Wednesday, February 28, 2018

Judge Says Valero Defendants 'Low Priority' Next to Murderers, Rapists and Robbers

Katherine Hanson, Olivia Ramirez and Erick Barnett wait for the wheels of justice to turn in Memphis

Judge Bobby Carter signaled that he would like to see prosecutors settle Class C misdemeanor cases against four environmental activists, calling the cases a “low priority…next to my whole jail full of murderers, rapists, and robbers.”

Nonetheless, the remaining defendants from a dramatic action opposing the Diamond Oil Pipeline on MLK Day in 2017 did not get heard today -- even though it was the seventh court appearance for four of seven persons who had chained themselves together through concrete-filled barrels to defend water over oil.

The Shelby County Criminal Court Division III judge also decided not to entertain various motions from defense attorneys as that could influence any possible negotiations about a settlement, he said.  

The four were scheduled to go on trial beginning Jan. 22; however, after spending two days waiting around 201 Poplar, on Jan. 23 Carter bumped the trial date to April 30, citing an “in-custody aggravated rape” case that he deemed more important to be heard.

At that time Carter also set Feb. 28 as a motion hearing date and required the four defendants – one from Missouri, two from Oklahoma and one from Memphis – to return to court. Carter today indicated he had thought better of hearing any motions, particularly about jury instructions, until the time of the trial and after he had heard the proof and arguments put on by prosecutors and defense counsel.

“Here’s the thing,” Carter told the four defense attorneys. “It’s clear your clients have an absolute right to a jury trial. As far as they are concerned it’s a very serious, very weighty matter. But in proper perspective, next to my whole jail full of murderers, rapists, robberies and things that I have to get gone, it’s going to be a lower priority in scheduling.

“I don’t mean to diminish the seriousness of it as to each of them,” Carter continued. “These are matters that they are entitled to full and fair consideration, and we will do that -- if we have to.”

Calling themselves water protectors and representing Arkansas Rising, the defendants were objecting to the Diamond Oil Pipeline, which is to carry light sweet crude 440 miles from Cushing, Oklahoma, to the Valero Refinery on the banks of the Mississippi River in Memphis.
Olivia Ramirez: Defending Earth and water
Photo by Hive Swarm Media

The defendants were initially charged with obstructing a highway or other passageway; disorderly conduct, and criminal trespass. Disorderly and trespass charges were dropped last year.  

The “obstructing a highway or passageway” charge is often used by police along with “disorderly conduct” against political protesters or persons who film police. 

Prosecutors in October proposed a settlement “offer” that each of them would pay $6,000, calling it restitution or repayment of the city’s decision to massively deploy police and fire equipment and personnel. Last month, that amount dropped to $650 each, but defendants have maintained they are not guilty and do not want to pay money simply to make the charges go away. Three other defendants last year had paid costs and pleaded out to stop the court appearances and uncertainty over the outcome.  

Five other persons were arrested while walking or standing on the sidewalks outside Valero, and those cases were dismissed last year. The five included Missouri resident Rachel Gay, an independent journalist who was filming the events of the day, and Paul Garner, a Memphis resident who is organizing director of the Mid-South Peace and Justice Center and who was recording police on his cell phone that day as an observer. 

Counting their initial appearance after they were arrested on Jan. 16, 2017, yesterday’s appearance was the seventh trek to Shelby County courts in connection with the Class C misdemeanor, which is the lowest possible criminal charge and which rarely goes to trial. The other court dates in 2017 were Feb. 15; May 2; October 5, and November 2.

Should there be a jury trial, however, defense attorneys believe it could take three days. That’s not only time from the lives of the defendants and the attorneys, who are all working pro bono, but of court personnel and Shelby County citizens to serve as jurors. Further, it clogs the pipeline with cases that Judge Carter clearly does not believe he has time to hear.

Defense attorneys expect prosecutors will argue that defendants did not have a right to be there because they did not have a permit.

The defense argument is essentially the First Amendment.

“Because this is such a low level offense, it never goes to trial,” said defense attorney Josie Holland. “It usually settles out. Either the state gets tired of trying to prosecute it, or the person who is facing the charge decides to pay a fine and go on with their lives.  There’s not a lot of case law or precedent about obstruction of a highway or passageway.

“No one has challenged the constitutionality of it on its face.”

That is, until now, in Memphis.

Links to our previous stories on these cases:

"DA Pushes Misdemeanor Defendant-Protesters toward Jury Trial in Memphis"

“Valero Cases Dwindle as Judges Cite First Amendment”
“Cops Bust a Journalist, Chase One into the Bushes on MLK Day 2017”

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