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James T. KeaneApril 18, 2012

Readers of this blog may recall my post from two weeks ago today about Joe Hoover, S.J., a classmate of mine at the Jesuit School of Theology who was found guilty of obstructing a public thoroughfare during an Occupy Oakland march on January 28, 2012.  Joe was sentenced on Easter Monday to ten days in the “sheriff’s work program,” a fine of $233, and two years probation.  Because Joe already had credit for time served for the four days he spent in jail after his arrest, he needed to serve only one more day in jail, which he did last Saturday at Glenn Dyer Jail in Oakland.

I bring the matter up again here because there has been a new development.  A member of the Occupy movement found that he had footage of the moments immediately before Joe’s arrest, and sent that ten seconds of video to Joe earlier this week.  You can watch it here (the password is Occupy, with a capital O).

Joe enters the screen from your left—he is the tall, slight man wearing black pants, a black clerical shirt, a blue windbreaker, glasses, and a tan Marquette University baseball cap.  What follows doesn’t need my narration, as you can watch it for yourself.  Make sure your sound is on, as the baton strikes are rather dramatic.

I would ask that you keep in mind a few things when you watch this:

1. Joe was convicted of obstructing a public thoroughfare.

2. The arresting Oakland police officer testified under oath that he arrested Joe because Joe was stopping in the street, and then walking very slowly when ordered to hurry, thus obstructing a skirmish line of officers.

3. The arresting officer also testified under oath that he was lined up “shoulder to shoulder” in a solid line of officers moving in sync up the street, and that his fear was that Joe was attempting to get behind them, which would put the officers in danger.

4. A California assistant district attorney commented in response to my initial post that my interpretation of Joe’s case was uncharitable toward the justice system, and that “it seems to me that our legal process, which you indict, has worked in his case.”

I encourage you to watch the video and decide for yourselves if the legal process worked in Joe’s case. While we’re at it, keep in mind that the prosecutor asked for a harsher punishment for Joe at his sentencing because he “maintained his innocence” and “insisted on taking this matter to trial.” 

Jim Keane, S.J.

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
Beth Cioffoletti
10 years 5 months ago
Having been involved in criminal justice proceedings for almost 20 years now (as an advocate for the accused), I'm not at all surprised at the testimony of the police officer or the recommendations of the prosecutor.  It happens every day, a thousand times times a day in legal courts across America.  Those with the power exert their power and twist the fates of those without it.

But thank you for bringing this example to our attention.  At least we know what we're up against and don't have to pretend to believe that our legal system is "just".
Beth Cioffoletti
10 years 5 months ago
(the password is Occupy, with a capital O).

[from the text of the article above]
Stanley Kopacz
10 years 5 months ago
It is obvious now what all that homeland security domestic militarization was for.  It's to control us, not protect us.  Less-than-lethal (projected torture) weapons like sound cannons and directed microwaves were not developed for controlling Iraqis.  Sound cannons are expected to be deployed at the G8 summit.
JR Cosgrove
10 years 5 months ago
A couple comments:

There must be more video than this.  It doesn't seem likely someone would stop the recording at that moment.  It is all very confusing.

Second, a police officer is apparently striking Mr. Hoover but he is not reacting and continues to walk on as if nothing had happened to him personally.  Is this the police officer of the trial?  What was actually happening during this 10 second clip to Mr. Hoover.  I watched the video over 10 times and couldn't figure it out as he disappears behind the fence after a couple seconds.  What am I missing because I did not see any reaction by him that he was being hit though at the end it is not clear what happened to him.
Edward Gomeau
10 years 5 months ago
''In this case, the individual's presence at a confrontational gathering gives the impression of guilt by association, which serves as a strong counterweight to the presumption of innocence.''

This is incorrect and hinges entirely on the commenter's specious and novel inference that one's presence at a ''confrontational gathering'' merits equal weight with the long-settled presumption of innocence under Anglo-American law. In any event, whether this was a confrontational gathering or not, Mr. Hoover was convicted of obstructing a public thoroughfare. Thus, one's opinion that this was a confrontational gathering is irrelevant; if we should learn anything from this case, it is that anyone in Oakland is subject at any time, day or night, to arrest and prosecution for obstructing a public thoroughfare.

As for ''guilt by association'' (just for the commenter's future reference): the Supreme Court has been extremely reluctant to impute ''guilt by association'' on the basis of political affiliation or activity. Since 2001 the executive branch has relied upon the concept of ''material support'' for organizations it deems to be terrorist as a basis for imputing such guilt - a topic I'm confident the commenter will not want to speculate upon here.

I urge the commenter to read the Supreme Court decisions Elfbrandt v. Russell (1966) and United States v. Robel (1965). Here are just three of the findings from the decision in Elfbrandt:

1. ''Political groups may embrace both legal and illegal aims, and one may join such groups without embracing the latter.''

2. ''Those who join an organization without sharing in its unlawful purposes pose no threat to constitutional government, either as citizens or as public employees.''

3. ''To presume conclusively that those who join a 'subversive' organization share its unlawful aims is forbidden by the principle that a State may not compel a citizen to prove that he has not engaged in criminal advocacy.''

I would also suggest reading Schneiderman v. United States (1943) and NAACP v. Clairborne Hardware Co. (1982), from which I'll conclude:
In Healy v. James ''the Court has consistently disapproved governmental action imposing criminal sanctions or denying rights and privileges solely because of a citizen's association with an unpopular organization.'' The Court stated that ''it has been established that 'guilt by association alone, without [establishing] that an individual's association poses the threat feared by the Government,' is an impermissible basis upon which to deny First Amendment rights.'' (Quoting United States v. Robel): ''The government has the burden of establishing a knowing affiliation with an organization possessing unlawful aims and goals, and a specific intent to further those illegal aims.''
Elfbrandt v. Russell (1966)
United States v. Robel (1965)
Schneiderman v. United States (1943)
NAACP v. Claiborne Hardware Co. (1982)
james belna
10 years 5 months ago
In you previous post, you found it necessary to include the caveat that you ''don't speak for Joe''. Inasmuch as you weren't there when he was arrested (and it is not clear if you were even at his trial), and your only apparent source of information is Joe  - and ten seconds of a truncated video - I don't know why you expect us to simply agree that (1) Joe was wholly innocent of the charges against him; (2) that one or more police officers committed perjury; and (3) that this obvious truth somehow eluded all 12 jurors.

What does Joe have to say about this? Does he deny the allegation that he was blocking a public thoroughfare? Does he want to accuse police officers of perjury? It seems to me that Joe was content to have his day in court, pay his fine, and move on. That should be the end of it for us too. But if Joe wants to make an issue of his arrest and trial, he should speak for himself.
Marie Rehbein
10 years 5 months ago
The arresting officer probably sincerely believed what he perceived to have been the case even if it wasn't.  Stressful situations distort perceptions.

The point isn't to get justice when one is present at these kinds of protests.  For the zealous, it is to be arrested and unjustly sentenced in order to get attention for one's cause.  This was probably the judge's perspective - I am assuming it was not a jury trial.

It is said that if one is guilty, one has a better chance with a jury, while if one is innocent, a judge suffices.  In this case, the individual's presence at a confrontational gathering gives the impression of guilt by association, which serves as a strong counterweight to the presumption of innocence.

Edward Gomeau
10 years 5 months ago
@Jim Belna: Mr. Hoover is under no obligation to speak for himself here, and as for Mr. Keane's contribution, you are creating a heretofore unheard-of demand that journalists restrict themselves in matters of law to write only upon cases involving themselves. Mr. Keane is every bit as qualified to write about injustice as anyone else.

One of the arguments in his first piece (since you bring it up) - was not with Mr. Hoover's conviction or the jury, but with the charge and decision to prosecute by the District Attorney. The question was posed: how often do Oakland residents face arrest, prosecution, and a jury trial for ''obstructing a public thoroughfare?'' The answer, to anyone with common sense, is never, even if the person does request a trial. (Any sensible DA would still cut a deal at that point; it was an utterly irresponsible use of public resources to take this to trial.) The original ordinance - which was first drafted in response to civil rights protests - is now being used as a cudgel to threaten and punish political speech, and further, to incarcerate those protesting under the Occupy banner. The sentiments of several commenters above make this abundantly clear, and they find nothing wrong with it. The prevailing feeling, faced even with the evidence of the video, is: ''they asked for it.''

Since you refer to the original piece, let me point you back to a series of questions there that were posed to a deputy district attorney from another county (a civil servant answerable to the public) who stepped in unsolicited to take Mr. Keane to the woodshed for a soi-disant ''civics lesson.'' Note that the ADA never bothered to return to respond to any of those questions, some of which asked him to identify the source of his copious knowledge of Mr. Hoover's case.

One need not have the firmest of grips on public affairs to understand that police are not wholly reliable witnesses of events to which they were central parties. In fact, you can now read the report from the UC-Davis November 18th pepper spray incident involving campus police to get a pungent taste of this. The lessons learned from the breakdown of the chain of command surrounding the apparently immediate danger to public order posed by tents on a campus lawn are just as applicable, if not more, to a far more complicated, urban police department (Oakland's) soon to come under federal supervision due to its past malfeasance. Just as the burden of proof is on us (or a journalist) to prove that a police officer committed perjury - as you observe in passing - so too is a prosecutor under the same burden to demonstrate beyond a reasonable doubt that Mr. Hoover ''obstructed a public thoroughfare.'' This was also one of Mr. Keane's central points and the video here, while brief, should introduce some doubt as to the actions of the Oakland PD that day to any fair-minded person. Keeping in mind that Mr. Hoover does not need to prove his innocence, ask yourself: what if this video had been shown to the jury?

To reiterate: it is entirely legitimate for anyone to question the motivations of prosecutors, as well as the just and unjust application of certain laws, whether those laws directly affect them or not.

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