San Diego's Circus Trial: Sidewalk Chalk Protest Reveals Gaping Government Failures

Perhaps you've heard about - and enjoyed - the acquittal of Jeff Olson after he was tried on 13 counts of vicious chalk attack on the Bank of America in San Diego.

A jury of his peers said essentially the same thing as Senator Elizabeth Warren's tweet last week: "You've got to be kidding me."

Well, no, actually, no one involved was really kidding.

Olson, 40, wasn't kidding when he went on a seven month rampage, from February to August, 2012, remorselessly using a water-soluble children's chalk to scar the sidewalks in front of a local Bank of America with such vicious messages as "No thanks, big banks" and "Shame on Bank of America."

Being water-soluble, the chalked messages didn't last. It's possible that the sentiment behind them remains semi-permanent among much of the population.

Seems the Bank of America Has Tender Feelings

The Bank of America wasn't kidding when it complained, but at first the San Diego City Attorney was reluctant to prosecute. The bank's Darell Freeman, VP of Global Corporate Security, reportedly hounded police and prosecutors to act.

The Bank of America wasn't kidding when it claimed it had to spend more than $6,000 cleaning chalk off public sidewalks, and security VP Freeman even got into a confrontation with Olson, as he chalked up two more branches.

The Bank of America wasn't kidding when it reminded City Attorney Jan Goldsmith that his election campaign had accepted banks' financial contributions. And it wasn't kidding when it reminded Goldsmith that he might be looking for more contributions when he decided to run for mayor in 2016.

Finally the Bank Snapped the City Attorney Into Line

City Attorney Goldsmith wasn't kidding when, perhaps regretting his politically unseemly delay, he went ahead and overcharged Olson with 13 misdemeanor counts of vandalism, putting Olson in jeopardy of a potential sentence of $13,000 in finesand 13 years in jail.

Olson wasn't kidding when he asserted that his chalk crusade was a constitutionally protected expression of his First Amendment right to free speech, or when he hired defense attorney Tom Tosdal.

City Attorney Goldsmith's lead prosecutor, Paige Hazard, wasn't kidding when, according to the San Diego reader, she offered Olson a plea deal:

On May 16, Hazard told Olson the City would drop the case if he agreed to serve 32 hours of community service, attend an 8-hour seminar by the "Corrective Behavior Institute," pay Bank of America $6,299 in restitution for the clean-up, waive all Fourth Amendment rights guarding against search and seizures, and surrender his driver's license for a three year period.

Olson wasn't kidding when he turned down the deal.

Well, If You Don't Like the First Offer, How About a Worse One?

Prosecutor Hazard wasn't kidding when she made a second offer, according to the Reporter:

So on June 18, as the June 25 trial date neared, Hazard offered Olson another deal. Olson would plead guilty to one count of vandalism, agree to serve three years' probation, pay restitution - amount undetermined - spend 24 hours cleaning up graffiti, and surrender his driver's license for 2 years.

Olson wasn't kidding when he turned down the deal, telling reporters: "I didn't see how that was fair…. It was their decision to take this to court, not mine."

San Diego mayor Bob Filner wasn't kidding when he wrote a June 20 memorandum that read, in part:

This young man is being persecuted for thirteen counts of vandalism stemming from an expression of political protest that involved washable children's chalk on a City sidewalk. It is alleged that he has no previous criminal record. If these assertions are correct, I believe this is a misuse and waste of taxpayer money. It could also be characterized as an abuse of power that infringes on First Amendment particularly when it is arbitrarily applied to some, but not all, similar speech."

Is There Any Reason the Court Has to Allow the Constitution into Evidence?

Prosecutor Hazard wasn't kidding when, as the trial started, she made a motion to prohibit Olson's attorney Tom Tosdal from mentioning or making reference to "the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech" during the trial, in front of the jury, or to the media.

Superior Court Judge Howard Shore wasn't kidding when he granted the motionand said, "The State's Vandalism Statute does not mention First Amendment rights." No kidding - most statutes don't mention the Constitution at all. Attorney Tosdol said, "I've never heard that before, that a court can prohibit an argument of First Amendment rights."

Attorney Tosdol wasn't kidding when he argued to the jury that the vandalism statute requires that something be "maliciously defaced" to be guilty of vandalism, or when he said of Olson: "His purpose was not malicious. His purpose was to inform."

City Attorney Goldsmith wasn't kidding when he had five attorneys from his office in court to hear the jury's verdict on July 1.

Who Thought It Was a Good Idea to Give the Jury the Last Word?

The jury wasn't kidding when it delivered a "not guilty" verdict on each of the 13 vandalism counts against Olson.

Judge Shore wasn't kidding when, after the verdict, he explained his gag order on arguing the constitution to the jury or the media. Judge Shore, described by the media as "a crusty old guard Republican," told the courtroom:

The media set the tone in this case by talking about a potential 13-year sentence. It had a tendency to infuriate the public instead of informing it. Anyone in the system, the lawyers and anyone involved, knew that maximum sentence would never be handed out but still it was reported.

Judge Shore wasn't kidding when he added that Mayor Filner was "irresponsible" for writing his June 20 memo criticizing the prosecution. Before becoming a judge, Shore was a San Diego County assistant district attorney who, according to his law school bio, "prosecuted several hundred cases, many involving psychiatric and other expert evidence."

Prosecutors Claim No Responsibility for Their Decisions

Prosecutor Hazard wasn't kidding when she defended the cost and purpose of the prosecution, blaming Olson for turning down "fair plea offers."

City Attorney Goldsmith wasn't kidding when he had his office issue an official statement that blamed Olson for forcing the city to take the case to trial.

An anonymous group of San Diego citizens wasn't kidding on June 27, when it created a Facebook page called "Recall Superior Court Judge Howard Shore," which had 285 "likes" as of July 2. Judge Shore was first elected in 2002 and is currently serving a six year term that ends in 2014. He is a 1972 graduate of the University of San Diego Law School and this spring taught a course there on "Scientific Evidence."

Ocean Beach Rag at wasn't kidding on June 28 when it reported on Jovan Jackson's second marijuana trial, Judge Shore presiding. Jackson had offered a medical marijuana defense in her first trial and the jury had acquitted her. In the second trial, OBRag said:

[Jackson] was denied a [medical marijuana] defense and ultimately convicted. San Diego Superior Court Judge Howard Shore … referred to medical marijuana as "dope," and called California's medical marijuana laws "a scam" … [He] sentenced Jackson to 180 days in jail.

The appeals court wasn't kidding on October 24, 2012, when it overturned Judge Shore's decision, and made its ruling a precedent by publishing it.

More People Getting Involved? This Can't Be Good.

Another anonymous San Diego group wasn't kidding on June 24, when it created a Facebook page called "Recall Jan Goldsmith," the city attorney, about whom it says:
"Goldsmith has converted his Office from the Professional Counsel to the City, to an unprofessional, out of control political platform for a Republican politician running for a new office." With 306 "likes" as of July 2, that is reportedly six times as many as a similar site to recall Mayor Filner.

Mayor Filner wasn't kidding when, according to San Diego 6 TV, he "slashed the budget of the City Attorney's Office for the fiscal year that started Monday [July 1]" or when he reportedly criticized Goldsmith behind closed doors.

City Attorney Goldsmith wasn't kidding on July 2, when he announced on "Good Morning San Diego" Monday that his office "will not take part in closed session meetings until it receives assurances that his officials will not be thrown out of a meeting again by police force." These are closed meetings held to discuss legal and personnel issues.

The judicial sideshow may be over in San Diego, but the circus hasn't left town and some of the clowns are still in office.

But no one's talking about prosecuting the banks for the economic vandalism they committed against the country. And they're not kidding.


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