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No Pepper Spray on Nonviolent Protesters

 (created 3.10.05)

Report on March 3, 2005, Hearing 

A hearing took place March 3 on our (plaintiffs') motion to reconsider the court's order ruling out punitive damages and our motion for a more in-depth jury selection process.

Judge Susan Illston didn't rule on the motions on the hearing day, but she said she's inclined to deny them but to allow expanded time questioning prospective jurors.

The judge rejected a suggestion by the defense to show one of the police torture videos to the prospective jury panel during juror selection. That would have given the defense a chance to spot and reject from the jury all those who showed any emotional or human reaction to the horrific police actions shown in the video.

The judge accepted our lawyer Tony Serra's suggestion to have both sides present abbreviated 15 minute statements to the jury pool to let them know what the case is about, but no photos, videos or other evidence would be allowed. There would still be full opening statements presented after the jury is chosen and the trial begins. Jury selection would probably take up all of the first day.

The judge wants both sides to think about whether to tell the jury the case has been to trial before. Doing so might give the jury a clue that they should come to unanimity since it's been tried before and has taken so long, since 1997.

Commenting on the passionate language of his formal motion for revised order, our lead counsel Dennis Cunningham told the judge, "My colleagues cringed at heat of my language." The judge replied, "The Court was struck by that as well."*  

Dennis went on to argue eloquently about why the judge should recant improper statements of fact in her order ruling out punitive damages, and why we'd like the First Amendment claim back in the case. By her language in the order, the judge may have inadvertently removed all the history and context from the case by making the motives of the protesters and the police irrelevant. 

Allowing revival of the First Amendment claim would make the context relevant again. But the defense was quick to point out that the First Amendment claim was irrevocably dropped by stipulation of our previous lawyers in 1997. With that approach blocked, Dennis argued for the judge to amend her order to delete improper and erroneous statements of fact that she cited as the basis for ruling out punitive damages. He said if she did that it could allow the history and context to remain relevant.

The judge took both our motions under submission, and will rule on them later after considering the oral arguments and doing further legal research.

Defense counsel Nancy Delaney told the judge that she intends to file a motion to disqualify our police practices expert witness, ex-police chief Anthony V. Bouza. It's no surprise the defense wants him out, because he wrote in a report after reviewing the evidence in our case that:

"I expect to testify that the force used in these three cases -- swabbing and/or spraying pepper spray -- was inappropriate and in violation of the laws regulating the use of force, the manufacturer's own instructions as to the use of the chemical agent and the police jurisdictions (both) own regulations as to the level and relevance of the force used.

"It is axiomatic that torture may not be employed to secure compliance. A perfectly usable strategy -- grinders -- was available and its avoidance points to the police need to punish the demonstrators extra-judicially."

The judge says she thinks the trial length will be about the same as before, about two weeks, but possibly with some extra time for expert testimony. The judge has another trial before ours which may go overtime, so there's a small chance we may not start jury selection on April 11, but from one day up to a week later. The previous case may settle, and if so we'll know well in advance that our trial will start on time. But if that case goes to trial we'll just have to wait and see.

The next pre-trial hearing is set for Tuesday, March 29, 2005.

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* You can read the full text of the motions online at:

Plaintiffs' Motion for Revised Order (pdf file)

Plaintiffs' Motion for Expanded Voir Dire (pdf file)


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