Maricopa County, AZ Arpaio Loses another Case of Selective Prosecution

August 7 at the Maricopa County Superior Court, Judge Armando Gandarilla listened to the first day of the "criminal trespassing" and "disorderly conduct" case against MCSA (Maricopa Citizens for Safety and Accountability) organizer Randy Parraz. The defense strategy is that Randy was targeted and selectively prosecuted and that his 1st Amendment right of Freedom of Expression was violated. Yesterday, Tuesday, August 11, Randy Parraz was acquitted of the charges of Disorderly Conduct and Criminal Trespassing.

Now the last case of targeted activists by Arpaio is the "MCSA 5" who are 5 individuals who were cited and arrested for clapping (Disorderly Conduct??) at the Board of Supervisors meeting on December 17,2008. That trial is scheduled for August 31st.

At the start of the trial and at the end of the trial, Judge Gandarilla reminded the public that "this is not a football game, there are no winners and losers." I mean no disrespect, but the score for the cases of Arpaio and the MCSO acting as Judge and Jury are: Public:6 Arpaio, 0.

Judge Gandarilla made the decision to uphold the defense motion for acquittal at the end of the State's case after prosecuting attorneys said "State rests, no further witnesses." At that point, defense attorneys filed a motion under "Rule 20" for acquittal. Rule 20 requires the Judge to decide the motion before proceding. There was discussion as to how long the Court needed to review the motion, an hour, a day, two days? The Judge decided to recess to review the motion and returned over an hour later. He determined that the State did not make its case.

The Judge stated that his decision was based on the fact that the Board of Supervisors did not call Randy Parraz or anyone else "out of order" during the meeting. Furthermore, the Judge determined that the case for disorderly conduct was unsubstantiated when Randy was escorted from the Auditorium and that Randy was "walking slowly." as Chief Deputy David Trombi of the MCSO testified. Then, whenBoard of Supervisors Chair Andrew Kunasek called a recess, Judge Gandarilla stated that this is not an indication or determination that a person is "disorderly."

Regarding the Criminal Trespass charge, Judge Gandarilla stated "if there are no grounds for 'disorderly conduct' then there are no grounds for 'criminal trespass.'

Judge Gandarilla summarized that there are a range of ways to express disagreement from "passionately expressing one's point of view, to rudely expressing one's point of view" but that conformity in a public meeting should not be determined by law enforcement. Judge Gandarilla questioned who is in control of public meetings and "we are in real trouble when it is law enforcement and there is no real threat when people are trying to come to agreement on public issues."

Before the decision on the motion, both the Defense and the State presented oral arguments on the motion for acquittal.

First, the Defense stated, there are 2 arguments for acquittal and there are 2 charges.

Regarding the Disorderly Conduct charge, the statute cited by the State requires "protracted" utterances and it was noted that the utterances by Parraz were a total of 6 seconds and the State failed to provide proof of "protracted" disturbance. Secondly, the "transaction of business" was not prevented; the Board of Supervisors reconvened in 22 seconds after the "utterances" and the business of the Board of Supervisors meeting was not prevented as charged by the State. Further, regarding the "intent to have business transacted" Randy Parraz asked to have business transacted and was prevented. Randy was prevented from conducting business not the Board of Supervisors. And, lastly, the charge of disorderly conduct is "not devoid of First Amendment principals." The "right to speak before elected officials are critical" and the utterances were not protracted enough given the First Amendment right to petition the government for the regression of grievances.

Regarding the Trespassing Charge, the defense focused on the First Amendment principals, for Trespassing, the person should enter or remain somewhere unlawfully. What he was doing when he was being questioned by the MCSO at the landing area of the Auditorium was exercising his First Amendment right asking "why are you asking me to leave?" He was not, as presented by the State, remaining unlawfully.

Referencing Case histories, based on Houston v. Hill, a person has every right to criticize police officers and challenge them unless the challenge will be "a serious and substantive evil." In this instance, we see several officers in dialog with Randy, and then the arresting officer, Cesolini, who was uninvolved with the dialog, decided on his own that the dialog was over and made the arrest. It is a 'reasonable' request for Randy to ask 'why' he has to leave. Defense stated that Randy asking 'why' is because he knows his rights and complying without asking 'why' to with law enforcement is NOT the law of the land.

Next, the State addressed the motion for acquittal. The State attorneys stated that there was 'sufficent evidence for the Case to procede.' They cited evidence such as when Randy was escorted by the Maricopa County Protective Services, which Randy slightly turned back toward the Board of Supervisors as evidence of disorderly conduct. And then that he was not acknowledged and that Kunasek was not able to continue with the public meeting. They cited safety concerns of the MCSO, which the situation was escalating and that if everyone would have exited the Auditorium at once; it would have constituted a danger.

Finally, the last argument of the State was the Case of the Gun. Reaching for a reason to defend why the MCSO acted so severely in arresting Parraz, the State argued that his asking "why" (he had to leave) put the entire situation into dangerous jeopardy. Their argument stated that if a police officer ordered someone who had a gun, to hand over the gun, that it would not be right for someone who had a gun to dialog with the police officer. Similarly, if Parraz was being asked to leave, that it would not be right for Parraz to dialog with the police officer. Argument rejected as spurious.

The scene was set for the arrests by Chair Andrew Kunasek who sent a letter to the MCSO requesting to provide law enforcement at the September 29th meeting. The letter to the MCSO sets up the Defense position of Selective Prosecution. The Supervisors used the law to eliminate dissent and by prosecuting leader of the MCSA, Randy Parraz.

There were two witnesses who testified on the first day. The Chief of Maricopa County Protective Services (MCPS), Jordon Dactuisto (with since 1994) was the first witness. He was the one who escorted Randy out of the Supervisors Auditorium. The second witness was Chief Deputy for the MCSO David Trombi (18 years) who made the demand that his subordinates, Deputy Sheriff Sesollini and/or Deputy Sheriff Hall to take Randy into custody (to use his phrase stated on the video Exhibit "make him a 42"). Deputy Hall and Deputy Sesollini were confused by Trombi, he stated in testimony 'they both have shaved heads.'

There was an item at the previous BofS meeting on September 17th concerning the contract of the MCSO with the City of Guadalupe. The September 17 meeting was shut down due to the MCSA demands to discuss the topic of the City of Guadalupe as dozens of MCSO deputies lined the front of the Supervisors Auditorium. The question of the relevance of the September 17th meeting was challenged by the State Attorney. The judge ruled that he would allow the events of September 17th to be admissible to permit an overall perspective of the circumstances of the September 29th arrest.

At the September 17th meeting, the MCSA had nearly 100 people in attendance at the Supervisors Auditorium. Anticipating the turnout of the MCSA, the BofS called in nearly 50 MCSO deputies. The Board of Supervisors had no intent to answer to the public demand to discuss the Sheriff. At all of Board of Supervisors meetings, Captains, Chief Deputies and Arpaio were making decisions. They used the circumstances for their political and personal advantage, the precise reason the MCSA was trying to be on the Board of Supervisors agenda.The MCSA had small signs to be on the agenda and many of the members of the MCSA called out, informally, the reasons why the BofS should discuss the Sheriff's contract.

The MCSA had lobbied prior to the meeting and at the meeting and still was not allowed to be on the agenda. At the end they stood up and sang "God Bless America" and then walked out. You can read about that meeting here: http://blogs.phoenixnewtimes.com/bastard/2008/09/day_of_outrage_the_supes_lockd.php,

From the video tape shown during the testimony of witnesses, the disorderly conduct charge was from an incident when Board of Supervisors Chairman Kunasek stated there would be no discussion on the item of Arpaio and MCSO services with the City of Guadalupe. Then, upon the initiation of the public outcry, Kunasek immediately held up his gavel, knowing that he had set a trap where the Protective Services would go into action and the MCSO would follow through with arrests.

Viewing the video tape, Randy stood up as well as others in the Auditorium; he asked "why can't we talk about this? Are you going to put us on the agenda?" in a rhetorical manner, to make a public objection. It was possible to hear other voices before and after Randy, saying things like 'Mr. Arpaio is allowing murder in the streets' and 'uninvestigated rape' and 'payout of $40 million' and I also heard a woman's voice supporting Arpaio saying 'Sheriff Arpaio is right.'

State witness and Chief of Maricopa Protective Services, Jordon Dacfuisto, testified that he had to direct Randy from the Auditorium because he was causing a disturbance. Randy left as directed and was out of the Auditorium within 10 to 15 seconds of the initiation of the entire disturbance. That's the extent of the charge. The witness, Jordon Dacfuisto tried to say that Randy had walked slowly, but there was not hesitation in his step, he exited as requested. Not only is he selectively prosecuted, but by claiming he walked slowly, with video proof showing otherwise, he stubbornly claimed that Randy was walking slowly. But that is not the only time. The State witnesses redefined the meaning of the word "shouting" from audible level of speaking to imply a level unsupported by the evidence.

State makes their own rules. Within 2 seconds of the time the gavel went down and after the removal by Protective Services, the Board of Supervisors meeting was directly back in session. This was the trap laid by the Board of Supervisors and the MCSO. This was the "targeting" aspect that is part of the defense. That the BofS and the MCSO would use the pretext of the distributed "rules of conduct" to shut down the meeting, to deny the First Amendment rights of free speech and then make selective prosecution of Randy Parraz.

The charge of Disorderly Conduct was brought by the supervisor of the MCSO Chief David Trumbi 2 hours after Randy had been cited, booked and arrest for the Criminal Trespassing charge. Trumbi was a witness for the State, he testified that he had seen the video of the Supervisors meeting. In the video tape shown yesterday, Trumbi testified Randy was "shouting" during the meeting. Defense Attorney played the audio/video tape and by all definitions, Randy was speaking in an audible voice, but absolutely not shouting.

The witness David Trombi described Randy as a leader, "inciting" others. He used that word more than once in his testimony. The State tried to prove that this disturbance or disorderly conduct was so out of the ordinary, that it endangered security. To provide a pretext, they handed out rules and regulations, to be follow by the precise letter, any variation punishable by the full power of law enforcement. The question is, are the spirit of the rules for public meetings being followed or are they used to constrain free speech in a public meeting.