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James T. KeaneApril 03, 2012

This morning in my class at the Jesuit School of Theology on “Jesuit Priesthood: Theory and Praxis,” our opening prayer included the following verses from Psalm 142: “When my spirit grows faint within me,/You know my way;/ In the path where I walk, /they have hidden a trap for me.”

            Only an hour earlier, in a far different locale, I had watched while a fellow Jesuit and classmate of mine, Joseph Hoover, S.J., was found guilty by a jury of his peers in a courtroom at the Wiley Manuel Courthouse in Oakland, CA, for the crime of “obstructing a public thoroughfare.”  His alleged (I suppose now confirmed) sin was that he did not get out of the way quickly enough at an Occupy Oakland rally and march two months ago in Oakland, Calif, when a charging line of Oakland Police Department officers in riot gear ran at him.  That the arresting officer had quite clearly beaten Joe with his baton (the officer who hit him looked Joe and the jury in the face and perjured himself—I know his testimony to be a lie, since I saw the bruises myself the night I picked Joe up from jail) seemed to sway the jury from convicting Joe of a second charge: obstructing a law enforcement officer in the performance of his duties.  That charge, it turns out, cannot be considered proved if the arresting officer uses excessive force. Joe himself took the stand and testified he had no intention of obstructing anyone—that he was an unarmed man in a Roman collar walking away from the police—but it made no difference as to the first charge, and Joe was found guilty.  Of that, at least.

            Joe should have been found innocent of all charges—if he was guilty, then so am I, and a number of other peers who have participated in actions with Occupy Cal and Occupy Oakland over the past year, in the name of solidarity with the protests and civil disobedience; and I could name a dozen of my classmates who participated to one degree or another—but he was also unlucky.  On the day of his arrest, he donned his clerical shirt, climbed on his bike, and rode from Holy Hill down to Oakland to show his solidarity with the 99 percent—those whom, in another tradition, are called the anawim.  He happened to run into an aggressive and violent officer on a violent day, and as a result, the unjustified attack on his person was followed by three days in the Alameda County Jail.  He was released to us “on his own recognizance,” a process that took the judge two minutes to approve and the sheriffs at the jail seven hours to carry out.  That experience has been followed by two months of seemingly endless court appearances, or at least ten; one thing I will tell you is that I now know four of the bailiffs by name, and I am not even the one who was arrested. 

            Joe has had no criminal record; Joe was, according even to the arresting officer, completely compliant with the authorities at and after his arrest.  But now he’s guilty, and next week we’ll go back for sentencing. 

            The whole experience left me angry but educated in new ways about the justice system.  Below are some of my own reflections from that experience.  I speak only for myself, not for this magazine nor for Joe nor for the Society of Jesus.

  1. 1.    The ladder of the law has a top and a bottom.  Justice is blind, but the legal system is rigged in favor of the wealthy.  Don’t think so?  Two misdemeanor charges for Joe required ten court appearances over sixty days.  Joe is a seminarian, and so had to miss some classes and apostolic work (and, the lucky devil, one Jesuit “community night” while he was jailed), so he never had to call in sick from work or arrange for day care or explain why he had been missing for three days.  Nor did he have to board three or four buses to get to the courthouse.  He, like me, is one of the privileged few.  There were plenty—hundreds—at the courthouse in our every visit who suffered a different fate, regardless of their guilt.  What if you’re innocent—but by the time you’re found innocent, you’ve skipped nine days of work?  Might that affect your job performance review?  Might you be in danger of losing your job or the respect of your colleagues?  And might that affect your decision to accept a plea bargain as a result?
  2. 2.    Justice is not should not be vengeance.  Are you related to a law enforcement officer, or a district attorney, or a lawyer or judge of any stripe?  If so, ask that person the last time it was necessary to bring a charge of “obstructing a public thoroughfare” to trial—to call sixty jurors, to impanel twelve, to spend a week in court, all to find a man guilty of not moving out of the way of a skirmish line of baton-swinging police fast enough.  Joe was made an example and a symbol by the police and the district attorney; he was instrumentalized as a public statement that free and peaceful assembly, while guaranteed by the First Amendment to the nation’s constitution, is verboten in Occupied Oakland.  The police in Oakland have been made to look ridiculous by their own violent and illegal actions over the past six months, and now the Occupiers will be made to pay…until the day the Oakland Police Department is taken into receivership.
  3. 3.    Occupy is just a four- letter word.  I heard it used in this trial as a noun, a verb, an adjective, and almost every time as a slur.  The prosecutor, in her closing argument, used “Occupy” perhaps thirty or forty times.  Why?  Because “those people” are easily bracketed as the unwashed masses demanding anarchy and/or a free handout, and they are, in the legal system, nonpersons—or threats.  I myself witnessed a bailiff (who was otherwise, I admit, a perfect gentleman over five days of legal proceedings) look out at the audience one day and loudly call for backup, on the grounds that “I have fifteen or so Occupiers here.”  The audience was composed of Jesuit seminarians, theology students from Berkeley, interested lawyers, idealistic supporters, and one dismissed juror who thought this was worth sticking around to watch as long as he had the day off work anyway.  I wouldn’t be on a softball team with those folks, much less storm a courtroom with them.  But the jury heard it; this is an Occupy trial.  Not a police brutality trial, not an exercise in overreach by the DA; not state vengeance disguised as justice; an Occupy trial
  4. 4.    Folks take pride in the strangest things. I am proud of all those from the Jesuit School of Theology--and their names are legion, for they were many--who came to the courtroom to support Joe and to give witness against legal and economic injustice.  I am proud of his fellow protestors—many of them wounded, tired, or facing charges themselves—who showed up to give their support.  Most of all, I am proud of Joe.  Maybe they’ll give him time served, for the three days he spent in Glenn Dyer Jail.  Maybe one day his conviction could be expunged from his record.  Maybe Occupy means nothing.  But maybe not.  And maybe one day justice will be done, though the heavens fall.“When my spirit grows faint within me, You know my way; In the path where I walk, they have hidden a trap for me.  Look and see, there is no one at my right hand; no one is concerned for me.”
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Paul Ford
11 years 5 months ago
I'm with Dave Pasinski on this. Thanks for speaking out so eloquently.
Bill Collier
11 years 5 months ago
While Joseph Hoover does appear to have been treated unfairly by the legal system, I don't think that he "had to miss some ... apostolic work." His three days in the city jail, and his multiple appearances in court, were no doubt witness for justice, fairness, and Christ that didn't go unnoticed.
Claire Bangasser
11 years 5 months ago
Last night, at our small CLC community meeting, we shared the line that had touched us the most in Sunday's gospel. Most of us mentioned Gethsemane. We also talked of Jesus's death, and of the death of those people who in fact are following Jesus's steps, like Oscar Romero, the 6 Jesuits in El Salvador (along with their cook and her daughter), Ita Ford and her three friends... etc.
We talked of our chances to feel asked to lead such lives... Well, it seemed that Fr Joseph Hoover, SJ has done just that. The same goes for a friend of mine who demonstrates in front of the SOA every November.
Some of us seem to be at the right place at the right time to do the right thing. I admire them very very much.
Thank you for the story. 
Mike Evans
11 years 5 months ago
From pepper spray and tear gas to water cannon and baton squads determined to make people disperse - has America devolved to the point of police repression that is intolerable? Amazing that the police were not quick to recognize that the so-called protestor was a priest. More amazing that they stubbornly sought to charge him with obstruction of justice and let him tell his story. Then a judge finds him guilty rather than dismissing the bogus charges. It seems our societal attitudes have turned decidedly nasty and no demonstrator, non-violent or simply caught up in a crowd, is going to be safe from being either beaten or arrested. And the silence of the lambs continues - not a peep from our religious leaders or the priest's own bishop in protest.
Winifred Holloway
11 years 5 months ago
It is timely that you write this post today, a day after SCOTUS ruled 5-4 that the police and jail authorities did not violate the civil rights of a man who spent 7 days in jail and was strip searched several times.  Arrested for failure to pay a traffic fine!  He had in fact paid the fine, but the computer system didn't register it.  He had a hard copy of his receipt in the trunk of his car, but the arresting officer was not to be deterred.  Seriously, 7 days in jail and an assault on his dignity for a non-crime?  And our Supremes were good with that? 
Vince Killoran
11 years 5 months ago
I appreciate the care and detail of Chris Boscia's comments. 

I do want to push back on one thing he wrote, i.e., "While we have free speech in this country, there can be limits placed on the time, place, and manner of that speech."

In recent years there has been an increasing narrowing of the "time, place, and manner." Whether it is a national political convention or a meeting of an international organization, protesters have been relegated to "demonstration areas" far from the event, often in fenced off areas with severe restrictions placed on their movements.  Free speech is rendered virtually meaningless.
david power
11 years 5 months ago

Imagine somebody going to one of these protests and getting a beating etc and never telling anybody about it?That would be an amazing person.
Has Joe forgiven the police officer in question?Has he prayed for him.
There are many Biblical parallels one can find and I posted one above from a Jewish Prophet.  
Sara Damewood
11 years 5 months ago
Thanks for this brave article!
Bill Mazzella
11 years 5 months ago
Great to see followers of Christ advocate for the downtrodden. Euge!
David Pasinski
11 years 5 months ago
This column and issue are healthier for teh contribution of Chris Boscia -thank you!
As someone who has sat through these trials, I know the system has rarely found anyone "not guilty."Ii'm not sure waht to make of that, but I support what Joe Hoover did and know that our most famoud American apostle of non-violent protest -Martin Luther King, Jr. - whose martyrdom we obseerve today, must bless you...
Chris Boscia
11 years 5 months ago
Mr. Killoran,
I agree that "time, place, and manner" have been narrowed in recent years.  However, I disagree that the narrowing has rendered free speech "virtually meaningless." 

Our First Amendment is as strong as ever, even protecting vile and despicable speech made in the name of a religious community called the Westboro Baptist Church:

In the Westboro case and others, a narrowed time, place, and manner restriction ensured that families could bury their beloved sons and daughters free from the insensitive taunts of zealots.  That's a sacrifice to free speech that I'm willing to accept, although I see your point that it can push some free speech to the margins, or at least to the sidewalk 1000 feet away.

Mr. Keane, I don't doubt that we disagree.  But if your original post was an invitation to dialogue, my response was merely a request for you to "prove it up," as they say in court, i.e. support your conclusions with facts or reasonable inferences from facts.  

Your friend Mr. Hoover was not convicted for violating Penal Code Section 148(a)(1)-resisting, obstructing, or delaying a peace officer.  And you are correct that it's likely because a legal defense to PC 148(a)(1) is that the officer used excessive force in his dealings with Mr. Hoover.  So isn't that justice done, that Mr. Hoover was acquitted on the 148(a)(1) precisely because the jurors followed their oaths, upheld the law, and found true facts that proved the officer did use excessive force? 

However, excessive force is not a defense to the separate crime of obstructing a roadway.  And the fact that the officer may have perjured himself about the beating or not could have no bearing on whether or not the jury should have convicted Mr. Hoover on the obstructing the roadway charge.  That makes sense, doesn't it?  The officer could certainly have lied about the beating, but been telling the truth about the obstruction.  Or maybe there was independent evidence of the obstruction that didn't need the officer's testimony.  Jurors can rely on many forms of evidence when rendering a verdict.  Again, the beauty of our system...

So I'm left with the conclusion that you believe the legal process didn't work because the jury found facts of obstruction to be true that you feel should be disregarded because of Mr. Hoover's non-violence, arrest, imprisonment, and high bail.  Jurors are forbidden from considering those factors precisely because they are not relevant to whether or not Mr. Hoover obstructed a roadway in violation of the law.

Mr. Keane, you are clearly bright and passionate.  And I am so grateful that you are responding to God's call to be a member of the Society of Jesus.  Some of my best friends are Jesuits and my life has been irrevocably shaped for the better by many Jesuits, including friends like Jim Martin and Drew Christiansen. 

I welcome your reasoned critique of our criminal justice system and will look forward to future conclusions on this topic supported by fact.  In the meantime, when you get back to the province and Bay Area, look me up.  I'd be happy to have you join me for a few days in Court.

11 years 5 months ago
I would like to thank Chris Boscia for adding a reasonable counterbalance to Fr. Keane's article.  The freedom of speech guarantees our right to speak out against any perceived injustices without any unwarranted government intrusion and the freedom of assembly guarantees the right of like minded individuals to gather and organize to further advance their cause.  While I respect the right of the OWS Movement to peacefully assemble and protest, I object to the deeply held belief by some in the movement that they have a right to aggessively protest to point of inviting avoidable confrontations with the police.  I have visited the OWS encampment in Zuccotti Park and witnessed the decision by some to intentionally confront and provoke the police.  While these rabble rousers may not represent the whole movement, they cause tremendous damage to the message many would like project to the world.  There are times for civilians to risk their freedom, their livelihood and even their lives to uphold the dignity of the oppressed and the freedom denied others in the world.  This OWS Movement is not one of them.  

John Campbell
11 years 5 months ago
Might Hoover SJ have some other attribute, in addition to collar and participation in the event, that attracted special attention by the police?
JR Cosgrove
11 years 5 months ago
If the Oakland police force has such a dysfunctional past history, then couldn't one say that the OWS in Oakland was deliberately asking for a confrontation that might turn violent.  Also that anyone who attended these assemblies in support of OWS was an accomplice in any confrontation and violence that might ensue.
Vince Killoran
11 years 5 months ago
Chris at #19: "Our First Amendment is as strong as ever, even protecting vile and despicable speech made in the name of a religious community called the Westboro Baptist Church:"

I agree that it protects "vile and despicable speech" but the everyday the ability of citizens to gain reasonable access to the public square and engage in free and open debate has been limited not only by cordoning off protests but access to the airwaves has been constricted by  the FCC and Big Media.  In addition access to our elected representatives by lobbyists and moneyed interests (thank you CITIZENS UNITED).

Free speech does not thrive in this environment.  One of the welcomed aspects of the Occupied Movement has been the emergence of fresh voices in the public realm. 
John Donahue
11 years 5 months ago
Joe Hoover has been in my class at Berkeley this past semester on Biblical Foundations of Social Justice and I admire his dedication and commitments.  One of the most frequent statements of the Jewish prophets concerns the perversion of Justice by the strong against the week.  A sample from the prophet Micah (c. 730 B.C.) indicates this as well as repeating the adage that la plus change, le mem chose or in the words of Ecclesiastes, "there is nothing new under the son."  Times change, injustice perdures. 

Hear this, you rulers of the house of Jacob
and chiefs of the house of Israel,
who abhor justice
and pervert all equity,
10 who build Zion with blood
and Jerusalem with wrong!
David Pasinski
11 years 5 months ago
Thank you for this excellent- and somewhat daring-post. You touch on themes that many who have been in non-violent resistance know - the power of protest, non-violent resistance, and the "imbalances" (for the kindest word) in our justice system. May this account be parsed for a meditation and impel many of us who jawbone in these blogs to a deeper and riskier and more faithful witness with the anawim, wherever we find them.
11 years 5 months ago
Perfect material for reflection during this Holy Week 2012!   Remember Jesus' warnings?!....." they will arrest you and persecute you, delivering you up to the synagogues and prisons, dragging you before kings and governors, for my my name's sake. It shall lead to your bearing witness......(Luke 21:12-13)  "If the world hates you, know that it has hated me before you...."(John 15:18)....if they have persecuted me, they will persecute  you also...John 15:20

Thank you for posting Joseph Hoover's  ,S.J. case.   Somehow  his experience makes Jesus' Passion more real and near (for me).
Carolyn Disco
11 years 5 months ago
I heard from a friend who became a lawyer and handles cases with police lying at trial - testilying, it is called.

''That the arresting officer had quite clearly beaten Joe with his baton (the officer who hit him looked Joe and the jury in the face and perjured himself—I know his testimony to be a lie, since I saw the bruises myself the night I picked Joe up from jail''

Who dare name the officer and file a charge of perjury? or send this thread to a local newspaper and ask them to cover it? or do something? What can be done besides nothing?

Any lawyers on this blog? Or is their answer nothing can be done? Or would the priest become a target for local police in retaliation?
Chris Boscia
11 years 5 months ago
Dear Mr. Keane,
I am very troubled by your post, as a Catholic and as a prosecutor who has sworn an oath to uphold the Constitution of the United States and the Constitution and laws of the State of California. 

Mr. Hoover, S.J., has not "sinned," however he has violated the law.  And it seems to me that our legal process, which you indict, has worked in his case. 

First, after Mr. Hoover was accused, he was offered competent legal representation through the Alameda County Public Defender, if he could not afford his own lawyer.  Even if the Jesuits could afford Mr. Hoover an attorney, that attorney is constitutionally required to be competent.  Our system guarantees that level of protection for Mr. Hoover and all those who are accused. 

Second, Mr. Hoover maintained his innocence and chose to be tried by a jury of his peers.  The right to trial by jury is another bedrock of our system, preventing "state vengeance disguised as justice."  It's not the prosecutor or the judge or "the aggressive and violent officer" who convicted Mr. Hoover, but a jury of Mr. Hoover's peers randomly selected and thoroughly vetted by both counsel.  Those 12 citizens listened to the testimony, applied the law as was given to them by the judge, and found that Mr. Hoover in fact obstructed a public thoroughfare.  If you disagree with the law, register to vote here, pick up the phone, and call a legislator to have it repealed.

Third, Mr. Hoover had an absolute constitutional right not to testify.  And if he chose to exercise that right, the jury was forbidden to use that fact against him.  Mr. Hoover chose to waive his right and tell his side of the story.  Again, another constitutional right guaranteed to Mr. Hoover through our criminal justice system.  He had the right to tell or not tell his story, but he had no obligation to do anything.  The burden was all on the prosecutor to prove the case "beyond a reasonable doubt."

What could the alternative be, if not a trial by peers, with competent counsel, and an inability to be compelled to testify against yourself?  How else could justice be done in your world, Mr. Keane, than to force the government to prove your guilt beyond a reasonable doubt and put no burden on you, the accused?

As for your conclusions, I don't disagree that the poor are adversely affected by the number of appearances that must be made in criminal cases.  However, what is the alternative?  Those court appearances ensure that Mr. Hoover's counsel has enough time to investigate the case and mount a defense, if he chooses.  Mr. Hoover and every misdemeanor criminal defendant in California had the right to a speedy trial within 30 days.  If you want a quick trial, you can get one, rich or poor.  Mr. Hoover had 10 court appearances because he waived his right to a speedy trial to give his defense attorney more time.  Again, our system allows for speedy justice or drawn our justice, whether you are rich or poor.  There are plenty of problems with our system, but the number of court appearances should not rank high on the list.

You are correct that the 58 elected District Attorneys in California exercise discretion in which cases they choose to prosecute.  And if you disagree with the DA's exercise, you can surely campaign against her in the next election.  But do you really think Nancy O'Malley believes there should be no free speech in Oakland?  Or that your friend should be made to suffer for police malfeasance in other unrelated cases?  What is your evidence for those conclusions?  While we have free speech in this country, there can be limits placed on the time, place, and manner of that speech.  Mr. Hoover has every right to voice his political opinions.  He doesn't have a right to do so while blocking an intersection that other citizens, rich and poor alike, use to travel.  Sometimes rights conflict.  But there's no evidence of a grand conspiracy as you say.

You criticize the actions and words of the prosecutor and bailiff for how they characterize "Occupy" protestors.  Remember what a bailiff's concern is in a courtroom-the protection of everyone.  Terribly violent things have occurred in courtrooms.  Without bailiffs, there would be no protection for anyone.  Also, have you seen yesterday's San Francisco Chronicle?  Occupy individuals took over a diocesan building and stockpiled bricks and chairs on the roof.  Would you say a bailiff could draw a reasonable conclusion that those bricks and chairs could have been used as weapons by the people occupying that building?  Is it possible that not all Occupy protestors have such immaculate motives as you and your friend?  How did the bailiff know whether the people watching your friend's trial were peaceful, as you state, or prone to violence?  The bailiff's behavior was reasonable, given the circumstances which you conveniently ignore. 

You have every right to be proud of Mr. Hoover.  He stood up for what he believed in and suffered consequences as a result.  But please don't attack the system for failing to do justice to Mr. Hoover.  He was treated like anyone else who commits a crime.  He was given a fair trial, with competent counsel, and he was convicted by a jury of his peers.  I suspect his sentence will reflect his lack of a criminal history and the minor nature of his offense.

I am proud to be a prosecutor and believe that I try to do justice every day for defendants and victims alike.  And I believe my Christian, Catholic faith is consistent with my work.  Your criticisms and conclusions about our justice system trouble me for their lack of perspective and charity. 
ed gleason
11 years 5 months ago
My wife and I walked in OWS protests in San Francisco a short 12 miles from Oakland and we expected no violence. no police harassment and we were escorted by them not bullied. .
While Oakland has attracted anarchists who have attacked police and property on other protests before, the response of police in SF and Oakland seems at least a  continent apart. Mr. Boscia says " But please don't attack the system for failing to do justice to Mr. Hoover".
Why not attack the system in Oakland? ? SF police are better led, better trained, not hostile to the residents. ....Oakland? think Afghanistan.
Jim McCrea
11 years 5 months ago
David Smith @ 17:  that was about as a succinct definition of a police state as I have ever read!

As one who lives in the Oakland area, I know how problemmatic the Oakland police are!  Here's just a wee peek at the kind of trouble they have caused in the past -  http://www.mercurynews.com/breaking-news/ci_19863456    and still seem to have: http://dailybail.com/home/update-occupy-protester-shot-by-oakland-police-is-scott-olse.html.  And this: http://colorlines.com/archives/2011/08/deadly_secrets_how_california_law_has_shielded_oakland_police_violence.html

The Oakland police department faces the impending possibility of a federal takeover — the result of several missed deadlines in a nine-year court-ordered reform effort.  The violent Occupy Oakland clashes have also placed Oakland under nationwide scrutiny, renewed concerns about excessive force and solidified the city’s soiled reputation as a place where protesters and criminals, and even sometimes the police, run amok. The department is still investigating the case of Scott Olsen, an Iraq War veteran whose skull was fractured on Oct. 25 after he was hit by a projectile allegedly fired by the police at the Occupy encampment. Some other accusations of misconduct have prompted lawsuits.
McFaddyen O'Flaherty-McGinnis
11 years 5 months ago
Chris Boscia has made two instructive interventions upon a very contentious topic. His tone, as well as his obvious good will toward the Society of Jesus, is to be commended. He says that he is writing “as a Catholic and a prosecutor.” I will leave the issue of his faith aside and focus on his prosecutorial role.
Mr. Boscia is a sworn public official and a deputy district attorney for the County of Santa Clara in California. This would be of no importance if he were responding to a book review in this magazine. Of course, this is not a book review. While Mr. Keane is responsible for the content of his post – which deals with an open legal case – Mr. Boscia is responsible for his decision to respond to Mr. Keane upon that same case.
It is interesting, then, to note that Mr. Boscia fails to provide his exact title and position. He alludes to it when he invokes the authority of his role as a prosecutor, his oath to uphold the laws of the State of California, and in his invitation to Mr. Keane to join him ''for a few days in Court'' (a infelicitous turn of phrase for a prosecutor to be using to a journalist, I'm afraid).
But his precise position with the State makes all the difference, and I wonder if this is an intentional omission so to allow him the cover that the ambiguity of writing as both ''Catholic and a prosecutor'' provides. As they stand, his comments reside in a no-man’s land between private citizen and public official.
For that reason, I would like to pose several questions to clear up any ambiguity as to whether Mr. Boscia is a legally interested party to this case, and is in fact able – because of his public responsibilities – to use the both/and perspective to which he lays claim.
1) Are deputy district attorneys in the state of California allowed to comment publicly (in print or elsewhere) on legal matters in other counties?
2) If so, are they allowed to comment publicly on legal matters in other counties with which they might have some disagreement, either procedural or substantive?
3) Did Mr. Boscia obtain permission to submit his post with anyone in the Santa Clara district attorney’s office?
4) Is the knowledge he shows of the timeline of Mr. Hoover’s case gleaned entirely from records available to the public? Has any part of this chronology been assembled with the assistance of information gained in Mr. Boscia’s official capacity as a deputy district attorney?
5) Or – just to address a more charitable possibility – are Mr. Boscia’s comments here only tangentially related to Mr. Hoover’s case, perhaps using it merely as a civic-minded defense of the “beauty” of the criminal justice system in general? And if so, is this (as my first four questions are obviously driving at) something that Mr. Boscia himself should be doing?
The people of Alameda County have had their say through their elected district attorney as to the charges against Mr. Hoover. District Attorney O’Malley has had ample opportunity to make this case in the court. It is not necessary, nor is it desirable, for the State of California to further flex its already considerable muscle against Mr. Hoover – particularly prior to his sentencing – through any of its officials, Catholic or not, in the court of public opinion.
Because of his position, and not his bona fides, Mr. Boscia’s comments are very problematic. I hope he will have the chance to respond to some of these questions and doubts soon.
David DeCosse
11 years 5 months ago
I think Chris Boscia makes a very important point often overlooked by Catholics on left and right: That the civil law, in all its complex workings, deserves a very high degree of respect. So, for instance, it's striking to consider that MLK Jr in talking about nonviolence spoke of the need for the readiness to accept the punishment of the law, even of a law with which one disagrees; he argued for this out of respect for the law itself, as presumptively a means of justice and order without which we cannot live out our lives fully." I wonder of late if Catholicism has become too enamored of and too quick to draw on Aquinas to the end that an 'unjust law is no law at all.' Of course, some laws do perpetuate injustice. But, far more often (at least in our society), laws that may have a dimension of injustice also have many dimensions of justice. I think we need to pay more attention to this complex moral quality of law."
McFaddyen O'Flaherty-McGinnis
11 years 5 months ago
@David Smith: ''Maybe from some extremely narrow and contentious legal point of view, but I hope employees of the state are not generally forbidden to speak spontaneously on matters in which they have competence.  I'm sure they're not.''

1) I like how you dismiss my objection as originating from a ''contentious legal point of view,” as if we are discussing anything but a specific, and quite contentious, legal matter initiated by one of Mr. Boscia’s peers. This is not a querulous objection. Mr. Boscia may be called upon to prosecute these types of cases in the future; Occupy cases are occurring not only in Alameda County. Would his comments here disqualify him from fulfilling his official duties, if a defense attorney were to happen upon them?

He walks an extremely narrow line here in his comments, the second of which concludes with a direct reference to his professional duties as a prosecutor in his invitation to Mr. Keane to spend time with him in court. He is not just an employee of the state speaking on ''matters in which [he has] competence,'' such as a town manager writing about how municipal budgets are assembled. He's speaking about a specific case, involving one person, and breaking it down so that he may ostensibly, as you say, give those who need it ''a small civics lesson.'' He gives the strong impression that he, as a deputy district attorney, agrees both with the decision of a fellow district attorney to prosecute this specific case and with the jury's verdict itself.

2) What, however, if Mr. Hoover were to appeal the verdict, and have it overturned, due to misconduct somewhere in the proceedings of the case, the jury, or on the part of prosecutors? How would that reflect upon Mr. Boscia? Would he regret writing these comments?

3) As for whether he was speaking ''spontaneously'': in many states, such as Minnesota, pre-conviction misdemeanor criminal cases are not available online to the public. In looking through some of the DA websites for counties in California (such as San Diego), it is stated that ''criminal records are not available online.'' The Alameda County site states that criminal case ''files may be viewed on the premises only.'' Aside from all that, it appears that one would need a docket number to find Mr. Hoover's records and be physically present in the court building itself to read those records. I've spent hours online attempting to find the information that Mr. Boscia provides in his first comment. I cannot find it.

In short, as part of my ongoing ''civics lesson,'' I would ask Mr. Boscia to inform me where all of the information relating to the direction of this case prior to April 2nd is located online. I would like to know how a private citizen, without access to anything but Mr. Hoover's name after reading Mr. Keane's column (and perhaps unaware of this case prior to reading that column), would be able to write such a detailed chronology within 15 hours of the column's publication, and just a few hours after the close of the workday.

That will be my civics lesson; I’m sure I’m overlooking some crucial database that would give me all of the information I’m seeking that anyone – not just a deputy district attorney – has access to.

4) When you state: ''I hope employees of the state are not generally forbidden to speak spontaneously on matters in which they have competence.''

I've dealt with whether these were ''spontaneous'' comments in my challenge in the penultimate paragraph of point (3). As for ''generally'': well, this word makes all the difference, doesn't it? There are codes of conduct for public employees, particularly deputy district attorneys. I urge you to read the Supreme Court's decision in Garcetti v. Ceballos, in which Justice Anthony Kennedy wrote:

''When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.''

The reason I found Mr. Boscia's comments problematic is that they straddle the line between someone speaking as a well-informed private citizen and a public employee making statements pursuant to his official duties. Of course there is a great deal of leeway for social workers, or teachers, or clerks, or even for district attorneys when they write movie or book reviews.

But Mr. Boscia is in a unique position and this must be taken into account. He is clearly lending the weight of his office to the substance of his comments; this cannot be denied. Given that he may be called upon at a future date to prosecute Occupiers - or to participate in decisions to do so - he has come rather close to demonstrating a prejudice against them (I point out to you his aside as to whether Mr. Keane's friends watching the trial were ''prone to violence,'' an utterly spurious inference that he is not qualified to make).

The questions I have asked – and to which I suspect I shall receive no answer (if I were Mr. Boscia I wouldn't answer them, for my career's sake) – affect his duties to the citizens of the State of California. This is not in the same category as a visit to a law school to discuss his life as a DA to aspiring lawyers, or a speech to a convention dealing with general matters relating to prosecutorial discretion. He publicly intervened in an ongoing legal case being prosecuted by a colleague. If he had written a series of comments disagreeing with the verdict, and with Mrs. O’Malley’s decision to prosecute, I wonder if you would feel the same way about the nature of this “civics lesson.” I'm sure his employer would not.

It is especially amusing to read his original words now that Mr. Hoover has been sentenced, and to note Mr. Boscia’s colleague ADA Angela Chew’s request that Hoover receive a harsher sentence because he “insisted on taking the case to trial” (San Jose Mercury News, April 9th). So much for what you wrote about the “beauty” of the system, Mr. Boscia: “The right to trial by jury is another bedrock of our system, preventing ‘state vengeance disguised as justice.’'' Please, continue our civics lesson and explain why taking a case to trial should single one out for more punitive probation that agreeing to a plea arrangement.

To close with some words of your own, Mr. Smith: in writing here, Mr. Boscia appears to have courted “harm” and “increased” his “risks” in being able to fulfill his sworn duty as an impartial representative of the people of California, at least in regard to any cases dealing with the Occupy movement.
McFaddyen O'Flaherty-McGinnis
11 years 5 months ago
No response. Figures. The Law goes silent when questioned.

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