New Haven’s Mayor John DeStefano took to the air waves this morning to defend the City’s actions yesterday on the New Haven Green. He’s defending his police chief, Dean Esserman, against charges that Esserman jumped the gun in efforts to evict protestors from the Green. I take full responsibility, the Mayor said.
Okay, Mayor. Have I your way: You are the culprit.
If you aren’t from New Haven, you probably have not been following the drama surrounding the city’s efforts to evict protestors who have been living on the Green since October 15, 2011. The group loosely calls itself Occupy New Haven. I represent a handful of the protestors.
The City has been trying to force them off the Green for a month now. In March, we obtained a court order to prevent the city from acting from a federal judge and got a two week stay of the proceedings, forcing the city to wait until another judge could more fully consider the issue. That judge held an evidentiary hearing over the city’s objection, and then granted another stay while he considered the matter. The city wasn’t happy.
On Monday of this week, United States District Court Judge Mark Kravitz ruled that the protestors had to go. He gave them until noon on Tuesday.
I confess, the fight was pretty well knocked out of me at that point. But I met with the clients Monday night, and they asked us to go the United States Court of Appeals for the Second Circuit in New York City to seek review and another stay. We agreed to do so. Papers were drafted late Monday night, and we set off for Manhattan on the 6:23 a.m. train from New Haven.
After reviewing our papers, we sent a copy of a motion for an emergency stay pending appeal and the supporting papers to the lawyers in the case by use of an email thread from the District Court at 7:21 on Tuesday morning. We were in court in Manhattan by nine, begging the clerks for a chance to see a judge, any judge, before the stay expired at noon.
It was a long and frustrating morning. By eleven a.m., we still had heard nothing. I called New Haven’s lawyer and asked if the city would agree to stand down and not attempt to evict the occupiers until after a judge had considered our papers. A half an hour or so later, I was told no deal. As noon approached we heard that police officers had assembled on the Green, with heavy equipment designed to flatten and remove the protestors’ compound.
I called the appellate court clerk’s office again at about 11:50. "There are police officers assembling. They will move in to evict folks if there is no action." The clerk was polite. She told me that the matter was before a judge. There was nothing more I could do.
I sat in a coffee shop with Dan Erwin, who has worked on the case with me. I explained to him all hope was lost. The city would be free to act at noon. We had done all we could. We notified our clients, and sent a message on Twitter. At noon, I called the city’s lawyer to report we still had no word from the court. Dan and I sat finishing our coffee, watching the sands of hope slide through the hourglass.
The just after noon we got a call from a federal clerk. A "very brief" stay was ordered, she said. An order was being written as we spoke. I rushed off the phone and called the city’s lawyer, tracking him down by cell phone. "We got the stay," I told him. "Oh, shit," he responded, and he was off, I presume to tell his client, Mayor Destafano. That call took place at 12:03.
The press reports that it took the city 40 minutes to stop the police juggernaut that began promptly at noon. The mayor let that happen because he wants these protestors off the Green. Just why now after tolerating them for months? I am sure Yale University wants the Green reseeded for commencement ceremonies.
So it was the mayor’s decision to press on despite knowing that the matter was before a federal judge. It was the mayor’s decision to continue on even though he undoubtedly knew through his counsel that an order staying the city’s hand had issued. He did all this because, as he explained later in the day, these proceedings could drag on for some time. He wants the Green restored to the use of all the people. That’s gibberish. The protestors occupy a small portion of the sixteen acre Green. No one has been prevented from using this public space because of the presence of the protestors.
The Mayor was on a local radio station this morning. He was frustrated but defiant. The protestors are hypocrites, he said, turning to the courts for relief but then engaging in civil disobedience when it suits them. A politician accusing someone of hypocrisy? The Mayor has been living off the public teat too long; his perpetual campaign for office has made it impossible for him distinguish a campaign promise from the truth. The truth is the Mayor DeStefano had an itchy trigger finger yesterday, and he kept firing well after he knew he shouldn’t have.
The Mayor took a shot at me on the radio this morning. I was in the case for the free advertising, he suggested. This coming from a press-fleshing ward-heeler with the moral compass of a three-legged donkey. Can he spell principle?
Mayor DeStefano is a small-town politician who just can’t seem to muster support beyond city limits. His efforts to get statewide office have been rebuffed. He is feared by some, but trusted by few – you know the truth is for sale when you see his lips move. He has cost the city millions in legal fees given his outsized ego and impetuous maneuvering.
But the city keeps electing him. We get the government we deserve. If things are a little ragged and unstrung in New Haven, I guess we like it that way. So does Mayor DeStefano. Today he’s proud of jumping the gun and getting his face slapped by a federal judge. Call him the Emperor of New Haven. Yesterday he was naked for all to see. Today he calls that a victory. Some victory.
I stood in a public place yesterday and watched two tearful parents say goodbye to an American hero. The young man was leaving for a year. Odds are, he will return safe and sound. But the world is a dangerous place. There are no guarantees. They were sending him into harm’s way.
His odds of survival are good. Although he is only 23-years-old, he is already a veteran of four years of service in the United States Navy. He served in Somalia and the Persian Gulf, and was highly decorated during those tours. He is quiet, but loving and eager to lend a hand. When his sister fell ill with cancer, he offered to come home to donate bone marrow. His studies in history at the University of Connecticut earned him a place on the Dean’s list.
This is the sort of kid you want to have as a neighbor. He is a role model of quiet, unassuming diligence.
Neither parent could bear the final farewell. Their son preferred it that way. Saying goodbye is hard for him. He might cry if he saw the tears well up in his parents’ eyes. Better to appear to be brave when embarking upon this trip, he thought.
So his mother hugged him and muttered the soft things mothers do when their hearts are breaking and they realize that all the love in the world might not be enough. His father tried to be stoic, but even from a distance, I could see his heart breaking. A quick hug, and then something like a salute and a quick promise about the things they will do when the boy returns.
I turned away. My children are all older than this boy. Farewells are hard for me. If you let go, will they ever return? Bravery is a mask we cowards wear when all is terror.
And then it was done. This hero stood before a judge. The judge read his pre-sentence report and told those assembled in court it was one of the best she’d ever seen. I’ve read hundreds of these dreary assessments of a person whose entire life is now recast in terms of the moment they broke the law. It was a glowing report.
Her hands were tied, the judge explained. The legislature insisted that a person convicted of this crime spend at least one year in prison. She could not find mitigating circumstances. She could not consider his military service, his dedication to family, the bright future this sentence is certain to derail. The law is deaf sometimes to the sound of justice.
What crime did this young man commit? You must be wondering by now. What small part of his life now becomes the whole of his existence for the next year and well beyond as he copes with probation and the collateral consequences of this plea?
He looked at dirty pictures; pictures of children. He possessed child pornography.
We sent him to an expert on disorders of desire. Explain if you can this errant episode in the hero’s life? The doctor reports it was mere curiosity: No libidinal clock strikes twelve at the thought of a child. For a very brief period the young man looked at pictures. Now he is in prison, a felon, required to register as a sex offender, and a member of the ostracized community of those we abhor in a schizophrenic variety of purity.
There had to be a better way in this case. I suspect the judge thought there was. But lawmakers gave her no discretion to find a way to avoid injustice. None. High-minded Solons sat in the safety of a legislative chamber and threw peanuts to the screaming monkeys in the gallery. "Are you worried about sex? The children! Oh, yes the children! Here’s a mandatory minimum sentence. Are you happy now?" And the gallery fell silent for a day. But come the next shocking and horrific crime against a child the galleries will fill again. Moral panic will yield a deadly act hunger, a desire to do something, anything, to feel safe and secure.
I asked the judge to send a transcript of the sentencing proceedings to lawmakers with a note asking them if they had any idea what they are doing. Odds are she won’t. I am hoping lawmakers will read this. It is not justice to require prison for all defendants convicted of a crime. Give judges discretion to do justice. It is a simple reform, really. Just replace mandatory minimums with a rebuttable presumption. Give defendants a chance to demonstrate to judges why prison is wrong. Treat people like individuals. Don’t do what pornographers do – respond to some deep need and cast the world in terms of sickening stereotypes.
A hero sits in prison today. He made a mistake. So did the law.
Reprinted courtesy of the Connecticut Law Tribune.