When is a tent and tarp camp just a squatter's camp and when does it become a protest, with all the free speech rights granted under the U.S. Constitution?
That's the question at the heart of a trial of three self-identified homeless people-who are also advocates for the homeless-that was delayed at the last minute Tuesday morning, just before jury section was to begin. The three were arrested on May 17 for trespassing in Town Square Park. One of those arrested is 41-year-old John William Martin III, a man who is well known for protests on the sidewalk in front of City Hall.
Martin is also widely known for being on Alaska's sex offender registry. Martin served eight years in prison after a 1995 conviction for 13 counts of sexual abuse of a minor. He was 23 years old and his victim was 15 at the time.
Martin says he is reformed. He also says he was called by God to advocate on behalf of the homeless. He's received a fair amount of media attention since Anchorage Police began cracking down on homeless camps in summer 2010, enforcing new and stricter anti-camping laws. Martin's co-defendants are 43-year-old Brent Baccala and 34-year-old Margie Thompson, who has sometimes allowed Martin to call her his wife, although the two are not legally married. Martin and Thompson have been in a relationship for about 10 months. Sometimes things go bad and they break up, but Martin says he intends to stick it out. "I have been called the worst of the worst, so who am I to judge her?" Martin said. The two were together in court Tuesday and together on the street afterward.
Baccala entered Martin's circle sometime last year. He is a blogger and says he is also a freelance math tutor. He is shaggy haired, bespectacled and identifies closely with the Occupy movement. He says he spent much of the 2009-2010 winter at the Occupy camp in Fairbanks. In person and on his website, freesoft.org, Baccala sometimes blames himself for the failure of the Occupy movement to make real change. Baccala often quotes passages from the Bible, especially from the New Testament Gospels. He is both wired and inspired, so if his memory fails him regarding a Bible verse, he quickly finds it with his smart phone.
The night the three protesters were arrested, May 17, Baccala made a video recording of the proceedings and recorded audio later while inside the Anchorage Correctional Complex. (Anchorage Police also documented the arrest on video. It was an awkward proceeding in which no one resisted but no one cooperated, so police handcuffed the three and carried them to patrol cars.)
Martin, Baccala said, "is a leader on the [homelessness] front. He is what's left of the Occupy movement." Before this week's court hearings, Baccala said he had yet to meet an attorney face-to-face, but that's not uncommon for indigent defendants accused of misdemeanors such as trespassing. In early August, Baccala dropped his court-appointed attorney and substituted private attorney Byron E. Collins, of Anchorage.
The trial for the three defendants may be put off until late October, or more likely, until November or December. The delay came Tuesday morning, and was provoked by a last-minute proposition from Collins, who wants special jury instructions to be ruled on before oral arguments begin.
Collins asked a judge for jury instructions that would force the city to prove Town Square Park, at least after its official 11 p.m. closing time, is not an appropriate place for a protest. The way city code is written, it is up to the defense to prove the "time, place and manner" of a protest is appropriate in order for the three to be found not guilty. Collins wants that burden of proof shifted to the city, so the prosecutor would have to prove the protest took place at an "unreasonable time, place or manner" under city code.
Tuesday morning in the courtroom of Anchorage District Court Judge Gregory Motyka, the defendants sat in a circle behind the defense table, held hands, bowed their heads and prayed together while the attorneys chatted. Judge Motyka got word of Collins' last-minute motion and arrived to hear Collins himself speak-from the get-go it was clear the judge was not happy with the delay.
"We are dealing with a unique affirmative defense with important First Amendment issues," Collins began. The attorney shared some paperwork among all the lawyers and the judge. Collins explained that a 2012 ruling in OSU Student Alliance v. Ray by the U. S. Court of Appeals for the Ninth Circuit says the government should be held to strict standards when limiting the time, place and manner of speech. The government must have more than a vague policy statement, the ruling says. Collins said Anchorage's law has not been changed to comply with the Ninth Circuit ruling.
Collins said he planned to ask Motyka for special jury instructions to compensate for the difference between Anchorage city code and the Ninth Circuit ruling. "Because we are dealing with the First Amendment, I think it is important that the jury instructions comply with the law," Collins said, adding, "I want to avoid any appeal issues and clarify the matter."
The first time Collins paused in his argument, Judge Motyka scolded him for bringing new information so late. "And so you waited until 30 minutes before we were going to pick a jury?" he asked the lawyer. Collins backpedaled and explained he was the last of three attorneys on the defense team. He said he only found the Ninth Circuit ruling Monday night, on the eve of the trial.
Ella Anagick, the attorney for Margie Thompson, was also surprised by Collins' plan, but told Judge Motyka that the case is centered on free speech rights and she would go along with the plan. "The case specifically speaks to the lack of standards [in city code]," Anagick said.
Municipal Prosecutor Cynthia Franklin told the judge it sounded as if the defense wanted to split the trial in two. "We did not anticipate that the court would try half the case and the jury would try the other half," Franklin said, adding, "all we can do is ask for time to respond [to Collins motion]." She also told the judge the city prefers this sort of scrutiny. "It's always good to test these laws," Franklin said.
Franklin declined to speak to the Press this week, but police records show she was aware of the case even before May 17 arrest. City Parks and Recreation Director John Rodda has also been involved. Rodda is among the people who told Baccala and Martin that Town Square Park closes at 11 p.m. Rodda and police officers told the protesters the city could give them a ride to a shelter and they were welcome to show up the next morning to protest again.
On the night of the arrest, police found empty beer cans and a marijuana pipe in the park, as well as food, tarps and sleeping bags. A synopsis of the arrest signed by Franklin says, "Defendant Martin stated he was protesting, but had no signs or anything indicating his protest or what it was."
There were signs, but police records indicate the city is not considering them evidence of a legal protest. A half dozen signs appear in the video and still pictures Baccala's posted on freesoft.org. All contain verses from the gospels of the New Testament, among them, Luke 6:30-"Give to everyone who asks you, and if anyone takes what belongs to you, do not ask for it back." Baccala said he chose gospel passages that he believes speak to how the homeless and poor are treated.
"The city policy makes it illegal to be poor-destitute would be a better word-but basically, they have made it illegal to not have money," Baccala said a few days before the court hearing. While he hadn't talked to an attorney yet, Baccala seemed well-schooled on the city trespass ordinance.
"I believe that a 24-hour sit-in in a park across the street from City Hall is a reasonable time, place and manner for a protest," Baccala said.
Thompson, the third defendant, said after the court hearing it was good to hear Collins in court, describing the encampment as a protest. "I think it's slow, but it's a flow that is going in the right direction," Thompson said, adding that Collins was "a blessing. Brent's lawyer is a real blessing."
The city's prosecutor is preparing to argue the defendants set up an illegal camp. They'll say it's a camp like the ones police have been instructed to break up since summer of 2010, when the city crackdown on squatters' camps used by homeless people accelerated. To enforce its trespassing rule, the city might also have to argue that displaying signs with Bible passages was not enough to turn a squatters' camp into a protest.