After two days of testimony in his courtroom, Judge Robert C. Gallo seemed to realize that for some of those arrested in Oakland following last fall's G-20 summit, their only offense was being in the wrong place at the wrong time.
But by then, it was too late for three of the four defendants appealing guilty verdicts stemming from the events of Sept. 25.
On March 1 and 2, Gallo heard four cases involving arrestees taken into custody in front of the University of Pittsburgh's Cathedral of Learning that night.
As with earlier court hearings in October, multiple police officers testified that they were dispatched to break up an anti-police rally in Schenley Plaza. As police cordoned off the plaza, they testified, bottles were thrown and some in the crowd approached police lines.
Using the LRAD -- the Long-Range Acoustical Device, a truck-mounted loudspeaker that can also create pain-inducing sounds -- police declared the gathering "an unlawful assembly." They instructed those present to "leave the immediate vicinity ... no matter what your purpose is." Officers marched on the plaza, funneling the crowd onto Forbes Avenue, then onto the lawn surrounding the Cathedral of Learning, where 107 were surrounded and arrested starting at 11:11 p.m. -- about half an hour after first being ordered to disperse.
But the fact that police arrested protesters en masse created problems for prosecutors. None of the officers testifying in Gallo's courtroom had seen the defendants do anything wrong. As in earlier proceedings, police would even testify that by the time they took someone into custody, they'd already been handcuffed by another officer.
The matter came to a head in Gallo's courtroom during the March 2 trial of Melissa Hill, a Minnesota videographer with Twin Cities Indymedia. Like other defendants -- who testified they were merely drawn by the crowd, or to document a historical event -- Hill testified she saw no bottles or other objects being thrown. While acknowledging that she heard the LRAD's order to disperse, she said she had no idea where she was supposed to go. When she ended up surrounded on the Cathedral Lawn, she testified, she just awaited arrest.
"What did you see this particular [defendant] do?" Gallo asked Hill's arresting officer, Sgt. Richard Howe.
"I saw no conduct of this particular defendant," Howe testified.
Which made it difficult for prosecutors to back up the charge of disorderly conduct.
"[F]ailure to disperse from the area ... is enough" to warrant being a "hazard," contended Assistant District Attorney Kevin Chernosky. Under state law, a person commits disorderly conduct if he or she causes "public inconvenience, annoyance or alarm" by "creat[ing] a hazardous or physically offensive condition."
But Hill's attorney, Glen Downey, argued that "mere presence at the scene ... is insufficient evidence to find a person guilty of disorderly conduct."
Gallo agreed, and found Hill not guilty. The judge had already convicted three others under very similar circumstances, slapping each of them with a $50 fine. But, he explained, "Every prior case I had, the officer was here who saw what happened."
Actually, that wasn't so. During trials held the day before, arresting officers testified that they hadn't seen their arrestees do anything, either.
"I didn't see him specifically creating or doing any acts," testified detective William Friburger, who had arrested Oberlin student Peter Vankoughnett. "He was among the crowd."
Similarly, the only testimony detective Robert Shaw could give against Pitt student Ana Rasshivkina was, "She was standing on the Cathedral Lawn with a group of other people."
And Judge Gallo himself had summed up officer David Sisak's case against Pitt student Jonathan LaTourelle: "He was in the circle that failed to disperse. [Sisak] didn't see him do anything."
Gallo found all three guilty anyway. Their lawyer, Eileen Yacknin, tried to argue that her clients were confused by the LRAD orders.
The LRAD order "mainly [applied to] all the people who were in the street," not the neighborhood, testified supervising officer Lt. Robert Roth.
"You could hear it all over Oakland?" Yacknin asked Det. Friburger.
"Yes," Friburger replied. The ADA objected before Friburger could answer Yacknin's follow-up: "So that anybody could have heard it a far distance away and thought they could have been told to disperse?"
The same issue should feature in the Citizen Police Review Board's hearings about G-20 police procedures -- if the CPRB can get any police documents to examine. Common Pleas Judge Stanton Wettick has yet to rule on a March 8 hearing in which the city sought to block CPRB access to any police documents not related to G-20-related complaints from individuals. During the hearing, the city's attorneys claimed that the CPRB has no right to the information or right to launch investigations unless there is a specific complaint from a citizen.
"Then you're really trying to give the review board a very limited role," Wettick said when the argument was repeated March 8. "This is an incredibly important decision because it would seriously limit the scope of the Citizen Police Review Board."