-wing group called the Maldon Institute, which claims that anti-corporate-globalization activists are funded by “Communist and leftist parties” and “the former Soviet-allied World Federation of Trade Unions.” In other words, explains Berlet of Political Research Associates, “police argued demonstrators were being manipulated by some international conspiracy, which is ludicrous.”

Timoney, the police commissioner, is reluctant to discuss the state-police infiltration and his department’s actions. “I’m sure we’re going to get sued on that,” he says. He acknowledges that 10 young officers who were dressed like protesters attended demonstrations, but insists that Philadelphia police did not infiltrate activist groups. Although his department worked closely with federal and state authorities in the months leading up to the GOP convention, Timoney maintains that he didn’t know about the infiltration at the Haverford Avenue warehouse until August 1. In a Philadelphia Inquirer article, however, Pennsylvania State Police spokesperson Jack Lewis said that local police were told in advance about the state’s infiltration plans.

Philadelphia police continued their aggressive tactics throughout the day, arresting hundreds more activists — including Rae, Breeze, and Viveiros — who had filled the streets for the criminal-injustice demonstrations. Rae recalls that he’d made his way downtown that day to attend several “aggressive yet peaceful” marches. Around 4 p.m., thousands of protesters stationed themselves in the streets surrounding Philadelphia City Hall. Some sat in intersections. Others staged soccer games. Rae noticed a growing police presence. Bicycle patrols taunted crowds. “They would ride up into people,” he explains. Police helicopters roared overhead. Eventually, officers picked up protesters and carted them away. “I thought, ‘Oh no,’” Rae recalls, “‘here we go.’”

Because of his imminent trial, Rae declines to discuss his arrest except to say, “Police decided not to be open about beating up people in the streets, but they were just as aggressive behind the scenes.” Rae did not suffer injuries during his arrest, but he says he knows protesters who did. Rae and Breeze, who was also arrested in the sweep, were charged with seven misdemeanors and held on $10,000 bail for what their attorney Nolan describes as “sitting in the middle of the street.”

Compared to what happened to Viveiros, however, Rae and Breeze were lucky. Viveiros also attended protests near City Hall, but made a fateful decision to join a spontaneous march — a decision that set him on a collision course with police.

According to police testimony at the October 12 pretrial hearing, Timoney and two patrolmen encountered that march — and 10 people rocking a car — at the corner of Latimer and 17th Streets. Patrolman Clyde Frasier said he grabbed two men by their shirt collars, but as he tried to cuff them, Eric Steinberg of Memphis, Tennessee, came at him with a police bike. Frasier said he punched Steinberg’s chest, knocking him to the ground.

Timoney testified that he was struggling with another protester when Viveiros came from behind and threw a bike at him. In an interview, he told the Phoenix that he grabbed Viveiros by the heel, saying to himself, “This son of a bitch is going nowhere.” After Viveiros’s arrest, Timoney testified, he noticed another man, Darby Landy of Raleigh, North Carolina, trying to steal a bicycle. Timoney clutched the bike, he alleges, but Landy yanked it and tossed it at him. Another officer arrested Landy as he ran down the street.

After the clash with police, Viveiros was charged with committing felonies and held on $450,000 bail. Similar charges were filed against both Landy and Steinberg.

Viveiros, too, declines to discuss his arrest for fear of jeopardizing his court case. But he says, “Their claims that I attacked them [are] not accurate.” His lawyer Robert Levant adds, “He’s innocent, and that will be shown at trial. There’s no question.”

Those who know Viveiros can’t believe that he’d throw a bike at anyone. His boss even calls him “the most Christ-like person I know.” But for those who participated in the protests— some of whom know Viveiros — his arrest isn’t unbelievable. It was simply part of a concerted police plan to quash dissent, starting with the infiltration of the protest groups and continuing with the trials.

Defense attorney Krasner says these cases lay bare “a deliberate attempt to stifle traditional dissent” — and not just in Philadelphia. What happened last summer, he and others maintain, reflects a national effort, one that’s become increasingly sophisticated since the November 1999 protests against the World Trade Organization in Seattle.

TIMONEY SAYS his department’s extensive preparations that day went off without a hitch. “By and large,” he told the Phoenix in December, “it went according to plan.” He is especially proud that he kept his promise to ACLU leaders during pre-convention meetings not to use tear gas and rubber bullets. “The one thing I didn’t want was Dan Rather or some other guy going on TV with scenes like Seattle,” he explains. (Given that Seattle’s police chief resigned because of the now-famous protests, what commissioner would?) Calling protesters “crybabies to the core,” Timoney denies civil liberties were ever violated. The criminal cases have collapsed, but not because protesters are innocent, he contends. Rather, he says, “that’s indicative of Philadelphia justice.” The majority of criminal suspects, he explains, end up on the streets because of an overly permissive court system.

However, they may also be on the street because of sloppy police work. Police tactics were so aggressive that even Philadelphia residents who had nothing to do with the protests were targeted. Seven people working as medics, for instance, were stopped and detained for hours on August 2. Police forced them to dump or drink the “suspicious liquids” they were carrying — which turned out to be water, milk, and mineral oil. The medics filed the first civil lawsuit related to the GOP convention protests back in September.

Police also stunned the public by arresting six prominent activists for being “ringleaders” during the convention demonstrations. All six were explicitly named in the 28-page police affidavit used for the warehouse raid; several of them maintain, through their lawyers, that police had kept them under surveillance for weeks. The most high-profile example is John Sellers, who heads the Ruckus Society, a Berkeley, California–based organization that trains activists in civil-disobedience techniques. Sellers was yanked off a downtown street August 2 and charged with 14 misdemeanors, from conspiracy to “possession of an instrument of crime” — his cell phone.

Sellers was jailed for six days on an unprecedented bail of $1 million. That’s $500,000 more than the bail recently set for Nathaniel Bar-Jonah, a former Massachusetts resident who cannibalized a 10-year-old Montana boy. Yet at Sellers’s November 14 trial, prosecutors dropped all counts, telling a judge that they didn’t have enough evidence. “That they would lock him up on $1 million bail, and then come to court without any evidence, tells me that the police and DA have gone way overboard,” says Krasner, who represents Sellers and several other alleged ringleaders. He asserts that the case against Sellers was so weak that police resorted to “making stuff up.” Early records accuse Sellers of aggravated assault, he says, a charge that was later changed to blocking traffic.

A blatant double standard in the police arrests has also come to light. In October, for example, Philadelphia Municipal Court Judge James DeLeon dismissed counts against seven people who had been arrested for lying in a street at a July 31 demonstration against the School of the Americas (SOA), the United States military academy that trains Latin American officers. DeLeon threw out the case on grounds of “selective prosecution” after he found that police had failed to arrest hundreds of people who blocked another street that same day while calling for Abu-Jamal’s execution. The only difference between the two protests, the judge wrote, is that opinions of the SOA demonstrators “were not viewed as favorably by Philadelphia citizens.”

The largest group trial thus far has proved to be something of an embarrassment for the prosecution. Boston resident Patrick Whittaker (who moved to San Francisco this month) became one of 43 defendants to appear in court November 27 after getting pinched at Broad and Spruce Streets. At his trial, Judge DeLeon acquitted all but five protesters of various misdemeanors because of a lack of evidence. Recalls Matt Borus, a Boston activist who attended Whittaker’s trial, “The judge said they needed somebody to testify that somebody committed a crime.”

Borus adds, “The DA’s office knows perfectly well that protesters aren’t a danger to the people of Philadelphia. In this case, they were forced to admit it.”

KRISTOPHER HERMES of the watchdog group R2K Legal Collective concedes that some demonstrators vandalized police cruisers by using spray paint and slashing tires. But that doesn’t mean the August 1 protests were all about violence. “Thousands of people were there,” he says. “If they wanted, they could have ripped apart the city.” Of the 404 arrested, he notes, police failed to charge even one person for these vandalism crimes. Instead, they arrested peaceful protesters who had done little more than speak out against myriad criminal-justice issues.

Protesters who managed to escape arrest turned their attention away from the convention to their imprisoned colleagues. For days, one vigil after another was staged outside police headquarters. Inside, conditions remained poor. Whittaker was one of scores of people who refused to cooperate with police by giving their names. So, he says, police hog-tied him and dragged him to the fingerprinting area. Rae tells similar stories. Police, he says, fastened plastic handcuffs so tightly that protesters’ hands went numb. Others suffered cuts and bruises.

Timoney insists that such stories are “completely made up.” In Seattle and DC, protesters who refused to give their names — a common act of civil disobedience — were released. But Philadelphia police kept such protesters because, as Timoney explains, “we said, ‘We’re not going to [play the] game.’ They kept themselves in jail and now they’re complaining.” As for the abuse allegations, he praises his men for showing “remarkable restraint.” Twenty-six officers suffered injuries; still, he says, “Not one protester [was] injured. Over 400 arrested. That must be a first.” Referring to Viveiros, he adds, “Your boy from Massachusetts walked in to the station. Nothing happened to him.”

Medical records, however, indicate that Viveiros received a mild concussion during his arrest. And these days he has a different headache, since he could face years of legal wrangling before going to trial. Abrahams’s decision to appeal the reduction in charges against Viveiros will delay his trial date by at least a year.

“What’s up with that?” asks Chill Breeze, a friend of Viveiros. “Police and prosecutors are scared shitless of continuing protests. That’s why they’re reacting so strongly.”

EVEN IF their cases are dismissed, their Philadelphia experiences have forever changed the lives of these defendants. They have focused on nothing else for months. They’ve wasted hundreds of hours worrying about their defense. They’ve spent thousands of dollars traveling to and from Philly to appear in court. Some felony defendants have also been forced to spend thousands more hiring private lawyers, rather than rely on the seven who are representing defendants for free.

Their crash-course introduction to the American criminal-justice system — Philadelphia’s version, anyway — has left them determined to speak out. Explains Rae, “They’ve taken 400 people and put them through hell.” Rae has had no regrets these past months because, he says, “It’s been a real wake-up call.”

Timoney has few regrets as well — and why should he? Immediately after the convention arrests, as Krasner says, “Timoney was practically put on his own Mount Rushmore.” Billboards were erected thanking him for a job well done. “He was God’s gift to the humane treatment of stinky protesters,” Krasner adds. But as the prosecution’s cases unravel and the arrest details surface, public opinion has shifted. The St. Petersburg Times even ran a January 6 editorial criticizing police for using “disturbing, unconstitutional tactics deserving of a Justice Department investigation.”

But Timoney stands by his contention that he and his men did a good job. He proudly points out that just days after the GOP convention, the Los Angeles Police Department resorted to shooting pepper spray and rubber pellets at protesters during the Democratic National Convention — something his cops never did. But if the Philadelphia trials have shown anything, it’s that avoiding excessive force is not enough. Perhaps the ACLU’s Stefan Presser sums up the sentiment best: “Police [gave] the impression they were [complying] with the Constitution. They were massively violating civil liberties.”

Kristen Lombardi can be reached at klombardi[a]phx.com.

CIVIL-LIBERTIES LAWYERS consider it one of the worst large-scale violations of First Amendment rights since the Vietnam War — and as many as 25 New England activists were caught in the middle.

CIVIL-LIBERTIES LAWYERS consider it one of the worst large-scale violations of First Amendment rights since the Vietnam War — and as many as 25 New England activists were caught in the middle.