Although the reporter has dutifully reported the facts that were available to her, i.e. what was said in the complaint, the facts that came out at trial were rather different. The man arrested was not engaged in slashing tires of any kind at any time, although the arresting officer mistakenly thought he was. Even the prosecutor does not think the defendant was slashing tires (or at least does not think he can prove it) -- witness the fact that all charges for property damage were dropped.

Why, then was the defendant prosecuted? Because he went limp at the time of arrest. He went limp. That's it. That was his entire role in the 'unarrest incident.' That he went limp.

In truth, the entire "escape from custody" was carried out by other people, whom the defendant did not know and was done without the defendant's consent. People in the crowd grabbed his legs and engaged in a tug-of-war with the arresting officer, but the officer held on. Someone from the crowd 'body checked' the officer, knocking him to ground. The officer skinned his shin on the curb and banged his knee on the ground, but he held on. He unleashed a spray of Mace in a 360-degree circle around him, driving back the crowd, and he still held on. But numbers were against him, and at last he lost his hold. The defendant was dragged away by his feet into the crowd and disappeared from view. The lone officer stalked back to his squad car to radio for help. But before help could arrive, the Saint Paul Police were ordered to evacuate the city. The officer left the scene, as ordered.

The defendant, bleeding and dazed found himself about a block from the scene when he had regained his feet and his awareness of where he was. He staggered away from the crowd to find some fresh air and wash the Mace from his face.

At no time did anyone pelt the officer with anything. The complaint may say they did, but the officer did not make such a claim on the witness stand, nor is there any evidence of such in the videos of the incident. You don't see people in the crowd heaving things. You don't see things flying through the air. You don't see the arresting officer ducking or flinching. You don't see people in the crowd ducking or flinching.

What the officer did testify to is that the crowd surged around him, shouting, "Let him go! Let him go!" The officer said that he feared he would be injured, feared the crowd getting out of control, feared having his gun or his Mace canister taken (and perhaps used against him). But in reality, the only thing that happened was that someone knocked him down to make him release his grip on the prisoner. Of all the dozens of people around him, no one else laid a hand on him. As soon as the incident was over, the crowd moved on and the officer was left alone. His squad car was left alone. And no one came to help him.

But wait -- further testimony came from an FBI agent in the crowd! He was undercover at the time and he saw the entire incident. Loathe as he was to break cover, he was about to come to the policeman's aid, when -- quick as a summer shower -- the incident was over. Since the officer was no longer in danger, the FBI agent decided to remain incognito.

So how does a man who has done nothing but go limp become "guilty" of felony escape from arrest?

As the judge instructed the jury, the elements of a felony escape from custody are:

1) there has to be a lawful arrest

2) there has to be an escape, and

3) it has to be an arrest for a felony in order to be a 'felony escape.'

Minnesota law holds that:

The defendant is guilty of a crime committed by another person when the defendant has intentionally aided the other person in committing it, or has intentionally advised, hired, counseled, conspired with, or otherwise procured the other person to commit it.

The defendant is guilty of a crime, however, only if the other person commits a crime. The defendant is not liable criminally for aiding, advising, hiring, counseling, conspiring, or otherwise procuring the commission of a crime, unless some crime (including an attempt) is actually committed.

So first the prosecutor has to prove that there was a lawful arrest. Was the defendant arrested or merely detained?

The arresting officer testified that he grabbed the defendant from behind, by the back of the shirt collar, hauled him backwards, away from the bus, and said, "You're under arrest." The defendant testifies that he heard nothing, but squirmed around to see who was yanking on him. He immediately raised his hands when he saw the officer over his shoulder, but said nothing. Still, both the officer and the defendant agree that there was an arrest. This, despite the fact that the defendant had not been booked (the officer was dragging him back to the squad car to complete the arrest procedure by booking him), and despite the fact that the arresting officer testified that he hadn't really decided what he was going to charge the arrestee with.

The defendant and the arresting officer also both agree that there was an escape. The defendant said that he had nothing to do with it, that he did not aid, abet, or encourage it in any way. Someone grabbed him and dragged him out of there before he even knew what was happening. In spite of the prosectuor's insinuations to the contrary, the defendant denies that he ever "advised, counseled, hired or conspired" with anyone to 'unarrest' him. Nor does the arresting officer claim any different. Nor could any of the half-dozen witnesses called by the prosecution.

So how can the defendant be accused of "intentionally" aiding in the escape? According to the prosecutor, the defendant intentionally went limp. His going limp "bought time" for the black bloc to come in and drag him away. His going limp provided the opportunity for people to grab him by the legs. He "intentionally" went limp, so he "intentionally" aided in the escape. And the prosecutor made sure that the jury instructions were writtten so that the jury could interpret the defendant's intentionally going limp as the 'intentionality' required in the law about being "guilty of the crimes committed by another person."

In my opinion, it is not the jury that is responsible for this travesty of justice: they worked with the instructions they were given. The people responsible for this outlandish result are the prosecutor who twisted the wording of the jury instructions to get the result he wanted, and the judge who approved such wording on the supposition that "the jury might think" that there was a conspiracy to unarrest the defendant. (The defendant was not charged with conspiracy.) And perhaps also the defense lawyer, who did not raise complete unmitigated hell while these twisted instructions were being devised. Perhaps he intended to give the prosecutor enough rope to hang himself with -- so that the case would be reversed on appeal. It just seemed to me that the defense lawyer said very little during the writing of the jury instructions and the prosecutor had it all his own way in the end -- even the judge stopped opposing him and he got the wording he wanted, with all its attendant ambiguity.

Finally, there is the question of whether the escape was a felony, and this is the issue that matters most to the defendant. For one who is convicted of a felony in a jury trial is a felon for life. There are certain professions from which he will be forever barred, certain privileges that will be forever denied him.

In order to be a felony escape, the crime for which the defendant was arrested must itself be a felony. The arresting officer himself has testified that he didn't know exactly what he was going to charge the defendant with. He testified that he had seen a glint of metal and believed that the defendant had a knife in his hand. He thought he had seen the man making a jabbing motion at the bus tires and had assumed that he was trying to slash the bus tires. (The defendant said that he had a dry-erase marker and was writing on the bus with something that was the equivalent of sidewalk chalk.)

The arresting officer testified that he intended to arrest the man on charges of "Criminal Damage to Property." But was that a felony or a misdemeanor? If the amount of damage is over $1,000, then it is a felony. If it is under $1,000 it is a misdemeanor. Grafitti that you can "wipe off with a tissue," as the prosecutor put it, would certainly be a misdemeanor.

Had thes bus tires actually been damaged, it would certainly have cost over $1,000 to repair them. But did the arresting officer know that? Did he have reason to know it? What does a police officer know about the price of bus tires anyway?

The defense lawyer objected to this line of questioning five times on the basis that the officer had no way of knowing how much the tires were worth, especially since the officer had not inspected them to take mileage and tread wear into account. The judge sustained the objection all five times.

The prosecutor then changed his line of questioning, asking the officer if he had, in the course of his work, ever seen receipts "come across his desk" for tires "like the ones" on the bus. The officer said that he had, and yes, the cost was certainly over $1,000. The defense lawyer objected three more times, but this time the judge overruled him. The argument that the arresting officer had some idea how much bus tires cost because he had seen receipts for tires "like the ones" on the bus, was allowed to stand. (Whether the officer had really ever seen such a receipt in all his days is another matter.) The prosecutor had what he wanted -- a plausible line of reasoning that the defendant had been arrested on a felony charge.

This is how the state prosecutor got a felony escape conviction on a man who had done nothing but go limp after being arrested. The jury found the same man not guilty of aiding and abetting the assault of an officer. And the misdemeanor charge? That is the charge that the defendant offered to plead guilty to in the first place. Going limp is a form of passive resistance; it actually is an obstruction of the arrest process. The defendant does not deny this. He takes full responsibility for the decision to go limp. (As well as for writing on the bus.) But passive resistance is a misdemeanor (and so is most grafitti). A felony conviction in such a case cannot be an act of justice.

The defendant intends to appeal. It is to be hoped that a higher court succeeds in rendering a just verdict where the lower court has failed.

Margaret

Courtwatch Working Group

Community RNC Arrestees Support Structure (CRASS)

[The Courtwatch Working Group is one of the many working groups in CRASS, the Community RNC Arrestee Support Structure.

CRASS is committed to providing multifaceted support to those arrested during the 2008 Republican National Convention to ensure that all interested arrestees have the support necessary to fight their charges and stand up for free speech. CRASS has a travel fund available to aid arrestees in returning to the Twin Cities for their court dates and is also dedicated to aiding and facilitating civil suits.

For resources, more information about how to get involved in various ways, or to donate to our work, check out