Worcester #blacklivesmatter Trial: the notes

posted by Mike on January 7th, 2016

Update Jan 21, 2016: Verdict: Conner, Gibbs, and Jones “adjudicated responsible” and fined $100 each, Ksen “not responsible” and not fined, seeing as how he was in the street only briefly. Here’s the MassLive writeup. I predicted they’d all be found responsible; I was wrong.

The civil disobedience: January 19, 2015 (Martin Luther King Day), around 20 people blocked Worcester’s Kelley Square for 4.5 minutes to represent the 4.5 hours Mike Brown’s body lay in the street in Ferguson. Two months later, 4 of the protesters were charged with disorderly conduct and disturbing the peace.

The trial: began today.

The verdict: was not announced today. It will be mailed to the defendants.

My notes: are below, for what it’s worth.

I figured the trial would begin with jury selection, so I missed the beginning. As it happens, the judge began the trial by decriminalizing the charges, thus treating them as a civil infraction, lowering the burden of proof, and removing the option of a jury. In this case it didn’t change the penalty. I am told there were no opening arguments. The first witness was truck driver Bruce Davis for the prosecution. I missed the beginning of his testimony, arriving during the cross-examination.

[9:50am, Courtroom #22]

Mr Davis says the delay in Kelley Square made him 4 hours late and got him fired. Defense attorney Hector Pineiro is asking him how a 5-minute delay became 4 hours. He moves on. Possibly this issue was not settled during the trial. [As I am typing this, Womag is reporting he “was not fired for the protest’s delay.”]

The horn of the truck was loud? Yes. He ran out of air pressure from blowing the horn.

[Each of the 4 defendants has their own lawyer. 3 of 4 journalists, 7 onlookers.]

Could Mr Davis hear what they were saying? No.

Defense attorney Nathan Wong: How far were you from the protesters when you saw them? 2 car lengths. Other cars veered off, allowing him to approach.

Did you see the protesters threaten anyone else? No.

Another defense attorney asks some questions. Davis: I was blowing the horn just to drown out what they were trying to do.

Redirect (prosecutor): Would you have blown your horn if you were not blocked? No–maybe once.

Pineiro: Were you fired for how you behaved? No, my boss was impressed with my discipline under the circumstances.

Asks him about Black Lives Matter: yes he knows what it is.

Next witness: Beth Erickson of Charleton. Retired.

Prosecutor asks some questions. She was in Kelley Square, in a blue Acura, heading to Community HealthLink to pick up a relative in distress. Saw a group of young people on the sidewalk to the right. One or two were getting ready to cross. Thought they were a group of “disabled or something” people preparing to cross together. Stopped to let them cross. Saw pamphlets, heard singing, didn’t see signs. They came around the driver’s side to talk. She yelled at them to get out of the way, swore at them, was angry, frustrated, worried. She got out of her car to yell.

Everyone approaches the bench. There is a video screen in the middle of the courtroom at all times, which they frequently use to play video of the protest. This time, they are finding her car in the video.

People took photos of her car, she thinks the license plate too.

When they left the road she drove down Chandler and met her relative who was walking down the street.

Pineiro: You saw no signs? No. Did you think it was a protest? Not till they told me.

Had her car stopped by the protest for “about ten minutes.”

Drove her car to within a foot of them. Was the truck’s horn annoying? Yes. Did the protesters swear at you? No.

She told the girl at her window she was trying to get to the hospital to see her granddaughter. “–You have no car seat.” “She’s in the ER…. Would it matter to you if I told you she was black?” No reply.

(Considering this protest made way for an ambulance, I’m surprised they didn’t make way for her as well.)

Cross-examination: She says there were no cars in front of her—one car did go around the protest via the sidewalk.

They watch the video trying to figure out the movements of her car.

Defense shows her a photo of her car, within inches of the protesters. “I did not intentionally drive into any protesters.”

Defense asks her to repeat her swears. “Get the fuck out of my way! What are you doing? I have to get through. I need to get through.” “–It’s only going to be 4 minutes.” Did they threaten her? No. Did they use a calm voice? Yes. I told them to stop putting pamphlets in my car and they stopped. “I was delayed longer than 2 minutes.”

Do you have a problem with Black Lives Matter? No. I have a problem with them blocking the street. There is a better way to go about expressing their views.

Establishes that the car horns were louder than the singing.

Next witness–>Sgt Anthony Maddox of the Worcester police. Supervises the Southeast Sector, 15-20 officers. 11:54 received a phone call about a protest blocking Kelley Square. “By the time I got there, the intersection was completely clear.” 2 officers were there when he got there. His captain later told him to do an investigation based on the videos to ID people and determine what charges to be brought.

He recognized some people from interviews in the local press. Sent the video out departmentwide.

IDed these 4 defendants. Had met Ksen at community meetings. Jones had been in the press. Same for Conner and Gibbs.

Watches the video. He points out the 4.

He helped ID some of the witnesses, then handed things off.

Pineiro: When did you first prepare a report? April. Why so long? He wasn’t the primary officer till later.

When he got to Kelley Square he spoke to Ksen. I said to Mr Ksen, “What’s up?” He replied they’d had a small demonstration and that it was over.

Why wasn’t the trucker charged with disorderly conduct and disturbing the peace? He wasn’t the primary obstruction.

The primary officer did file a report that day. [I think this is officer Charles Brace; my hearing is terrible, so there may also have been an officer Grace involved. The judge also asked for clarification about how to spell the officer’s name at one point.]

The next day Maddox met with his captain after roll call. Had it not been for that discussion, would he personally have charged anyone? No.

Defense: How many calls did the police get about this protest? Not sure.

Officer Brace isn’t in court because he has left the WPD and has a pending lawsuit against the department. There were some objections and I think this wasn’t allowed to be part of evidence.

In the video was Ksen in the street? Maybe 30 seconds, talking to the driver of a truck.

Defense: Was Conner primarily on the sidewalk? They slowly go through the video to see if and when she actually blocks a car. A few minutes in, she is part of a line of people blocking traffic, but not directly blocking any car herself.

Did you ID anyone else? No.

Defense attorney says Officer Brace IDed someone else as Conner in his initial report. (I think this report was entered as evidence, but nobody read it aloud.)

Prosecutor: Was there prior notice of this protest? No.

Defense: They weren’t cited for “unlawful assembly”? No.

The prosecution rests. The defense begins. (Yes this was a quick trial.)

First defense witness is defendant Robert Blackwell Gibbs, clerk and poet from Worcester, wearing a tan polo shirt. Pineiro has him go through a brief bio. Substitute teacher, father and guardian, community health worker.

Why did you get involved with the issue of Michael Brown’s death? It was traumatic. “There is no break, there is no reprieve, it’s in your face, everywhere you go.” As a parent, was offended they let Brown’s body lie in the street “without even a forensic tent.”

He was involved in marches and vigils previously in Worcester for people who were killed or injured by police. Spoke before City Council. These were peaceful events with no violence.

Was he an organizer of the January 19 event? Yes. There were 5 or 10 organizers. Met at Mosaic and at a coffee shop. People had various roles in the demonstration, including timekeepers to mark the 4.5 minutes. “If you feel this frustrated at being inconvenienced for 4 1/2 minutes, imagine how those parents feel.”

Pineiro brings up their flyer. 3 paragraphs. Gibbs reads it aloud.

What role did you plan to play? To flyer. Why? I can’t recall how that decision was made.

What happened with you and Mr Davis and his truck? The truck drove around several cars and approached the protesters. “I was worried and I was nervous and I wanted to distract him from what he was doing…. I wasn’t sure if they would get hit, if he would roll back, if he would make a mistake.”

Gibbs jumped on the steps on the passenger side of the truck, grabbed the grab bar, shouted “Yeah!”, jumped right off, tried and failed to put a flyer in the grill. He went back to flyering, the truck moved forward again, he stood in front of the truck with his hands up.

When the 4 1/2 minutes were done, they went to a potluck. He didn’t talk to any police that day.

Prosecution: Were you at the meeting where the date, time, and location were picked? Yes.

You weren’t part of the chain blocking the traffic? Correct. Moved all around Kelley Square handing out flyers. “Many drivers were with us, not angry, and willing to wait.”

Next witness: Julius Jones, in a white hoody. Clarkie, employee at a nonprofit that helps start and run co-ops. Previously a youth worker. Are you black? “I am black, yes.” (FWIW, the other 2 black people on the witness stand were Gibbs and Sgt Maddox.)

Some discussion of Black Lives Matter, slavery, emancipation, white supremacy. “I am the founder of the Black Lives Matter Worcester Chapter…. I, in my life, have experienced racism throughout…. I am pulled over an average of 4 times a year, and have had 1 ticket, over the past 10 years.”

They discuss the process of planning the demonstration. Roles: blockaders, de-escalators, flyerers, police liasons, emergency vehicle lookouts. There was a “chain” of lookouts up each street and in the middle of the square. His role was as a blocker initially, later as an emergency relay person. One ambulance arrived and was let through. “It went flawlessly.”

The de-escalation worked, with “a few notable exceptions.”

Regarding Ms. Erickson: “She literally hit me with her car…. I was at the spot next to the curb.” She hit him and the person next to him. “She said, ‘If you don’t get out of my way, I’m going to hit you,’ and she did.” He didn’t threaten or engage with her. He made eye contact with the de-escalator to let them take care of it. “Anti-black sentiment is real…. I didn’t want to be the subject of violence.”

Other drivers were turning around and taking other routes. “The truck driver came from way back, around a bunch of other cars, and ended up blocking other cars in.”

Julius sings “I Can’t Breathe,” the song they were singing. “I could barely hear myself sing” over the car horns.

Defense brings up another video of the protest. We couldn’t see this one, not sure what it was.

Was traffic stopped in both directions on all the streets? From what he remembers, the offramps and the inlets from Chandler and Green. “There’s about nine ways to not go through Kelley Square.”

At the very end, as they were leaving, he saw 2 officers. “I waved. I think one of them said Hi to me.”

“I’m ashamed it took something so violent [as Mike Brown’s death] to get me activated.”

Do you feel your personal safety at risk from police? “Definitely.” Describes a bad experience with the NYPD earlier this year when dealing with his late mother’s apartment.

Cross-examination: Clarifies that people with expertise in nonviolent direct action were involved in the planning. (I have no idea what this line of questioning was about.) Some discussion of why they chose Kelley Square, Julius wanting to avoid having words put in his mouth. “You wanted to make an impact?” “Correct.”

Some back and forth on the “purpose.” “A by-product was blocking traffic. That was not the primary goal.”

He had a “personal PA system.” None of the people there were arrested? “No one has ever been arrested, ever, in connection with this.”

Redirect: PA was to communicate between protesters if traffic was loud.

Pineiro: How far away was the row of protesters from the front of the truck? 6 feet, then the line backed up. The truck inched forward a bit, but not a lot.

More conversation on the disruption from the truck horn.

Did you find Mr Gibbs to be disruptive to you? No. Was he threatening anyone? No.

Did you meet with the WPD afterwards? He went to the WPD, the Mayor, and the City Manager. Had a meeting with the Deputy Chief Sgt and City Manager Augustus. His takeaway was that if they didn’t agree to a deal with the City not to do these sorts of things anymore, people would be charged.

(Jones here talked about someone making direct threats to him, not sure when this was.)

Next witness: Kevin Ksen. He introduces himself at length. He needs no introduction.

Talks for awhile about how he’s motivated by his Catholicism and belief in nonviolence. Namechecks the Berrigan brothers and Tom Lewis.

Over and over, Ksen will be like 3 minutes into a story, and the judge will interrupt saying, “Let him ask you another question,” and the lawyer will scramble for the next thing he wants to ask. This is hilarious.

He is an experienced protester and organizer, etc etc.

He goes through the whole “Fox COPS” brouhaha till the judge moves things along.

They talk a bit about the MLK Breakfast earlier that day.

He wasn’t an initial organizer, but was invited to participate and be a liason with the police, along with Michael True, one to each side of the line.

“You were not a blockader?” “I was off on the side.”

Initially he talked to the owner of an adjacent pizza place.

Saw the trucker leaning on the horn when he was partway through the square. He was behaving in a worrying manner. Passed at least 5 vehicles on the wrong side of the street, then “angled in towards the protesters…. Other cars that were there did a U-turn and left.”

Then he approached the truck, motioned to roll down the window, which the driver didn’t do. So he went back to resume his role at the side. Were you blocking any cars in the road? No.

Did you stay in Kelley Square after? Yes. The police vehicles arrived, stopped in Kelley Square as the protesters were walking away. A fourth vehicle arrived. He approached the police and told them it was all over. Then he said the same thing to Officer Brace.

Judge keeps trying to move this along.

Did you threaten anyone? No. Did you hear anyone else threaten anyone? No.

Defense rests.


Pineiro for the defense: “This is a case that goes to the core of the First Amendment.”

“The highest impact that they could have was in the intersection of Kelley Square.”

He gets into the 3 requirements for one of the charges (I am confused here) which are apparently (1) conduct that most people would find unreasonably disruptive (2) intentionally (3) that inconveniences/alarms/annoys someone.

He admits that #2 and #3 are true here, but argues #1 is not, because they were generally organized and polite (aside from blocking the road). This is “conduct not contrary to the standards of conduct we have in a civilized society.”

Wong for the defense: Mentions people taking to the streets to celebrate Bin Laden’s death, and that incident where the police and firemen blocked the interstate in Massachusetts in the early 80s. Nobody was charged–“It was protected speech.”

Efforts were made to de-escalate, there was no foul language. Commonwealth must show that the issue of police violence is insignificant compared to the inconvenience caused.

Another defense attorney: They are not charged with making a disruption but an “unreasonable disruption.” Their actions were nothing if not reasonable.

Peaceful, organized, orderly.

Mr. Ksen in particular didn’t block any cars, and only entered the road briefly. None of the defendants should be found guilty.

Last defense attorney: “All protests are are by definition disruptive.” “The touchstone here is reasonableness.” Reiterates the level of organization. Who was unreasonable, the people holding hands and singing, or the people threatening violence and hitting people with cars. Ms. Conner herself was not blocking any car. Not a single person testified they were annoyed at her behavior.

Prosecution: Find them all responsible for disturbing the peace. (In this situation they are not “found guilty” but “adjudicated responsible.”)

You have heard how people were disturbed by their actions. You have seen how hostile drivers became, and none of that would have happened if not for the protesters’ actions.

Streets and sidewalks are a place for the First Amendment, but restrictions can be made on time, place, and manner.

There are a lot of places they could have done this, besides the most dangerous intersection in the city.

Judge them on their conduct, not on their message.

Judge: I’ll make my decision, and notify everyone by mail.


My prediction here is “adjudicated responsible.”

I have seen people beat charges like these if they are mis-charged, that is, the prosecution proves they caused problems but not the ones they’re charged with. Maybe lawyers slow things down for a jury, and maybe this happened before I was in the courtroom, but I really expected the prosecutor to ask every witness about every component of every charge against every defendant, just to make sure nothing was missed. “Was Mr Ksen behaving in an alarming manner? Ms Conner? Mr Jones? Mr Gibbs?” A couple of these people were pretty clearly guilty of “conspiracy to disturb the peace” but were not really doing anything disruptive at the protest. So it’s possible they could be found “not responsible” because the prosecution didn’t prove some aspect of disorderly conduct. Doesn’t seem likely to me.

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