Man faces 13 years in jail for scribbling anti-bank messages in chalk

http://topinfopost.com/2013/06/26/man-faces-13-years-in-jail-for-scribbling-anti-bank-messages-in-chalk

by coldtea • 13 years ago

129 92 13 years ago

coldtea10• 13 years ago

Please don't use the "prosecutors go for the maximum penalty they can" defence for trivialising this shit.

Even if that was the case, penalties should be suggested proportionally to the crime -- not inflated to scare people.

For one, an inflated penalty makes the person more likely to want to avoid trial and take a plea bargain EVEN if he is innocent. "Should I risk 13 years with a trial or go for 2 years?".

Second, the role of the prosecutor is not to scare people and score points, it's to try to punish a crime appropriately.

Third, the inflated penalty also changes the perception of the judge and the jury, and makes them more likely to take the case as more serious than it is. E.g something that should actually be punished with something like 6 month probation, when inflated to a "13 years in jail" scare, can appear much more serious (and the offender much more dangerous) to the jury.

Who is more likely to be punished with, say, 6 years in jail? Someone for which the prosecutor suggested a 13 year penalty, or someone for which the prosecutor suggested 2 years?

RKoutnik2• 13 years ago

Wait, you commented on your own submission with this rant? Why bring it up here? We've already hashed out this entire discussion, as you can see in my other comment that you've downvoted.

mathrawka• 13 years ago

Hah, I wish I noticed that before upvoting this..

coldtea10• 13 years ago

Wait, you commented on your own submission with this rant

What the fuck does that even mean?

Should the poster of an article not add his opinions on the article he posted?

I posted it because I found it interesting. Including interesting enough to comment on.

Why bring it up here? We've already hashed out this entire discussion, as you can see in my other comment that you've downvoted.

Huh? I didn't downvote anything. In fact, when I left this thread, mine was still the only comment. I just come back and was pleasantly surprised to see 9 more comments added. Paranoid much?

vehementi• 13 years ago

Third, the inflated penalty also changes the perception of the judge and the jury

Yeah, if the real "deserved penalty" is 6 months probation, starting at 13 years anchors that number in people's heads, and the sympathetic jury will feel great for only giving him 1 year in prison, when that is a sentence double in length and immeasurably worse in magnitude compared to the deserved penalty.

anigbrowl21• 13 years ago

Juries don't issue sentences except in death penalty cases. I swear, I have never seen so many legal misconceptions in any other online community as I have in HN.

awesomifier2• 13 years ago

You don't get it, do you. The guy shouldn't do one second in jail. The threat of 13 years will almost assuredly lock the guy up for a lesser time and make it seem fair. It's not fair.

coldtea10• 13 years ago

That's exactly what I was getting at.

But also making a more general point against those kind of threats.

How am I not getting it?

olefoo• 13 years ago

Cases like this are corrosive to the legitimacy of the judicial system.

And it seems all of our institutions are suffering from a crisis of legitimacy.

Our justices care not for justice; our law makers are so bought and paid for they should be logo'd up like race cars, and the executive branch... has become everything it said it would fight against during the campaign.

When what's left of the middle class begins to defect from the norms that keep society intact; what then?

Do we flee to the countryside and try to take up farming while being hunted by the landowners drones?

Die in cities torn by strife and insurrection?

Live in fear of debt collectors who can turn any life upside down with an impossible to fight "computer error" not in your favor?

jnbiche• 13 years ago

I'm sure a lot of people will read your post and roll their eyes, but let me assure you that civil strife was the last thing on the minds of most Sarajevans in 1990, just a few years before the bloody civil war broke out in the countryside and the city was besieged. Yes, there were some that were perceptive (just like the above poster), but most said it will never happen here! -- after all, this is a cosmopolitan city that only recently hosted the Olympic Games.

Never underestimate the potential of society to quickly disintegrate under the right conditions. And I'd argue that the US, with 10% of the people suffering greatly, 10% astounded and shocked, and 80% paying no attention whatsoever, while our "leaders" lead us to slaughter, is at high risk for significant civil strife.

anigbrowl21• 13 years ago

Cases like this are corrosive to the legitimacy of the judicial system.

More like news stories like this are corrosive to the credibility of the media.

_pmf_• 13 years ago

Second, the role of the prosecutor is not to scare people and score points, it's to try to punish a crime appropriately.

That's the theory. Now look at any prosecutor and tell me he/she does not try to score points.

RKoutnik2• 13 years ago

Previous discussion: https://news.ycombinator.com/item?id=5948804

Summary: There's really no chance the dude's going to get all 13 years strung out. Hyperbolic writing at best. It's not a free speech issue because he wrote it on private property.

adventured• 13 years ago

Graffiti is a trivial crime, and it's an outrage there would even be the suggestion of a 13 year sentence. The best way to deal with graffiti is to gradually increase the financial cost of doing it each time caught. If it goes beyond financial costs, for example if the person is unable to pay as their fees climb with multiple offenses, then the next punishment should be probation, and then when all else is exhausted jail time. Point being, the last resort for this should be jail time.

It's a classic example of America's aggressive police state in action. One year for this crime would also be outrageous.

jsmeaton• 13 years ago

Graffiti carries a maximum of a one year sentence. See the update from the City Attorney:

1. This is a graffiti case where the defendant is alleged to have engaged in the conduct on 13 different occasions. The trial judge has already held that, under California law, it is still graffiti even if the material can be removed with water. Most graffiti can be removed. Also, the judge and a different pre-trial judge held that the First Amendment is not a defense to vandalism/graffiti.

2. The defense is trying to make this case into a political statement, which it is not. This is just one of some 20,000 criminal cases that are referred to us annually by the police department. We have prosecutors who decide whether to issue cases. They are professionals. The City Attorney was not involved in deciding whether to issue this case as is typical practice in prosecution offices for most cases. He hadn't heard of this case until it was in the media.

3. The defense is whipping up hysteria about the prospect of 13 years in custody. This is not a 13 year custody case. It is a standard graffiti case compounded by the fact that the defendant is alleged to have done it on 13 separate occasions. Because there were 13 different occasions when the defendant allegedly engaged in the conduct, the law requires them to be set out separately in the complaint. This increases the maximum sentence, but it still is a graffiti case and nothing more. The courts routinely hear graffiti cases and handle them appropriately using judicial discretion.

4. It is not unusual for victims to contact police or prosecutors about a case. Our prosecutors are trained to focus only on their ethical standards in deciding whether to file a case.

5. We prosecute vandalism and theft cases regardless of who the perpetrator or victim might be. We don't decide, for example, based upon whether we like or dislike banks. That would be wrong under the law and such a practice by law enforcement would change our society in very damaging ways.

anigbrowl21• 13 years ago

There is not 13 year sentence, Read the damn law, it's California Penal Code section 640.5-6.

throwaway420• 13 years ago

Is there reliable definitive information on whether he marked up private or public property?

awesomifier2• 13 years ago

"Russia warns Obama: Monsanto" is another story on the site and a huge issue that's be overshadowed by the NSA fiasco.

seandhi• 13 years ago

You mean this? http://www.snopes.com/politics/conspiracy/monsanto.asp

anigbrowl21• 13 years ago

So is 'Ghostly Figure Caught On Cam In The Woods.' I don't think you should rely on a site where ghost photos are regarded as front page news.

evo_9• 13 years ago

Judge Howard Shore told Mr. Olson’s attorney to refrain from "mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial".

How can you even say that in court and retain your position as a judge?

travisp2• 13 years ago

I don't know enough details to actually judge the judge one way or the other, but in theory it would be entirely appropriate for a judge to say this if the first amendment was not relevant to the defendant's guilt or innocence and bringing up the First Amendment would only confuse the jury.

I am not a lawyer, but if the judge was wrong that the First Amendment is not relevant to the crime and the law Olson is being charged under, then the defendant should be able to make that case in appeal (i.e. that the defendant was guilty of the crime, but that it is unconstitutional for this to be a crime).

It is someone of a legal philosophy debate: is the role of a jury simply to return a verdict of guilty or not guilty, or does the jury have the right to decide on the law itself?

In modern legal practice in the US, the law itself is not argued before the jury. What the judge seems to be doing here seems to be standard legal practice.

trailcable2• 13 years ago

A judge can overrule your right to free speech? By limiting that reference to free speech? Hmmm.... For amendments to constitution I think the closest workaround they get is...

Circumventing the 5th amendment by granting immunity then imposing contempt of court.

Sounds like great grounds for appeal.

mh-• 13 years ago

Read the first paragraph here:

https://en.wikipedia.org/wiki/Jury_instructions#United_State...

Summarized:

Under the American judicial system, juries are often the trier of fact when they serve in a trial. In other words, it is their job to sort through disputed accounts presented in evidence. The judge decides questions of law, meaning he or she decides how the law applies to a given set of facts.

The jury instructions provide something of a flow chart on what verdict jurors should deliver based on what they determine to be true.

Often they are much more complex, although certain elements frequently recur. For instance, if a criminal defendant chooses not to testify, the jury will be often be instructed not to draw any negative conclusions from that decision.

DannyBee2• 13 years ago

Because the first amendment does not apply to private property? It's completely irrelevant. Here, the judge is rightfully trying to avoid having someone try to confuse a lay jury about the law. Otherwise, he'd have to spend a lot of time trying to cut off the lawyer, or write up very complex jury instructions explaining first amendment law, when it's simply not relevant at all to private property, or this case.

There are certainly cases of vandalism of private property where it may even be an issue (if the property involved was owned by people acting as agents of the state/federal government, etc), but this isn't one of them.

Honestly, the fact that this question is being asked repeatedly proves the judge's point: People don't understand where and when the first amendment applies, and where it clearly doesn't, the only possible outcome is to confuse the jury.

PavlovsCat6• 13 years ago

This is shameful..

I've been caught by cops twice with chalk. In Berlin I drew a silly heart flying above clouds. at night while talking on the phone and paying zero attention to anything else for like an hour, as somone taps me on the shoulder and says "don't be scared, plainclothes police". I told them what it was and that it was chalk, one tested it with his finger, and then when I took a photo of it he even said "oops sorry" for having smeared it a little before I could take that photo. Friendly doesn't even come close to describe it, it was unreal. They said I should wash it off, because if it was still there the next day, the owner might complain to them and then they would have to act. They also asked why I did it, I truthfully answered "heartache", they wished me good luck and we parted with ^_^ faces.

The second time was in South Germany, in a rather rich little town, where I basically attempted to fill out with chalk a red heart outline someone else had sprayed there (onto a the wall of a small bank, too). They were all "well well well, look what we have here", and even took my chalk to "send it to the state attorney's office for analysis". But 1-2 hours later they called me up and asked the same thing the Berlin cops asked of me: just wash it off and it never happened. I guess they realized that in this case it just wasn't worth the paper work, or needlessly mean - but their first instinct was of the stereotypical bored police who found someone they could have authority over.

I get that a heart is different than words (though it really depends on the words, doesn't it). But still. It's chalk... CHALK! Is it a wonder we can't have nice things, when people are afraid of chalk more than of locking someone up? Seriously, wat? Even the silliest Javascript quirks make perfect sense in comparison.

And to think, I actually tried to encourage others, for a while I was convinced everybody should carry chalk with them and paint little things everywhere. Oh well, don't try this in police states I guess. Oh, I know, people like to say it's not their decision, it's the law, yadda-yadda, but that's just not true:

Criminals do not die by the hands of the law. They die by the hands of other men. --- George Bernard Shaw

The same goes for rather innocent people, and prison or fines instead of death. Saying it's okay per definition because it's on the law books doesn't make it okay, it makes you a you-know-what.

anigbrowl21• 13 years ago

Don't rely on this poorly-reported story for your facts, and definitely not for your legal information.

dsrguru• 13 years ago

What makes you say that? The reporting in the OP's article seems quite accurate:

http://www.huffingtonpost.com/2013/06/25/jeff-olson-californ...

PavlovsCat6• 13 years ago

Thanks for your concern, but I prefer to rely on paying attention to the world I live in for my guesstimates. It's so much nicer than not seeing the woods for all the trees.

Don't rely on drive-by one-liners that point out some random point at best to be anything but transparent. If you have any additional facts, what are they? If you don't, what is this?

I made experiences with chalk and cops that have actual criminals to catch, and cops that have big fat property and malls to patrol. Anecdotal, yes, random, maybe, but still mostly for those who get the point, or have experiences of their own to contribute; anything more than just cheap shots from cheap seats to stifle discussion you don't like to see others having.

What legal claims did I even make? What exactly is that supposed to be a response to?

Natsu2• 13 years ago

For those who prefer a more lawyerly take on prosecutorial discretion (or the lack thereof) displayed here, there's an article about this on Popehat:

http://www.popehat.com/2013/06/26/an-exercise-of-prosecutori...

jamesmccann• 13 years ago

The fact that the defendant used "washable chalk" does not make him innocent of vandalism, as some are suggesting.

Chalk can stain the side of a building if repeatedly used in the same place. Washing the building will reduce the chalk to a faint smudge, but restoring the side of the building to its original state before the offending still requires repainting/resurfacing in the same way cleaning spraypaint would.

In regards to limiting the use of the First Amendment - the right of the defendant to express his views have not been violated. The First Amendment has nothing to do with the vandalism charges he faces. He could have expressed his views over a medium that wasn't illegal, allowing him to defend himself via the First Amendment, but then he wouldn't have a need for defence, would he?

cgag• 13 years ago

13 years wouldn't be reasonable if he wrote it in someone else's blood.

mpyne3• 13 years ago

As is repeatedly mentioned every single time a legal case hits the HN airwaves, the maximum sentence one might compose by sequentially stacking maximum penalties for all charges is not the sentence that is anywhere close to possibly being handed down for real.

From one of anigbrowl's comments on here: " The maximum penalty for vandalism in California (which is what this case is about) is 3 years. It isn't possible to get a 13 year sentence for vandalism in California. In fact, since the defendant has no previous convictions for vandalism that I'm aware of I'm pretty sure the maximum penalty that can be imposed under CA law (CA PC 640.5/6) is community service and a $1000 fine. "

https://news.ycombinator.com/item?id=5956128

moflo• 13 years ago

I think the point was that the bank's claim that $6,000 was spent cleaning the sidewalk is bogus. Regular chalk is indeed difficult to remove from porous surfaces like brick or concrete, but this type washes off in the rain. My kids use it regularly on our patio, which at the moment is spotless despite my expending zero effort removing their previous artwork.

aunty_helen• 13 years ago

Falling Down anyone?

drivebyacct2• 13 years ago

Oh for shame! This was debunked on reddit before it was even submitted here. :/

joshuatree123• 13 years ago

America: The Land of the free. :) :)

smegel• 13 years ago

So just to be clear...the constitution only applies when permitted by a given piece legislation? Strange.

uxp• 13 years ago

The 1st amendment has never applied to disagreements between two private parties, but rather between one party and the Unites State government.

So, yes, the constitution applies only when permitted by it's own words.

DannyBee2• 13 years ago

The constitution protects people from the government. Not people from people.

ako• 13 years ago

Romani ite domum

mikegagnon• 13 years ago

Is the United States becoming less free, or has the US always been like this and I'm just noticing now?

eksith• 13 years ago

Judge Howard H. Shore :

http://www.sandiego.courts.ca.gov/portal/about/depts/sd15.ht...

http://www.sandiego.edu/law/academics/faculty/bio.php?ID=663

http://www.martindale.com/Howard-H-Shore/220226-lawyer.htm

This previous case will tell you exactly where he stands on those "hippie types" he despises.

http://www.safeaccessnow.org/article.php?id=6128

This man is an affront to justice.

anigbrowl21• 13 years ago

No, it doesn't tell you anything like that. It won't tell you much about the law either, considering that they don't even bother to cite the case in question so people could read the documents for themselves. It's a press release, not an objective report.

Now, I have got up in front of a city planning commission to advocate for medical marijuana clinics (which were subsequently approved). I'm heartily in favor of medical marijuana. But if you have an amount of marijuana growing on your property that exceeds the amount you are allowed to grow for medical purposes, then you can't rely on the medical defense as a matter of law. That's why smart marijuana growers take the advice of their lawyers and establish a growing cooperative which allows them to pool their legal growing allocation in a shared facility.

There are rules about how much pot you can grow for medical purposes, just like there are rules about how you can sell alcohol and tobacco. If you ignore those rules then you're liable to get fined or even jailed. You can't break the rules and then invoke those same rules as part of your defense - this is criminal law 101.

Rather than him being an affront to justice, it's you who have no understanding of how criminal law operates.

readme• 13 years ago

What he did was wrong, but the punishment is not right. We know how the saying goes.

The appropriate punishment would have been to force him to clean the chalk off.

That's also the appropriate punishment for any vandalism. A written apology and reparations for the vandalized property.

What I don't agree with is the idea that using chalk makes it "not vandalism" -- it still is vandalism. The punishment is absurd, though. Obviously BOA has heavy influence over the authorities in this case.

mtgx• 13 years ago

So he's such a danger to society that he needs to be put in prison for 13 years? God forbids he might be involved in another protest against the banks in the future!

vampirechicken• 13 years ago

Tonio K said "you never tangle with the ruling class unless you;re prepared to take it..."

Man faces 13 years in jail for scribbling anti-bank messages in chalk

Related Stories