WEEKEND EDITION

Occupy Wall Street Protesters Get Their Day in Court

| November 2, 2011 4:00 AM

As the first batch of approximately 900 people charged in the Occupy Wall Street mass arrests prepare for their first court appearances on Nov. 3, MetroFocus looked at what’s at stake and what the likely outcomes are for the protesters.

The first mass arrest of the Occupy Wall Street movement took place near Union Square and resulted in 90 arrests. Most of those people were charged with disorderly conduct and are scheduled to appear in court on Nov. 3. MetroFocus/Sam Lewis

There have been two mass arrests so far. The first, of nearly 90 people, was near Union Square on Sept. 24. (This group included the arrest of a MetroFocus reporter, who is slated to appear in court Thursday unless his case is dismissed.) The second mass arrest, of approximately 700 people, was on the Brooklyn Bridge on Oct. 1. While a small handful of those from the Brooklyn Bridge arrests were charged with misdemeanors, the majority of the mass arrests resulted in charges of disorderly conduct, which is a violation and thus carries lesser penalties than a misdemeanor; most of the protesters face up to $250 in fines and 15 days in jail.

What can the Occupy Wall Street protesters expect in court?

The National Lawyers Guild, which has offered to represent all of the Occupy Wall Street protesters, asked Manhattan District Attorney Cyrus Vance to dismiss all of the charges against those protesters whose cases his office is handling, according to an Oct. 17 story. Martin Stolar of the National Lawyers Guild told MetroFocus that the district attorney’s office declined the request but did promise to offer protesters what’s called an “adjournment contemplating dismissal.”

What is an ACD?

An adjournment contemplating dismissal, commonly referred to as an ACD, is a form of conditional probation. It is not an admission of guilt, nor is it an affirmation of innocence, Stolar explained.  But ACDs do have other legal implications, he said, particularly for non-citizens and for people who may be involved in other types of criminal or civil cases.

A defendant who accepts an offer of an ACD does not have to decide whether to plead guilty or not guilty. Instead, if the defendant avoids arrest for a certain period of time, then all charges will be dismissed and the case record sealed. But if during that period a defendant gets arrested again, for anything, the original charge will be reinstated and proceed towards trial. For the Occupy Wall Street protesters, this probationary term is likely to be six months.

According to a source in the district attorney’s office, ACDs are typically offered to “first time offenders, who maybe didn’t make a great decision but who you know you are not going to be asking for jail time for” because it’s “not someone who benefits from being entered into the criminal justice system and [they] don’t deserve having a black mark on their record.”

The second mass arrest of Occupy Wall Street protesters resulted in more than 700 arrests on the Brooklyn Bridge on Oct. 1. Most of the people arrested were charged with disorderly conduct and are scheduled to appear in court this December. AP Photo/Stephanie Keith

Why might protesters reject ACDs?

So far, the National Lawyers Guild is representing, on a volunteer basis, nearly two-thirds of the Occupy Wall Street defendants, 25 of whom Stolar himself is representing.

While Stolar conceded that “dismissal for a low-level violation is a normal practice,” he added that his clients see an ACD as a concession to wrong-doing. And in accepting the offer, they give up the right to have their case tried in court. “What I can say is what’s in the minds of some of my clients, which is, ‘I don’t want to be on some kind of probation from going to a lawful demonstration.’”

Mara Verheyden-Hilliard, who heads the Partnership for Civil Justice Fund, said that ACDs “also sends a message to people that lawful political activity has a real criminal component.” (On Oct. 4, her organization filed a class action lawsuit against the city alleging that New York City police officers violated the protesters constitutional rights by luring and trapping them on the Brooklyn Bridge.)

A chilling effect?

Verheyden-Hilliard also explained that anyone who has been arrested and who continues to protest faces a real threat of second arrest. Subsequently, she would view mass offers of  ACDs as “intended to chill ongoing political action.”

The district attorney’s office does not agree that ACDs have a chilling effect on protesters. The source said that if protests are peaceful and “if you are not breaking the law, you are not going to get arrested.” But if people are doing “everything lawfully and they still get arrested,” a source in that office conceded, then the decision about whether to prosecute is “at the discretion” of the district attorney.

WATCH VIDEO:

Video of  police arresting a large number of Occupy Wall Street protesters on the Brooklyn Bridge on October 1. The headlines for this video was chosen by YouTube. Youtube/Daryl Lang.

Will all Occupy Wall Street protesters get an ACD?

A source in the district attorney’s office told MetroFocus that “There is a tradition in Manhattan of being very fair with protests,” noting that New York City has protests all year-long for a variety of reasons, including most recently those related to gay marriage. Cases are evaluated on the conduct of the defendant, not the content of the protester’s message, but “if conduct was especially aggressive or more serious,” then protesters would likely not be offered ACDs.

What happens if a protester pleads not guilty?

National Lawyers Guild attorneys are advising their clients to make their own decisions about whether to accept ACD offers. “Some people will take it and others will say they want a trial,” Stolar said. “I have to say, given the way people were arrested, their chances at prevailing [at trial] are pretty good,” he added.

Several Occupy Wall Street protesters have already reported that they are planning to plead not guilty. Many want a trial because it’s a way to tell their own stories and also often the only way, particularly in mass arrests, to call into question  law enforcement’s motivation, behavior and protocols.

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