To: People who have been arrested while participating in political activity as part of Occupy Wall Street From: The

National Lawyers Guild New York City Chapter, Mass Defense Committee Date: November 7, 2011 Re: Notes from arrestee informational meetings held on October 30 and November 4 in NYC ______________________________________________________________________________ Two meetings were held by members of the Mass Defense Committee of the NYC Chapter of the National Lawyers Guild. Elizabeth Fink and Marty Stolar introduced the work of the Mass Defense Committee, which has provided legal support for people arrested while engaged in political protest since 1967 (including sending green-hat Legal Observers out to protest events). Fink and Stolar provided explanations of what to expect in the course of your court case, and answered many questions from the audience. The purpose of this document is to consolidate the information shared at these meetings for people who were unable to attend, and to serve as a refresher for people who were in the audience. Please note that nothing in this document constitutes legal advice, but serves only as legal information. The Guild will assign a lawyer to represent you at your court appearances if you wish, and that person will be able to advise you of ways to proceed with your case. As of this writing, there have been nearly 1200 arrests for protest activities connected to Occupy Wall Street. More than half of these occurred on October 1 at the Brooklyn Bridge; another 80 happened near Union Square; the remainder have been smaller numbers, connected to many different rallies, marches, and other expressions of political speech. Most arrests have been for violations, which is a level of offense lower than a misdemeanor. Although the charges are minor, the prosecution still has to prove beyond a reasonable doubt that the person arrested committed the elements of the charge, and Guild attorneys believe that in most cases, the prosecution will have a difficult time meeting their burden of proof. Based on this, the Mass Defense Committee had a meeting with the District Attorney’s office suggesting that most of these arrests should be dismissed in the interest of justice. The DA’s office rejected this suggestion, and instead said that everyone who was arrested on the Brooklyn Bridge or near Union Square and who received a Desk Appearance Ticket (DAT) for disorderly conduct would be offered what is called an Adjournment in Contemplation of Dismissal (ACD). What is an ACD? An Adjournment in Contemplation of Dismissal is a way of resolving a case in which the defendant doesn’t make a plea of innocent or guilty, but instead agrees to avoid an arrest for six months. After the six months is over, the case is dismissed, and the record of the arrest is sealed. However, if the defendant is arrested again in New York State within the six months, the earlier charge is revived, along with the later charge. The decision whether to accept an ACD is an individual decision. Some people find that an ACD feels like probation, creating reluctance to join in other protests; these people might consider refusing the ACD. Others, who are not tied to staying in New York, or who have other issues which might encourage them to avoid arrests anyway, might want to take the ACD. The refusal


to take an ACD moves the case along to trial, which can be an extended process involving multiple trips to the courthouse over several months. However, the idea of mass defense means that an individual’s leverage with the court increases as the number of people acting in unison increases. If people want to take their case to trial, the Guild has enough attorneys to handle it, who will not charge for the case. What happens with a criminal case? The first phase of a case is the arraignment, where you appear before the judge with a lawyer and are advised what the charges are against you, although the actual conduct supporting the charge is not known until the DA draws them up in the criminal complaint against you. There could also be a discussion of bail, but this won’t be an issue with DATs or summonses, for which people are released on a promise to return on a given date. The next phase is the filing of pre-trial motions, such as motions to dismiss the case, motions to suppress physical evidence, motions to suppress statements, and motions requesting production of evidence held by the prosecution. These motions are heard by the court and can sometimes result in dismissal of a case. The final phase, once pre-trial motions are decided by the court, is the trial phase itself. Because the NYC courts are so congested, this can take a very long time, and people choosing to go to trial should be prepared to return to court 4-5 times before actually going to trial. A trial for a violation will be heard by a judge (this is called a “bench trial”), and a trial of a Class A misdemeanor can be heard before a 6-person jury. The NLG has a number of experienced lawyers who can take the more difficult cases, as well as newer attorneys who will want to add to their experience. We will be pairing up all these attorneys in order to expand the number of lawyers available to do this work. What should I do on the day of my court appearance? First of all, make sure to arrive early to allow time to go through the metal detector, which usually involves waiting in a long line. Look for people in green Legal Observer hats who will direct you to the right courtroom, check you in, and tell you who what lawyer be representing you. Most lawyers will be handling a number of cases, so you may be part of a group conversation prior to the actual appearance before the judge. You don’t need to bring any special papers to your first appearance. There is no need to wear a suit to court, but you should observe “appropriate courtroom decorum” to avoid being asked to leave by court officers. At the initial appearance, if your case is not dismissed or you don’t take an ACD, you will be given notice of your next appearance date. Make sure to check out with one of the Green Hats before leaving the courthouse, letting us know the outcome of your appearance and your next court date. Other Frequently Asked Questions: What if I cannot appear for my court case? The court will allow an attorney to appear in the defendant’s absence if the defendant has stated a valid reason for not appearing in person, and has provided a signed affidavit explaining this reason and giving the attorney permission to do so. Valid reasons generally include things like


living out of state or having final exams or similar pre-scheduled events. If you live in or near New York City, it is unlikely that work or mere inconvenience would be seen as a valid excuse by the court. If you think you have a good reason to miss your appearance and wish to proceed with the affidavit, please call our office at 212-679-6018 and we’ll instruct you further. If the date offered by the court at your appearance for your return doesn’t work for you, say so on the spot and the court will try to accommodate it. Be aware that a failure to appear at your court date will often result in a bench warrant. What if I’m arrested again before my appearance date? Will this mess up my ACD? If an ACD is offered, it will be in effect for six months going forward from the date of the appearance, and will not be effected by any other arrests prior to your appearance. However, if you get arrested again after taking the ACD, the earlier case will be re-opened. If you are arrested and have another case already open, this may increase the likelihood of the DA asking for bail or offering a plea bargain, such as pleading down to disorderly conduct. Either way, Guild attorneys will take care of you the best we can. Is there any financial hardship imposed if I take an ACD? No. There is no fine imposed with ACDs in these cases. Sometimes community service is required as part of an ACD, but this wasn’t part of the offer discussed in the meeting with the DA’s office. If I was arrested somewhere other than the Brooklyn Bridge or Union Square, will I still be offered an ACD? The offer made at the meeting with the DA only covered these two places, but it is very likely that the offer would be extended to other arrests for disorderly conduct (such as those at Times Square). This will probably not be known for sure until the arraignment date. If I don’t accept an ACD and am found guilty of the charge, what will happen? This depends on what you are charged with. If you are found guilty of disorderly conduct, the maximum sentence is 15 days in jail or a $500 fine, along with a mandatory surcharge of $120. The experience of seasoned NLG attorneys is that people involved in nonviolent protest activity do not get jail sentences unless they seriously anger the judge at trial. If I don’t accept the ACD, can I just plead guilty in order to rejoin the demonstrations? If you refuse an offer of an ACD and plead guilty, you can be subject to paying a fine and the $120 surcharge, and your attorney would likely also suggest a sentence of time served. A disorderly conduct charge will stay on your record for one year, after which it should be removed from the public records. However, if you are arrested again, the DA will notice that you are a “serial protestor,” and might have a harsher attitude about your case. What if I’m not an American citizen? If you are not a U.S. citizen, you could be at additional risk of potential deportation or the denial of a citizenship application. The NLG has skilled immigration attorneys who can talk to you about the details of your case, and you should contact us about arranging a conversation with one of them.


If I go to trial, will I have to sit around the courthouse all day on my appearance dates? Generally, no. Cases are usually called at 9:30 each morning, and if you and your lawyers are there early and the prosecution isn’t ready, the case can be adjourned right away. It’s possible that you could be out by 10 or 11 AM. For example, on the first big appearance day, over 75 cases were called, all of which were done by noon. What if I was physically mistreated by the police while in custody? Three remedies are available: 1) you can call the Bureau Internal Affairs of the NYPD and demand an investigation of the officer. This probably won’t provide much satisfaction, and you’ll become a witness in the internal investigation. 2) The Civilian Complaints Review Board also conducts investigations of police misconduct, but if a finding is substantiated, they just report their findings to the police department, who have the responsibility to discipline the offending officer. 3) Civil suits against the police department. While there are a number of potential claims for civil damages possible against the NYPD, Guild attorneys don’t recommend filing any such claims yet. If you do choose to file a civil complaint, it is better for your case to wait until the criminal case is complete before commencing the civil case with your lawyer. This is because if you decide to testify at your criminal trial, you may be cross-examined about your financial interest in the outcome of the trial. I was arrested on the Brooklyn Bridge. Do I need to sign up for the class action lawsuit? The Partnership for Civil Justice has filed for a class action suit, but so far no class has been declared, so there is nothing to join at this point. Guild attorneys suggest that it is wise to wait for your criminal case to be disposed of before joining any lawsuit. Can I post my experiences on Facebook, YouTube, or other social media? Guild attorneys recommend against it. If you have an open case, the police will very likely search your digital posts for any inconsistent statements, which they will use to attack your credibility. Also, if you intend to file a civil case, you can be subject to cross-examination about a potential financial interest in the outcome of your criminal case, and the court could find that you are tailoring your testimony to maximize the damages in a later civil case. In general, the less information the police or prosecutors can get from the internet about your case, the better. My arresting officer at the precinct wasn’t the same one who actually arrested me. Can I use this to get the case thrown out? There’s a good chance of it, but this will only arise at the trial, and isn’t sufficient for any pretrial motions to dismiss. Do I have to wait for my first court date to be assigned a lawyer? Unless you were put through the system and arraigned at the time of your arrest, you should wait until your first court date to get your lawyer. If you were arraigned at the time of your arrest, your arraigning lawyer will continue to act for you throughout your case.


If I am applying for a job or school position and the application asks whether I have been arrested, do I have to say “yes”? It depends on the question. If it asks about convictions and you take an ACD or are still in court, there is no conviction and you can say “no.” If it specifically asks about arrests and the case is still pending, you need to say “yes,” but you should get a chance to explain the circumstances of the arrest. A few professions, including the legal profession, will inquire both as to arrests and to convictions, but generally job and school applications are primarily concerned with convictions and not arrests, particularly for the low-level violations most common in the OWS cases. Is there a way to deal with these cases collectively and show solidarity? Yes. At the first court appearances in early November, nearly everyone turned down the ACD and said they wanted to take their case to trial. This increases the leverage of these defendants. Also, judicial efficiency causes the court to usually give the same return dates to people heard on the same day, so it is likely that people going to trial will appear at the same time, allowing for more solidarity. ______________________________________________________________________________ The National Lawyers Guild is the oldest progressive bar association in the United States, formed in 1937 by a group of lawyers upset that the American Bar Association would not admit “Negroes” into the ABA. The Guild adopted the principle that human rights are more important than property rights, a principle that still guides our work and resonates with the motivating ethos of Occupy Wall Street, which is why we do what we do, providing free legal services to people who are arrested while engaged in protest activity. More information about the New York City chapter of the Guild is available at


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