Rough justice

(continued)

by Kristen Lombardi

Timoney says his department's extensive preparations that day went off without a hitch. "By and large," he told the Phoenix in December, "it went according to plan." He is especially proud that he kept his promise to ACLU leaders during pre-convention meetings not to use tear gas and rubber bullets. "The one thing I didn't want was Dan Rather or some other guy going on TV with scenes like Seattle," he explains. (Given that Seattle's police chief resigned because of the now-famous protests, what commissioner would?) Calling protesters "crybabies to the core," Timoney denies civil liberties were ever violated. The criminal cases have collapsed, but not because protesters are innocent, he contends. Rather, he says, "that's indicative of Philadelphia justice." The majority of criminal suspects, he explains, end up on the streets because of an overly permissive court system.

DEAL BROKER: attourney Bradley Bridge negotiated a compromise between police and protesters to allow for the search of a warehouse used by activists. Police reneged on the deal when they arrested activists even though no illegal materials were found.

However, they may also be on the street because of sloppy police work. Police tactics were so aggressive that even Philadelphia residents who had nothing to do with the protests were targeted. Seven people working as medics, for instance, were stopped and detained for hours on August 2. Police forced them to dump or drink the "suspicious liquids" they were carrying -- which turned out to be water, milk, and mineral oil. The medics filed the first civil lawsuit related to the GOP convention protests back in September.

Police also stunned the public by arresting six prominent activists for being "ringleaders" during the convention demonstrations. All six were explicitly named in the 28-page police affidavit used for the warehouse raid; several of them maintain, through their lawyers, that police had kept them under surveillance for weeks. The most high-profile example is John Sellers, who heads the Ruckus Society, a Berkeley, California-based organization that trains activists in civil-disobedience techniques. Sellers was yanked off a downtown street August 2 and charged with 14 misdemeanors, from conspiracy to "possession of an instrument of crime" -- his cell phone.

Sellers was jailed for six days on an unprecedented bail of $1 million. That's $500,000 more than the bail recently set for Nathaniel Bar-Jonah, a former Massachusetts resident who cannibalized a 10-year-old Montana boy. Yet at Sellers's November 14 trial, prosecutors dropped all counts, telling a judge that they didn't have enough evidence. "That they would lock him up on $1 million bail, and then come to court without any evidence, tells me that the police and DA have gone way overboard," says Krasner, who represents Sellers and several other alleged ringleaders. He asserts that the case against Sellers was so weak that police resorted to "making stuff up." Early records accuse Sellers of aggravated assault, he says, a charge that was later changed to blocking traffic.

A blatant double standard in the police arrests has also come to light. In October, for example, Philadelphia Municipal Court Judge James DeLeon dismissed counts against seven people who had been arrested for lying in a street at a July 31 demonstration against the School of the Americas (SOA), the United States military academy that trains Latin American officers. DeLeon threw out the case on grounds of "selective prosecution" after he found that police had failed to arrest hundreds of people who blocked another street that same day while calling for Abu-Jamal's execution. The only difference between the two protests, the judge wrote, is that opinions of the SOA demonstrators "were not viewed as favorably by Philadelphia citizens."

The largest group trial thus far has proved to be something of an embarrassment for the prosecution. Boston resident Patrick Whittaker (who moved to San Francisco this month) became one of 43 defendants to appear in court November 27 after getting pinched at Broad and Spruce Streets. At his trial, Judge DeLeon acquitted all but five protesters of various misdemeanors because of a lack of evidence. Recalls Matt Borus, a Boston activist who attended Whittaker's trial, "The judge said they needed somebody to testify that somebody committed a crime."

Borus adds, "The DA's office knows perfectly well that protesters aren't a danger to the people of Philadelphia. In this case, they were forced to admit it."

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Kristopher Hermes of the watchdog group R2K Legal Collective concedes that some demonstrators vandalized police cruisers by using spray paint and slashing tires. But that doesn't mean the August 1 protests were all about violence. "Thousands of people were there," he says. "If they wanted, they could have ripped apart the city." Of the 404 arrested, he notes, police failed to charge even one person for these vandalism crimes. Instead, they arrested peaceful protesters who had done little more than speak out against myriad criminal-justice issues.

Protesters who managed to escape arrest turned their attention away from the convention to their imprisoned colleagues. For days, one vigil after another was staged outside police headquarters. Inside, conditions remained poor. Whittaker was one of scores of people who refused to cooperate with police by giving their names. So, he says, police hog-tied him and dragged him to the fingerprinting area. Rae tells similar stories. Police, he says, fastened plastic handcuffs so tightly that protesters' hands went numb. Others suffered cuts and bruises.

Timoney insists that such stories are "completely made up." In Seattle and DC, protesters who refused to give their names -- a common act of civil disobedience -- were released. But Philadelphia police kept such protesters because, as Timoney explains, "we said, `We're not going to [play the] game.' They kept themselves in jail and now they're complaining." As for the abuse allegations, he praises his men for showing "remarkable restraint." Twenty-six officers suffered injuries; still, he says, "Not one protester [was] injured. Over 400 arrested. That must be a first." Referring to Viveiros, he adds, "Your boy from Massachusetts walked in to the station. Nothing happened to him."

Medical records, however, indicate that Viveiros received a mild concussion during his arrest. And these days he has a different headache, since he could face years of legal wrangling before going to trial. Abrahams's decision to appeal the reduction in charges against Viveiros will delay his trial date by at least a year.

"What's up with that?" asks Chill Breeze, a friend of Viveiros. "Police and prosecutors are scared shitless of continuing protests. That's why they're reacting so strongly."

Even if their cases are dismissed, their Philadelphia experiences have forever changed the lives of these defendants. They have focused on nothing else for months. They've wasted hundreds of hours worrying about their defense. They've spent thousands of dollars traveling to and from Philly to appear in court. Some felony defendants have also been forced to spend thousands more hiring private lawyers, rather than rely on the seven who are representing defendants for free.

Their crash-course introduction to the American criminal-justice system -- Philadelphia's version, anyway -- has left them determined to speak out. Explains Rae, "They've taken 400 people and put them through hell." Rae has had no regrets these past months because, he says, "It's been a real wake-up call."

Timoney has few regrets as well -- and why should he? Immediately after the convention arrests, as Krasner says, "Timoney was practically put on his own Mount Rushmore." Billboards were erected thanking him for a job well done. "He was God's gift to the humane treatment of stinky protesters," Krasner adds. But as the prosecution's cases unravel and the arrest details surface, public opinion has shifted. The St. Petersburg Times even ran a January 6 editorial criticizing police for using "disturbing, unconstitutional tactics deserving of a Justice Department investigation."

But Timoney stands by his contention that he and his men did a good job. He proudly points out that just days after the GOP convention, the Los Angeles Police Department resorted to shooting pepper spray and rubber pellets at protesters during the Democratic National Convention -- something his cops never did. But if the Philadelphia trials have shown anything, it's that avoiding excessive force is not enough. Perhaps the ACLU's Stefan Presser sums up the sentiment best: "Police [gave] the impression they were [complying] with the Constitution. They were massively violating civil liberties."

Kristen Lombardi can be reached at klombardi[a]phx.com.

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