Inside an almost packed courtroom, Supervising City Court Judge, the Hon. Teresa D. Johnson issued her Decision in the People v Acuff, et al.Â All charges against 28 defendants were dismissed without prejudice.Â Those defendants, except for one, had been part of an Occupy Rochester protest. The lone journalist was my client, 20 year-old R.I.T. photojournalism student Jonathan Foster. Mr. Foster is also a student member of the National Press Photographers Association (NPPA) which is why I had been asked to represent him.
Mr. Foster was charged with trespass (New York State CPL Â§ 140.05) and for violating the Rochester Municipal Code (Â§79 -2- c. Remaining after park closing hours) on the night of October 29, 2011. From videotape evidence and a witness statement, it appears that Mr. Foster was on a public sidewalk at the time of his arrest although the accusatory instrument, based upon information and belief, stated he was in Washington Square Park shortly after its 11.p.m. closing time. His assigned story and photos were published 5 days later by the weekly R.I.T. Reporter in print and online at http://reportermag.com/article/11-04-2011/occupy-rochester-leads-to-arrests.
Before we ever got to court I had written letters to the Rochester Police Department, the District Attorney and the Mayor. All requested the same thing â€“ dismiss the charges against Jonathan as had been done in so many other cities around the country where journalists were caught up and arrested along with protesters. All the letters were ignored.
In the letters I argued (to no avail) â€œthat although not unlimited, the media enjoys a broad right under the First Amendment to photograph in public places such as streets and sidewalks. These rights are rooted in the First Amendmentâ€™s strong protection of speech within â€˜public forums,â€™ the most commonly recognized examples of which include streets, sidewalks, and public parks.â€
I was surprised that the police and prosecutors were unmoved. Months before this incident, I had met with Rochester Police Chief, James M. Sheppard, in order to help his department draft improved police-press guidelines after Emily Good (also one of the defendants in this case) had been arrested in June and charged with obstruction of governmental administration as she videotaped a traffic stop from the front lawn of her house. Her charges were dropped but not until the video had gone viral and the case became nationally publicized.
Jonathan and I had been in court together twice before. On November 17, 2011, I appeared on his behalf and filed a motion to dismiss. On that occasion he came with his parents who had driven five hours from Pennsylvania to support their son. The ADA offered and ACD (Adjournment Contemplating Dismissal). That would have meant that after 6 months and a few hours of community service the charges would have been automatically dismissed. We rejected that offer because Jonathan had already performed a community service by taking an publishing the photos but more importantly, since the OWS movement is unlikely to go away anytime soon, I worried that Jonathan would find himself back covering another demonstration, with its risk of another arrest. If that happened these original charges could be reinstated along with the new ones. It’s what’s known as getting jammed-up.
Instead I filed a 21 page motion to dismiss, arguing first that the information forming the basis for the arrest was defective in that â€œevery element of the offense charged and the defendant’s commission thereof must be established by â€˜non-hearsay allegations of the factual part of the information and/or of any supporting depositions.â€ Almost two months later the court agreed, finding that Chief Sheppard (did I mention that he was there that night, made a number of arrests, had his picture taken by Jonathan and signed the accusatory instrument against all the defendants?)Â â€œdoes not sufficiently allege non-hearsay factual allegations establishing every element of trespass.â€
The dismissal motion also argued that the charges against Mr. Foster should be dismissed â€œin the furtherance of justice.â€ Pursuant to CPL Â§170.40, â€œan accusatory instrument . . . may be dismissed in the interest of justice . . . when, even though there may be no basis for dismissal as a matter of law . . . [where] such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice.â€ In Jonathanâ€™s case there were many such factors, the first of which was that that at the time of the alleged incident he was not there to protest but as a journalist covering a story of public interest. The United States Constitution has long protected the right to a free and robust press. The ability to gather and disseminate news is abridged when the government, under color of law, interferes with and arrests journalists reporting on issues of public concern.
Another factor to be considered in a motion to dismiss in the interest of justice is the â€œcharacter and condition of the defendant.â€ Here Jonathan had much to commend him. He is in his junior year with a 3.43 GPA, attending R.I.T. on a presidential scholarship and a member of the honors program. He is an Eagle Scout. He has never been in trouble with the law, has never been arrested or charged with any crime before the instant matter. His first pictures were published in the Reporter Magazine in October 2009 and he has worked for the Reporter Magazine regularly since October 2010. In October 2011 he became a staff reporter/photographer.
Additionally, Mr. Foster was wearing (go to link to see a photo of his arrest) a sky blue shirt from his school magazine over his raincoat with large block letters spelling â€œREPORTERâ€ on the front and he identified himself as such at the time of his arrest. He was also taking pictures with a professional Nikon camera, lens and flash unit, whereby any reasonable person should have observed and known that he was a journalist covering a news story.
In the meantime the Rochester Democrat & Chronicle printed an editorial on November 23, 2011 The headline read â€œUphold First Amendment rightsâ€ and went on to state that Jonathanâ€™s â€œprosecution could have a chilling effect on First Amendment rights to freedom of the press. District Attorney Mike Green should reconsider.â€ He didnâ€™t.
In another appearance on December 14, 2011, I made those arguments orally along with more than a dozen other attorneys representing various defendants. The judge listened and then reserved her decision. Until Today.
But today the Judge never reached those issues and denied dismissal on those grounds because then she would have had to dismiss â€œwith prejudice,â€ which, means that Monroe County would be precluded from re-filing the charges. Remember the second sentence of this story? â€œAll charges against 28 defendants were dismissed without prejudice.â€ Pursuant to todayâ€™s decision, that means should police or prosecutors decide to re-file any of these charges the â€œcomplaints and supporting depositions [ ] must establish non-hearsay allegations with respect to each individual defendant.â€ (emphasis added)
As a photojournalism student Jonathan says that this incident proved a valuable if not difficult lesson for someone just starting out. Letâ€™s hope it is a â€œteachable momentâ€ for the police, prosecutors and the courts as well.