Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears.
—Justice Louis D. Brandeis
Throughout our own history, Americans have been silenced by patriots who considered themselves true sons of liberty. Only a small percentage of these assaults on speech and assembly are covered by the press, for it has only so much space. These small silencings in places remote from the big cities are known only to the natives and the victims.
—Nat Hentoff, Free Speech for Me-But Not for Thee
What they do in the county courthouse is make you sit and wait and wait and wait. It was 8:55 when they finally opened the doors to courtroom 3, where I was supposed to appear as the accused, yet I was summoned to be present at 8:30. Well, I entered and took a seat. Nobody was inside, leaving me wondering if I was in the right place. Three portraits of three honorable millionaire judges hung high on the walls, the odor of Mr. Clean in the air. I contemplated how fear reduced citizens to slavery, unconscious or not. A handful of others eventually walked in, including the arresting officer, Crosby, jack-booted, equestrian-panted with a belly much larger than I'd recalled. He sat arms crossed, whistling a quiet tune. My exercise of free speech three months before had given him the morning off or, if my friend Pirolli was right, the morning with time and a half.
It was 9:00, and still the judge had not entered. The two young female prosecutors entered with airs of grandeur dressed in tight black pants suits. At 9:10 the female bailiff arrived, then announced at 9:15: “All rise...” I couldn't understand the rest of her mumbled dreary habit. The judge entered. Then we all sat down in orchestrated, if not fascistic, harmony. Later, during recess I asked the bailiff what the judge's name was. Why didn't they mention the names of these people? Why didn't they put nametags on their desks? I never did find out what the prosecutor's name was.
Judge Sanders had me called to the microphone at about 9:30. I walked to the proper location and stood without a tie and sports jacket before balustrade-like barrier, surprisingly a little higher than the judge who was about 20 feet away. She quickly informed me that other cases were more important than mine and that the prosecutor, three months before, had expressed her willingness to drop the charges if I paid the $100 in court fees.
“That essentially you do not want to pay the $100?” stated the Judge. “That's right, Your Honor,” I replied. “This is not much money, you know,” said the Judge. “Well, it is, if you're not guilty; besides I was forced to pay $95 in towing charges even though there were no outstanding motor violations,” I said. In the state of Massachusetts, police officers, I discovered, had the right to impound your car if they arrested you, rightfully or wrongfully, assuring punishment before trial. “Those charges are another matter,” said the Judge, who turned to the prosecutor who, for some reason was down below in the 'well.' The prosecutor mumbled something about being absolutely certain she wanted to prosecute me.
“Well, you have to understand that this is not really very important,” repeated the Judge looking at me. “Do you still want a trial by jury?” “Yes,” I said being very careful to say as little as possible, fearful of cuffs and not knowing what my speech rights were in the courthouse. Just the same, I opined: “So, the $95 towing charge is the cost of free speech in the state of Massachusetts?” “I said that was another matter, sir” said the Judge angrily. “It has nothing to do with this! That's all for now. I will have to think about this.”
I left the accused area and sat back down in the audience, not knowing what the Judge was going to do nor when I'd have to stand up again. I was absolutely convinced that I'd rather a six-person jury than Judge Sanders. The first case was a family battle between a young couple. The wife wanted the husband to vacate the home and immediately began crying. Already, the Judge seemed to settle into the tedium of the day, her face yawning, her chin resting upon the back of her wrist. The second case was a bit more interesting. The Judge read the accusation against a young black man: “...lasciviously exposed himself.”
At 9:40, the bailiff announced: “All rise...” It was already coffee break for the Judge, who stood up and left the room. One of the officer guards said to the bailiff: “Why don't we start the trial and get that over?” I didn't know if he meant my trial or someone else's. I remain seated, sketched the Judge and wondered why the lawyers and judges have remained so silent regarding rampant prison abuse and police corruption. Fear must surely be their best ally, fear of the prisons by citizens behaving in ways not quite automaton.
To my surprise, the Judge called me forward at about 10:15. A month earlier I had waited four hours in the courtroom to obtain a date for my case. The bailiff called me down into the well, where I stood in front of a large tape recorder. The judge, about three feet above my head, the prosecutor, next to me, and I entered into discussion. “I'm going to offer to drop the charges,” said the Judge. “But it's up to you. You do have a right to a jury trial. And if it's okay with the prosecutor, of course.” “Well,” said the prosecutor, “I'll leave it up to the Judge's discretion.” “Well, then I offer to drop the charges,” said the Judge. “It's up to you.” I hesitated in front of the recorder, then said: “Well, I'm kind of confused about the law.” “Frankly,” responded the Judge gazing at the police report, “I don't think you stand a chance.” “I sure believe that,” I said, “which was why I wanted a jury trial.” “It's basically a crap shoot, if you decide to go before a jury,” added the Judge. “Listen, this is about as good as it gets in the courthouse.”
“Okay, I accept the offer," I said, deciding at that moment, that maybe it was very possible I'd end up with six people like the Judge and spend six months behind bars, the maximum for my crime of exercising free speech, otherwise known as disorderly conduct. The Judge also made it clear that I wasn't going to get anything in front of a jury, surely not reimbursement for the $95 impoundment. “You are free to go,” said the bailiff. “There's no fine to pay.”
“Thank you,” I said without the 'Your Honor' tag and walked down the aisle, through the doors and out of courtroom 3. I sat for a moment on one of the hallway benches in a daze. It had been three long months of anxiety and bad dreams. I quickly wrote down my thoughts and dialogue, fearful I might forget the Judge's conversation, then left the building feeling somewhat elated, though not quite as elated as several years before when I walked Vineyard Haven beach after my sudden firing at Martha's Vineyard Regional High School… for exercising free speech in the local newspaper. I was still nothing but a naked citizen of the Commonwealth without the First Amendment wrapped de facto around my vulnerable crotch. I walked back into the courthouse.
“Can I file a claim against the state?” I asked the female clerk, who hesitated then walked over to pose the question to somebody else in the back. She reappeared and said: “Yes, but, well, you probably won't win. But, yes, you can file a claim.” I looked at the Small Claims Form, noted the $15 charge and said: “Fifteen bucks? I guess I'll skip it.”
Clerk calls the case. Make a motion. Your Honor, I would like to make the following motion. Because the prosecution has completely ignored my written request to discover the officer's notes, I request that the court order the prosecution to provide a copy of the officer's notes, so I may better prepare my case. I have here a copy of that request made on September 9, 1999.
Officer not present. I am ready to proceed to trial. I have spent much time and energy preparing for this case. I have received no advance notice from anyone that the case would not proceed. Certainly if I failed to show up and the officer were present, I wouldn't be entitled to a last minute postponement. So, I respectfully ask that the court dismiss this case and order the state to reimburse the expenses incurred by the officer's impounding of my car for lack of prosecution and in the interest of justice. Judge tells officer to testify. You interject: Your Honor, I would like to reserve the right to make a very brief opening statement until just before I testify. Officer testifies.
Objection, Your Honor, the officer is referring to his notes, a copy of which I requested by way of discovery; several months ago; my written request for those notes -which I'd like to show the court is right here-was never responded to. I ask that the evidence be excluded and that the officer's testimony be disallowed. I would like to ask for a continuance so that I may examine the notes. Objection (hearsay)
Cross Examination. Judge may simply want you to present your story or rebuff your wishes to cross examine and make a final statement. If officer continues talking. You can try to stop him. “Thank you.” “I think you've answered my question.” “Objection your Honor...
Objection your honor, the officer's answer is not responsive to my question. I ask that the witness be instructed to answer the question I asked. Your Honor, I ask the court to instruct the witness to confine his answers to my questions.
1. Is it true that you pursued me because of an event that you yourself did not even witness?
2. Is it true that when you in your unmarked car turned on your lights and siren, I pulled over for you as soon as I could, that is at the first exit road off Route 2?
3. Is it true that when you asked me to give you my license and registration I in fact gave them to you? 4. Is it true that when you verified the information on my license and registration that there were no warrants or violations outstanding? 5. In your report, you mention “visibly upset” people were present. Precisely how many of those people came up to you to complain about my behavior and if indeed they were so upset, then why didn't they file complaints?
6. Please inform me what their names were, describe where they were, and what they looked like.
7. Were these supposed observers confined to stand in my presence, or could they simply walk on and go about their business? Were we blocking or even near the entrance to the apartment building?
8. What was I wearing? Please describe my appearance? Do you know why I had gone to Walden Pond?
9. I notice your report lists absolutely no particulars. What precisely was I saying and doing?
10. Is it true when you asked me to give you the tape recorder that I used to record my voice and not your voice, I gave it to you? Did you not inform me that I could spend 5 years in prison for recording my voice in front of you?
11. Is it true that I did not threaten you physically, that I did not pick up a stick or throw punches or kick, that in fact I obeyed your every command?
12. Is it true that you put cuffs on me that were particularly tight considering that I have no police record whatsoever, and that I mentioned that to you, and that you did not loosen them? 13. Is it true when you asked me to get into your car, I did get into your car?
14. Is it true that you called the tow company and had my car impounded even though there were no outstanding motor vehicle warrants and that we were in a large parking lot where my car could have easily been parked, and that you punished me by doing that?
15. Is it true that I asked you if you had read Thoreau and that you replied that you did not believe in Civil Disobedience?
16. Why are you working at Walden Pond, famous for a man who fervently believed in Civil Disobedience?
17. Have you ever stood guard at a rap concert where so-called “offensive and assaultive and argumentative” language is current? Why do officers not arrest the rap stars for using such language in a public place? Are you aware that in Com. V. LePore (1996) 666 N.E.2d 152, 40 Mass. App. Ct 543, that “conduct must disturb through acts other than speech; neither a provocative nor a foul mouth transgresses statute”?
18. Is it not true that all I was doing was committing acts of SPEECH?
19. Is it true that I asked you on at least several occasions to read me my rights and that you refused to respond? Is it also true that on at least several occasions I asked you to tell me why you had stopped me and arrested me and that you refused to respond? Is not true that you barely said a word to me?
20. Is it true that I got out of your car and walked into your police station without any problems whatsoever?
21. Is it true that you finally read me my rights and told me what I was being charged with at the police station, a good half hour after the incident off route 2?
22. Is it true that you told me you would incarcerate me for 24 hours if I chose to remain silent, even though you had just informed me that I had a right to remain silent?
23. Is it true I obeyed you when you asked me to take off my sneakers and step into the jail cell?
24. Is it true that two video cameras face the cell in which I was locked up and that a sign informs that the area is being recorded?
25. Is it true that you refused the requests I made in front of the video cameras to make a phone call, to have toilet paper and a blanket, as I was cold from having just come out of the pond and an air conditioner was blasting cold air into the cells?
26. Is it true that another officer came into the cell area and used offensive and assaultive and confrontational language towards me in front of the video cameras?
27. Is it true that several hours later, when you asked me to step out of the cell, turn around so you could cuff me and follow you to your car that is precisely what I did?
28. Is it true that when we arrived at the courthouse, I obeyed your orders to get out of the car and enter the building?
29. Have you ever seen me in Concord handing out political flyers or have you talked with another officer about my activity?
30. Finally, are you aware that in U.S. v. Pasqualino, D. Mass., 1991, it was determined that it was unlawful to arrest under the disorderly conduct statute a person who, “yelling, screaming, swearing and generally causing a disturbance but, though the yelling was undoubtedly loud enough to attract the attention of others..., it did not rise to level of 'riotous commotion' or 'public nuisance'? Are you aware of other cases of jurisprudence that have helped define the statute? Your Honor, I will present several other cases during my testimony.
Redirect Examination (prosecutor crosses the officer only regarding to questions brought up during my cross)
If prosecutor asks other questions you have the right to re-cross examination limited to new issues evoked by prosecutor
Your Honor, I intend showing facts that will demonstrate I am not guilty of violating the state's disorderly conduct statute. Specifically, I will rely on my own testimony and research regarding the jurisprudence that has defined that statute in an effort to prove I did not violate that statute, and that the arresting officer never should have pursued me to begin with, never should have impounded my car, never should have placed me under arrest, and never should have incarcerated me.
My Testimony (don't read, but glance at notes)
First, because I can not justify paying the outrageous fees for legal representation, I must represent myself. If my presentation in any way upsets court etiquette, it is not by maliciousness or disrespect, but by simple inexperience.
Now, allow me to introduce myself. I am 51 years old, have never before been arrested, have no criminal record whatsoever, have no motor vehicle violations current or outstanding, have a doctorate from the Université de Nantes in France, spent over 14 years as a full-time college professor, and am a fervent believer in American First Principles. So fervent, in fact, that I created and edit a literary review, The American Dissident, essentially devoted to the subject. Moreover, I am a linguist by trade, and have published extensively on the subject in scholarly journals such as Geolinguistics and Language Problems and Language Planning. I am currently under much stress because I am experiencing much difficulty finding suitable employment. Although, I have been charged with Disorderly Conduct, I wish to underscore that by no means did I willfully violate that statute. Clearly, the absence of criminal record would seem to support that assertion. First, the seriousness of my alleged offense must be seriously questioned for several key reasons:
1. The park attendant is not even present today.
2. Walden Pond State Reservation has not even responded to my request made on Sept. 9th for information regarding use of language on its grounds. And even more disturbing, the park has not filed a complaint against me, nor has it banned me from its grounds, despite the officer's report that it was going to take action. I emphasize disturbing because I spent four hours in jail. I have here the letter of that request.
3. There is no mention of language in the two brochures, Massachusetts Forests and Parks and Walden Pond State Reservation, distributed to visitors. Indeed, the park attendant wished to show me the contrary. I have here the brochures that are handed to visitors. Moreover, there is no mention of language on the posted rules signs. The signs only mention: no pets, no flotation devices, no fires, and no alcohol. One must conclude that, at the state reservation, the use of language, no matter what kind, is much less significant than the items posted. Does using a flotation device constitute a criminal misdemeanor; if not, why mention less significant rules? Besides, aren't the fishermen using flotation devices, and why aren't they being pursued by the park attendant or state police?
4. Even more importantly, the Prosecutor was quite ready and willing to drop all charges if I paid court expenses of $100. Needless to say, I refused the prosecutor's offer because a certain number of issues need to be addressed, including the towing of my automobile, freedom of speech and police practices.
5. Finally, I tried in vain to file a complaint with the court bailiff here at the courthouse against a police officer present during my incarceration. My charge was that said officer had engaged in the very same linguistic usage, that is, “offensive and assaultive language,” that had landed me behind bars. The police officer confronted me when I was requesting my right to make a phone call, which by the way was never granted, and hollered: “YOU WOULDN'T EVEN BE IN HERE IF YOU HADN'T OPENED YOUR FUCKING TRAP!” His statement is recorded on the video camera placed by the cell I occupied.
The bailiff informed me he would not hold a hearing for my complaint because the officer did commit a crime. He also mentioned, to my surprise, that the officer had a right to free speech. Am I to assume that officers have greater rights to free speech than common citizens? In any case, these five reasons lead me to believe that my behavior was not a criminal offense. I would like to mention also that if the arresting officer had simply informed me that my car would be towed if I continued speaking, I would have shut my trap. Instead, the officer remained silent and refused to give me any information or answer any questions I posed. He did not even attempt to discharge what was essentially an instance of making something out of nothing. Any emphatic language subjectively deemed as offensive and assaultive was not used against the officer. I would not be so bold to do such a thing given what I've been reading in the newspapers more and more regarding police corruption. Indeed, I underscore I obeyed his every command.
His refusal to communicate simply exacerbated my anger. And I was angry by the fact that the officer had pursued and pulled me over for having had a simple non-violent dispute with a park attendant.
Clearly, there are two quite different physical areas where the alleged offense took place. The first occurred at Walden Pond State Reservation in front of a park attendant. No other citizens were present, which is why the necessity prerequisite for arrest under the statute was absent. Clearly, a simple argument does not constitute 'riotous commotion' or 'public nuisance.' I emphasize the officer never should have pursued me. It was illegal for him to do so.
The second area of alleged offense took place in a large open parking lot where the officer arrested me. Although the arresting officer states in his report that witnesses were “visibly upset,” apparently they were not sufficiently upset to depose complaints and come forward.
I am not aware of any people that were sufficiently close by and sufficiently interested in what was going on between myself and the officer. One elderly woman did however drive up in her car, but I was already in cuffs and in the squad car with the window rolled up. She talked with the officer, but nothing at all to do with me. Just small talk. No, contrary to the officer's statement, there were no “visibly upset” people. And if in fact there were they simply could have walked off to get on with their business. This was not a closed parking lot, but rather one in a wide open space. Besides, are people so weak-bellied today as to demand that those who might upset them be incarcerated in jails without blanket, mattress or toilet paper, as I was? Because of the absence of witnesses, it is my contention the officer fabricated this to create a case against me. In other words, he did have to justify his arrest.
In brief, then, an argument took place between myself and a park attendant in the total absence of witnesses. And no argument took place between myself and the arresting police officer. Indeed, I obeyed his every command and the officer does not mention any particular argument in his report. He does use the vague terms argumentative and confrontational. Yet I underscore I obeyed the officer's every command. Rather than argumentative and confrontational, which are not violations of the statute, I was inquisitive and compliant.
Freedom of Speech
Interestingly, with regards freedom of speech, any words I may have used were not obscene, nor offensive, nor assaultive, but rather emphatic, that is, used to emphasize points, not to assault or offend. Besides, such terms must inevitably be subjective. As far as I am aware there is no list of illegal words. In other words, obscene for me might not be obscene for somebody else. Subjectivity in the law always results in abuse of the law, and not necessarily by the citizenry.
If a citizen is to spend 4 hours in jail, as I was forced to do, for linguistic charges, such charges should be clearly defined and stipulated by the state, and disseminated to the public. I contend that the state has failed to do this at Walden Pond State Reservation. Since only the vague term “obscene language” is listed in Title 304 (Division of Forests and Parks), I'm left wondering whether “offensive and assaultive” language is not even prohibited. If it is, then I must ask offensive to whom? Assaultive to whom? My language was certainly not assaultive, but emphatic. There is an evident difference between the two terms “assaultive” and “emphatic.” I have yet to be informed of the precise words that offended and assaulted the park attendant. Thus it is difficult, if not impossible, for me to even defend myself regarding the principal area of alleged offense.
Moreover, any words I used are words quite current on television, in public schools, and all over America, including in the public domains of the White House and police stations. Moreover, jurisprudence has clearly defined the statute that mere use of language, obscene or whatever, does not constitute a crime. Allow me to evoke several of those cases, one of which goes back to 1850 and stands today.
1. Thus, in Com. V. Smith (1850) “it is no offense against the law to utter loud cries and exclamations in the public streets...”
2. In U.S. v. Pasqualino, D. Mass., 1991, 768 F Supp 13, it was determined that it was unlawful to arrest under the disorderly conduct law a man who was, “yelling, screaming, swearing and generally causing a disturbance but, though the yelling was undoubtedly loud enough to attract the attention of other guests in hotel, it did not rise to level of 'riotous commotion' or 'public nuisance.'” In the absence of the public, there can evidently be no “riotous commotion” or “public nuisance,” necessary prerequisites to legal arrests made under the statute.
3. In Com. V. LePore (1996) 666 N.E.2d 152, 40 Mass. App. Ct 543, “conduct must disturb through acts other than speech; neither a provocative nor a foul mouth transgresses statute.” Nothing in the officer's report indicates that I was doing anything but speaking. Also, a person is deemed disorderly if, “with purpose to cause public inconvenience, annoyance and alarm, or recklessly creating risk thereof... by act which serves no legitimate purpose of actor.” Again any language I used was used with purpose and I emphasize here POLITICAL free expression.
4. In Com v. Johnson (1994) Mass. App.Ct. 336, “mere use of obscenities in public does not make out crime of disorderly conduct.”
Next, I would like to underscore that my argument with the park attendant was a political argument. Indeed, I expressed my anger at the state, at the corruption I witnessed at Fitchburg State College, at the inaccessibility of public documents to the public, at the legalization of nepotism in 1986, rampant cronyism, patronage and corruption in other aspects of public business which I will not mention here. That was my argument, not really even with the park attendant. It was with the rules, the corruption of the rules. In Com. V. Jarrett (1971) , “mere making of statements or expression of views or opinions, no matter how unpopular, or views with which persons present do not agree is not punishable as disturbance of the peace.”
Finally, it is my contention that I was arbitrarily arrested because I suspect the arresting police officer, considering his age, was not ignorant of the law he has sworn to uphold. I must ask: Why the officer never once asked me to stop using whatever words he was allegedly offended and assaulted by? Well, because of the statute, I suppose that would have been illegal on his part. My only answer is that it was his intent to arrest me, guilty of wrongdoing or not. It was his intent to arrest me because of my unkempt appearance, unshaven face, use of strong language, expression of anger and political views, and general lack of docility and subservience.
In fact, last month, I was walking down Harrington Avenue right behind my home where I walk everyday. A squad car approached me and stopped me and asked me questions. The officers said that somebody complained that they did not like my appearance. They also said that further down the road an officer working over time at a private construction site had said that I turned around when I saw him and walked the other way. I was detained for thirty minutes and felt like a criminal as neighbor's passed wondering what I had done. In any event, the only thing the officer responded to was my question about Thoreau, and that response was: “I don't believe in civil disobedience.” Yet because of civil disobedience blacks in America are free today. Without it they would not be free. Clearly, he and I differ tremendously regarding political views. It is my assertion that the officer arrested me because of my politics, manner of speaking, and physical appearance.
“Irate and Confrontational,” “Argumentative/Irrational”
-Relative to the police report, “irate” is not an offense per se. Citizens are not arrested for expressing anger. Or are they? Well, I was. However, legally they should not be arrested in accord with the disorderly conduct statute and jurisprudence above mentioned. The very word should not be in the report because it is not an offense. Just like noting “unshaven” should not be in a report.
-The terms listed in the police report, for which I was arrested, “irate and confrontational, argumentative and irrational,” are all highly subjective terms, thus very much open to the unfortunate arbitrary and capricious determination of police officers. Nevertheless, they fall quite short of the necessary “riotous commotion' or 'public nuisance” mandated by U.S. v. Pasqualino, especially since the public was not even present. Again, where are the alleged “visibly upset” witnesses as stipulated in the police report? Does “confrontational, argumentative and irrational” mean asking four or five times why I was being arrested? Do the terms mean expressing anger for being arrested for having had a nonviolent argument with a public park attendant? Do they mean obeying every command of the police officer and not at all resisting arrest? Was that irrational behavior? Obeying and not resisting?
I have been informed by the ACLU that in 95% of cases, where there are no witnesses, judges side with the police because the police supposedly have no reason to lie. I'd thus like to remind the court of the recent spate of corruption and lying in the ranks of the nation's police officers, as highlighted in a number of newspaper articles. Need I mention the Boston Globe's spotlight series on police testilying, the disbanding of the entire police force in Spencer, Massachusetts, as well as the heinous behavior of police officers at the Suffolk County prison, and Los Angeles, where it is purported that 100s of arrests and convictions may have to be overturned.
Equality under the Law vs. Arbitrary and Capricious Police Harassment
Senator Ted Kennedy once stated: “Do we operate under a system of equal justice under law? Or is there one system for the average citizen and another for the high and mighty?” I'd like to add to that query: Or are there two systems for the average citizen, one for the respectable appearing and sounding, while the other for the nonconformist in demeanor and voice? Clearly, I was being treated differently by the arresting police officer, than he would have treated other citizens. He did not have to arrest me. He should not have arrested me. I was threat to nobody. My license and registration were in order. He should have talked with me and answered my questions, instead of remaining silent, impassive, aloof, and apathetic. Not once did he mention the Walden Pond incident. He didn't have to put those cuffs on so tightly that the circulation in my hands was arrested. He could have given me toilet paper, a blanket considering how wet I was from my swim, and one phone call when I was in jail. The officer did not like me which was why he decided to punish me by proxy with his silence, tight cuffs, incarceration, and impoundment of my car.
-Again, the officer did not like me because of my appearance, my untied sneakers, unshaven face, long hair, dripping wet teeshirt and bathing suit.
-The officer did not like me because of my level of education, as indicated by my discourse, questioning mind, mention of Thoreau, and use of a tape recorder to note my thoughts.
Regarding the taping, the officer stated that taping was a 5 yr. felony. Could that actually be true? I sure hope not. Besides, I was not taping the officer and told the officer I was not taping him. I am a writer and habitually use my recorder to record my thoughts. He asked me to stop. I stopped, but then resumed a few minutes later out of habit to tape the sequential events leading to my astonishing arrest, so that I would not forget them. He told me to stop again, and I stopped taping. He told me to hand over the recorder, and I handed over the recorder. Is that “irrational” behavior?
What the officer successfully did was further shatter my confidence in American democracy and definitely increase my FEAR, not respect, of the police force. I have virtually been in a state of emotional shock since my arrest and incarceration.
Infringement of Basic Citizen Rights
-I was kept in a cell with the impression that I would be spending 24 hours there, wet and cold without a blanket, without a mattress, cruel and unusual punishment, especially for a simple misdemeanor charge and for somebody who has absolutely no police record.
-I was refused the right to make one phone call. I assume now that right is only a myth propagated by television.
-I was refused the right to toilet paper. All of my requests should be recorded on the jail room video camera.
Finally, I love the freedoms given to us by the American Constitution. However, I detest and am wholly disgusted by how the system makes it so difficult for those freedoms to prevail. The System, police officers, etc., crush citizens into unchallenging and unquestioning automatons of obedience, yet democracy can only function if citizens are willing to question and challenge. The citizenry is purposefully kept ignorant and indifferent, regarding the most common and basic rights. Even the Chief Justice Commission of Massachusetts agrees regarding these things. “Negative perceptions stem not only from real problems but also from widespread lack of understanding about the justice system. Public attitude surveys reveal hostility, cynicism, and apathy towards the courts.”
No such basic rights document exists at the Concord Courthouse or town hall. Such rights are not taught in our public schools. Indeed, I still do not know what to do legally when a police officer pulls me over, especially in an unmarked car. A tow truck driver told me I have the right not to open my door and to demand that an official police car be present. I do not know if this is true. Because of my arrest I am no longer sure if I am permitted to argue with a public servant, park attendant or whomever. Despite, the jurisprudence mentioned, because of my arrest, I am not sure about the use of words and decibel levels that may or may not constitute “assaultive and confrontational” in the eyes of a police officer. I do not know legally if I have a right to be warm in a jail cell. I am truly left wondering today, if my only right as a citizen is the right to remain silent, as underscored by the police officer who hollered into my cell: “YOU WOULDN'T EVEN BE IN HERE IF YOU HAD KEPT YOUR FUCKING TRAP SHUT!”
Would it not be just if the court orders the state to repay the $95 towing charge with interest and compensation for the emotional damages incurred during my entire ordeal, as well as the many hours (15 hours) of research I've had to effect in an effort to try to uncover what rights citizens of the Commonwealth possess and prepare my case, which I underscore never even should have been a case.
Objection your honor, the officer is a witness not a lawyer or advocate. He's here to present evidence only not to practice law by arguing which evidence is more believable, or how this court should apply the law to the facts. Objection, Your Honor, no evidence was presented on that point. (If prosecutor introduces something else in closing statement) Summarize why you should be found not guilty (don't read it, less than 15 sentences)
Your Honor, I believe it's my right to make a brief final statement. I'll be well-organized and quick, but I do want to briefly explain why I'm not guilty. Allow me to quickly summarize the evidence. The officer's testimony failed to show that there were any “visibly upset” witnesses, without which there could not have possibly been “riotous commotion” or “public nuisance,” prerequisite points for the disorderly conduct statute to be violated. Furthermore, my own testimony shows that I did not use “offensive and assaultive language,” which does not even constitute a criminal offense. My language emphasized my anger. Moreover, I was not “argumentative and confrontational,” but rather inquisitive and quite compliant. For these reasons, Your Honor, there is certainly a reasonable doubt as to whether I committed any offense, and I therefore ask that you find me not guilty.
Prosecution's Rebuttal Statement (rare)
The Verdict -either announces his verdict or takes the case “under advisement” (notified by mail) -appeal must be made from 5 to 30 days after judge's verdict, visit court house once a week, ask if verdict -talk to the court clerk if you wish to request a fine reduction How to object. 1. Officer reading from notes before 'laying the proper evidentiary foundation' (he must first state he can't remember details; 2. He recorded them shortly after violation; 3. Needs them to refresh memory Objection, Your Honor. The witness is clearly reading from notes which are hearsay and should be excluded from the trial. If judge doesn't direct officer to let me read notes I may politely ask the judge Wait until judge asks you to return notes, object on hearsay, and request officer to testify on his independent recollection. 2. Judge coaches officer “Objection, your Honor, with all due respect, it appears as if the court is helping the officer to testify by asking leading questions. I again ask the court to instruct the witness to simply testify from memory or lay a proper foundation for use of this material. In closing argument, claim that officer has a poor memory for events and can not really contradict evidence that I present. 3. Assuming facts not in evidence. Object, your H, this testimony assumes facts the officer hasn't testified to. There is no evidence before this court as to h... I move his testimony not be considered. 4. Hearsay evidence (the officer did not personally observe) If prosecutor says, “and what did the park attendant tell you officer” “Objection, Your Honor, the question calls for hearsay.” If officer quickly answers. “Objection, Your Honor, that's hearsay which I move be eliminated from the record.” Prosecutor can subpoena witnesses People who unintentionally engage in illegal conduct may be morally innocent; this is known as making a "mistake of fact." Someone who breaks the law because he or she honestly misperceive reality lacks "mens rea" and should not be charged with or convicted of a crime. Under great personal stress, being 51 and unable to find employment. Questions for Selecting Jury Members 1. Any police officers in your family? 2. Are you close friends with any police officers? 3. Do you think officers ever lie when giving testimony? 4. Do you know what civil disobedience is or means? Do you believe in it? Do you believe in free speech? 5. Do you think that a person should be incarcerated for swearing in public even if the law says that swearing in public is not a criminal offense? 6. Do you think Senator John McCain should be jailed for criticizing members of Congress? 7. What is your education? Do you dislike educated people? 8. Have you ever been arrested?
If I should sell my forenoons and afternoons to society, neglecting my peculiar calling, there would be nothing left worth living for. I trust that I shall never thus sell my birthright for a mess of pottage…
—Henry David Thoreau, A Writer's Journal
As a resident of Concord, Massachusetts, I suppose I am somewhat of a modern-day Thoreau, quite different from the neighbors and residents. No, I am not that actor playing Thoreau at comfy Thoreau Society get-togethers. Well, Thoreau was not an actor either. “Cold and hunger seem more friendly to my nature than those methods which men have adopted and advise to ward them off,” he'd written. “If it were not that I desire to do something here,—accomplish some work,—I should certainly prefer to suffer and die rather than be at the pains to get a living by the modes men propose.”
Like Thoreau, I walk a lot, while others grind away at 9 to 5s-I'm unemployed, essentially blacklisted because I blew the whistle on corruption, though in vain, at one of the state colleges. Like Thoreau, I'm well educated, though didn't attend Harvard. My doctorate from the Université de Nantes in France, though, has gotten me nowhere but in trouble. And like Thoreau, I also spent a few hours in a Concord jail cell, though in the morning and afternoon, not overnight, and not for tax evasion. I was arrested for uttering the word FUCK in the context of the state, as in “Fuck Massachusetts and Fuck its system of cronies and patronage!” during a nonviolent dispute with a park attendant at Walden Pond State Reservation. Surprisingly, or perhaps not, my exclamation was not a violation of the state's disorderly conduct statute for which I was cuffed, booked, and incarcerated.
I suppose members of the Thoreau Society would not wish to consider me a modern-day Thoreau because, well, I am not a member of their, or anybody else's, literary circle and especially because I protested one fine afternoon against the Society during its 150th Anniversary “Civil Disobedience” celebration held in front of the First Parish Church and the grandson of Gandhi. My protest was simple enough: THOREAU WAS AN ACTIVIST, NOT A SOCIETY, NOR SHOP. The C-SPAN cameraman did not like that placard when placed between his camera and Mahatma, junior. The Thoreau Society had managed to implant a tasteless souvenir shop at Walden Pond.
Like Thoreau, I too have written and published protest essays on injustice and distributed pamphlets as a pamphleteer. On that rare occasion when I succeed in making the editor of the Concord Journal comprehend that his newspaper tends to quell the voice of dissidence, a few of those essays have appeared there. I am also a weekly columnist for Maincampus.com. My column, “Blacklisted Professor,” is generally a remonstration against rampant corruption in academe.
My thoughts on Concord would probably be quite incomprehensible for most Concordians, as I suppose the thoughts of Thoreau and Emerson were during their time. I suppose I differ from those neighbors because I not only believe in the writings of those writers, but also try to put them into practice. Like Thoreau, I too am quite alienated from my fellow Concordians, who seem to be quite preoccupied with their shiny SUVs, remodeling of their mansions, black tie chuckle parties, book signings by well known safe writers and poet laureates, Thoreau Society get-togethers, and children's soccer games. It is a pity that many of them are so proud of Thoreau and Emerson, yet so unwilling to take that giant step of true comprehension and live Thoreau and Emerson. How easy and safe it is to simply join the Thoreau Society and look at Thoreau and Emerson through the display case in the public library. If anything, Thoreau Society members and citizens of Concord insult Emerson and Thoreau with their very adulation. Neither of those two writers would have wanted adulation, but rather true comprehension.
Finally, my realization today, while walking, thudding upon the snow covered path around the famous pond, gazing out at the three or four ice fishermen dispersed upon the center of the ice cap, is that the true center of Concord, perhaps representative of America's true center, is not Walden Pond, nor the town's Main Street where the bookstore, and children's luxury clothing and cappuccino boutiques, but rather that silent monstrosity where Route 2 files into the great, chaotic rotary to announce the great Middlesex Correctional Institution with its massive concrete walls and machine-gun turrets.
This is the center, where the daily influx of prisoners, and in and out flow of weightlifting guards. It is the Concord that does not even exist for most Concordians, yet its grounds are certainly more impressive than Main Street's boutiques. It is the shame and silence of Concord. It is the living testimony of the failure of the state, of the failure of capitalism and, most of all, of the failure of public education. You will not find mention of the prison in the Chamber of Commerce brochures, diverse pamphlets distributed by the many Concord realtors, nor in those distributed by Walden Pond State Reservation. The core of Concord is that prison, as well as the eternal indifference of Concordians to the nation's first principles, founding fathers and, of course, the real Thoreau and Emerson.
For some interesting articles about speech concerns, see the First Amendment Center.
It is the accumulation of our denunciations that will hopefully someday make a difference. Let the following thus constitute one more account, be it minor or not, of injustice to add to the monstrously large warehouse of testimony.
Inside the replica shack at Walden Pond in Concord, Massachusetts is a page from “Civil Disobedience.” I've often wondered if anybody but I had ever read that page... and if they had, had they really understood it?
Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them until we have succeeded, or shall we transgress them at once?... They [men and women] think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse. Why is it not more apt to anticipate and provide for reform? Why does it not cherish its wise minority? Why does it cry and resist before it is hurt? Why does it not encourage its citizens to be on the alert to point out its faults, and do better than it would have them? Why does it always crucify Christ, and excommunicate Copernicus and Luther, and pronounce Washington and Franklin rebels?
During the 150th anniversary of “Civil Disobedience,” I protested in front of Gandhi's grandson who was delivering a speech for the Thoreau Society outside the First Parish church in Concord. My sign, THOREAU WAS A DISSIDENT, NOT A SOCIETY OR SHOP, was either read in disgust or simply ignored by Society members (see Northwoods Journal, Fall 1999 issue). A month later, I was incarcerated for having a simple nonviolent argument with a park attendant regarding rules. Sure, I had uttered the word “fuck” now and then, but I'd later discover that saying that word in public did not violate the Massachusetts disorderly conduct statute. Sure, I was agitated and angry, but remained in my car and did not make any threats whatsoever. Here follows the details:
During the summer, I swam at Walden Pond nearly everyday. On the second day of this past September, a Thursday morning, I pulled into the park, waited behind the car in front of me, and waited and waited and waited as the attendant gabbed, indifferent to my waiting. So, I drove around the car, pointing to my seasonal sticker and parked. The attendant had hollered: “SIR, SIR!” But I kept driving. I didn't like waiting on lines, which explained my being at the park early. I also didn't like being referred to as SIR by a young person in authority. I'd rather be called old man, which would be less hypocritical and certainly more refreshing.
I swam 45 minutes. Walked back up the hill, got into my car, drove out of the lot, pulled over to the control station, and asked the attendant what was wrong. He said I hadn't followed the rules. “What fucking rules?” I replied. I pointed to my seasonal sticker and said I'd paid my dues. An argument ensued about the rules. I remained in my car. But I had sinned. I had used the word “fuck,” which everybody in the world used, even park attendants. “Fuck the rules and fuck Massachusetts with all its goddamn corruption and cronyism!” I said as he continued on his rant about following the rules. Yes, I had sinned again: I expressed anger in public, that is, in front of one public park attendant. Needless to say he got visibly angry at my anger and as he dialed the police, I said, “Fuck this!,” and left.
Soon, on Route 2, an unmarked car was flashing its lights behind me, so I put on my signals, and eventually pulled over into the lot of an apartment complex. I got out of the car. The officer got out of his car and asked for my license and registration, which I handed him. He called in the information. I was angry, now pursued like a criminal, and asked what he was going to charge me with. He refused to respond. “This is fucking crazy, getting arrested for taking a fucking swim at Walden Pond and arguing with a park attendant,” I said.
While the officer was calling in, I was taping my voice on a little tape recorder, mentioning his name and badge number, his unmarked license plate number, and the details of the citizen ordeal. When he got out of the car he told me to turn off the recorder or face a five-year felony. Could that really be true? I wondered and turned it off. Because I was a writer, I had the habit of using the recorder, so soon found myself speaking into it again. I didn't want to forget anything. He told me to turn it off again. I told him that I wasn't recording him, that I was simply recording me. I asked what he was charging me with. He wouldn't respond. “Well, this is fucking crazy,” I said. “I didn't do anything wrong. Now I'm being arrested.”
The officer was apathetic, impassive, and utterly taciturn. I told him out of frustration to go ahead and arrest me. Of course, he could have handled the matter differently. He knew I was angry and could have easily persuaded me to calm down. Instead, he arrested me, probably because he didn't like my voice, attitude and physical appearance. Indeed, I was unshaven and dripping wet from my swim with the look of an unemployed rebel, if you will, especially since I was not manifesting overt deference to a supposed public servant and was even being so audacious as to ask questions.
“Give me the recorder,” he ordered. I gave it to him. He told me to face his car. I did. He put handcuffs on me. He told me to get into the car. I did. Inside, I asked him if he had ever read Thoreau. “I don't believe in civil disobedience!” he exclaimed. “Well, maybe you shouldn't be working at Walden Pond then,” I said. He didn't respond. Well, at least he'd heard of Thoreau. He stood next to the car talking on his cellphone with a tow truck company. Then the truck finally arrived and impounded my car, even though there were no motor vehicle violations outstanding or current. Apparently, this is the officer's right and way to punish and fine citizens by proxy. $95!
The officer got into the car, and we took off. I asked him to please loosen the cuffs, that my hands were getting numb. He did not respond. I asked him to read my rights. He did not respond. I asked him what I was being charged with. He did not respond. Later, I asked him again. He remained silent. I asked if he were going to bring me to the woods and shoot me. I said they'd probably never find me. Angered, I asked why the police didn't seem to have anything better to do than arrest a person who had a nonviolent argument with a park attendant. I asked what he thought of the five cops who had tested positive for heroine and cocaine in Boston and about the disbanding of the entire force in the town of Spencer because of profound police corruption. He refused to speak. So, I stopped talking. Next to me was a state trooper's hat. So I suspected he was with the state police, not the local police. He was about 55 and, from his attitude, quite ready to retire.
No, I was not deferent to the officer. I don't like the police. I don't like their fascist manner. I don't like the fear they instill, nor how they behave in front of the poor and other non-pillars of the community. Sure, there must be some good officers out there, but I have yet to meet one. Indeed, things have become so twisted-citizens becoming so indoctrinated by public education and the government-that I assume many if not most people would agree that the officer should have arrested me. Most people seem unable to comprehend that officers are supposed to be servants of the public, rather than vice versa. In that light, officers ought to manifest deference to public citizens, rather than vice versa. Citizens should not be obligated to show deference to the police. Yet because the police are the police of the wealthy and have a long tradition of fighting the poor on behalf of the wealthy (e.g., killing and maiming to break unions and civil rights demonstrations), citizens are obligated de facto to show deference to them.
We arrived at the police station in front of the Concord State Reformatory. The nonchalant officer told me to get out. I got out. He directed me into the building. Again, I obeyed his every command. Again, I asked if he were going to read me my rights. Again, he did not respond. Inside, a couple of officers were talking but didn't even look at me. They were obviously used to men in cuffs. He directed me to a room. In that room, the Miranda Rights were dangling from the ceiling. The officer then finally read me those rights: “You have a right to remain silent...”
When he was done, he started asking me questions. “I thought you just told me I had the right to remain silent,” I said. “Yes, but not about this,” he mumbled. “Well, I'm going to remain silent until I have a lawyer,” I said. “If you don't talk, I'm going to lock you up for 24 hours,” he said. “Go ahead then,” I said. “I didn't do anything illegal.” He directed me into the jail area and into the first cell, where he uncuffed me, then ordered: “Take off your sneakers!” I took them off, put them outside the cell, then he shut and locked the door. Inside, everything was dark and painted thick navy gray including the cement slab bench without a cover or mattress. I lay down on it. Next to my head was a toilet without a seat and without toilet paper. On the wall on the other side of the bars were three or four typewritten pages. The writing was too small to read. Also, there was a sign: THIS AREA IS BEING VIDEO MONITORED AND TAPED. Indeed, two video cameras were affixed to the wall staring down into my cell. The minutes crawled. I had 24 hours of them with absolutely nothing to do. The constant sound of the air conditioner blowing in on me was peaceful though. But it was damn cold. I was shivering-didn't even have a towel to dry off-, dressed in tee shirt and wet bathing suit. It must have been 50 degrees. A great void of sensory deprivation soon overcame me.
It was sad, dreary cell. I quickly became saddened… and for all those people in jails: two million in America alone, 500,000 more than in Chinese jails, desperate or simply beaten and mentally crushed. I felt really and viscerally saddened. A tear came to my eye. “I want to make a phone call!” I said for the record, gazing upwards to the video cameras. “I need toilet paper! It's freezing in here! I want a blanket!” Nobody responded. Time went by. “I want to make a phone call!” I repeated. “I need toilet paper! I want a blanket!” Again, nobody responded. I sat up. I lay down again. “Et le poète soûl engueulait l'univers.” I said in French, standing up to face the video monitors. Then I repeated and improvised on that line from the poet Rimbaud: Et le poète soûl engueulait l'univers. J'engueule, moi, tous les mardeux d'Amérique. Qu'est-ce qui se passe, mon Amérique? Mon Amérique, pourquoi tu me fous en taule?”
“YOU WOULDN'T EVEN BE IN HERE, IF YOU HADN'T OPENED YOUR FUCKING TRAP!” hollered a black-haired, gestapo-looking officer who'd suddenly entered the cell area. “FUCK YOU!” I stood up angered, if not provoked. “WHO THE HELL DO YOU THINK YOU ARE? I SUPPOSE THE CAMERAS ARE BROKEN. I DIDN'T DO ANYTHING WRONG. IT'S FUCKING COLD IN HERE. I WANT A BLANKET! I WANT TO MAKE A PHONE CALL!” For some reason, he didn't come into my cell and beat me to death. He left with sadistic smile and slammed the cell area door. I lay back down. Only 23 more hours to go! The other cells were empty. I'd go crazy. I needed something to read, even something I could eventually use as toilet paper. I hated the sensory deprivation. What could I do, but lay down and close my eyes. I wished I had memorized poems or sections of essays that I could regurgitate. But I had nothing in my head, nothing but anger for the state of Massachusetts and America.
Finally, after a couple of hours, the arresting officer opened my cell, put the cuffs back on, and directed me back out to his car. We took off and arrived at the Concord Middlesex Court House. Inside, he dropped me off with a probation officer who asked questions. “I thought I had a right to remain silent,” I said. But she assured that her questions were simple fact questions to help identify me. “If you don't answer them, I'll send you up to Billerica state prison for the night!” said a less than amiable guard. “You know, I really don't feel like going to Billerica,” I said. “Ask me the questions.” “Smart choice,” said the guard.
I was put in another cell, where I waited and shivered and requested a blanket and got no response. An hour later, I was directed to the court where I stood on an elevated tribune next to another guy wearing shackles. I felt bad for him, realizing he was probably going to be staying in one of those nightmare cells long enough to break his mind and spirit. “Well, we don't know if he is who he says he is,” said the judge talking to the probate officer, regarding me. “So, we'll have to put him back in the cell until after lunch break.” The judge then ordered recess.
“These are yours!” said a guard, directing me down the hallway. “Hey, here's your license!” he said looking in the manila envelope. The implication was that there was the proof that I was who I was, but, well, tough luck, you'll have to go back into the cell for another hour and a half. I entered the cell; he shut and locked the door. THANK JESUS and THANK YOU JESUS were scraped on the yellow wall in front of me. A half hour later an officer came by and slipped a baloney and cheese sandwich on white bread accompanied by a generic orange soda through the food slot. I ate like a prisoner, slowly and unemotionally. I imagined the judge sitting in some fancy restaurant in Concord center, joking and having a good time.
An hour later, I was herded back out to the court in handcuffs. A few words were exchanged between the probate officer and the judge, who then ordered the cuffs removed, because he was now satisfied that I was who I was. “You can speak with Madame the Prosecutor to make a deal if you wish or come back for a hearing with or without a lawyer,” he said. “I'll speak with the prosecutor,” I said. I rubbed my wrists. Yeah, I was free. I walked down the hallway and met the prosecutor. “I'd like you to tell me what happened,” she said. I thus told her what happened. “I'm willing to drop the charges if you pay the $100 in court fees,” she said. “No, I can't do that,” I said. “I didn't do anything wrong. Why should I have to pay court fees? Do you know where my car is? It was towed by the arresting officer.” She knew nothing about the impoundment, seemed surprised, then said she'd look into it. I went back into court and waited and waited for the judge to get back to me. When he did he set a pretrial hearing since no deal had been struck. It was for November 5th. “If you do not show up, you will be arrested and spend 90 days in jail and will be fined $5,000,” said the judge. The prosecutor handed me a slip with the tow company name and address.
The sun was an inferno. I waited for my girlfriend, Jeanne, to pick me up... and waited and waited. I paced on the lawn of the courthouse while several officers cast dirty looks my way. I was a beaten man, quite depleted. It had been a very long day. Well, Nietzsche had said even the strongest men had moments of fatigue. I ended up walking five miles in the blazing heat back home. When I arrived, it was 5:30. Jeanne had thought I was going to call back. I hollered the guts of my wrath out upon her, then she drove me to the tow company, where I paid $95. Days later, I drove back to the police station to request a copy of the police report, which indicated: “Disorderly Conduct 272 F53.” Why had the prosecutor thought I'd be willing to pay $100 in court fees when the judge had mumbled, “fineable $50”? Well, I'd soon discover why after talking with the ACLU. “Because the judge can fine you some crazy amount if he wants to,” said the representative. “He can do anything. You could have been arrested at four o'clock and spent the night in jail or the whole weekend if it were a Friday. The judge will always take the policeman's side if there are no witnesses.” Perhaps the prosecutor realized that with no prior criminal record whatsoever, no resisting arrest and no complaints of threat, I was not the best candidate for the cell. The ACLU refused to represent me. The total lack of indignation expressed by the representative relative to what had occurred surprised me. Well, what should I have expected? “Where the hell is the ACLU?” had once said Lenny Bruce.
Since the ordeal, I, of course, have pondered it over and over and over. For example, what is disorderly conduct or public disturbance in the state of Massachusetts? I had no idea. The very term seemed vague and highly subjective, especially when totally nonphysical. It would seem that, in my case, it comprised a simple dispute between a citizen of the Commonwealth, myself, and a public servant or servants. The subjectivity of the charge is underscored by the fact that there were no other people present to support or not support claims made, though the officer noted in his report “visibly upset” people. It is nonetheless difficult for me to believe that even “visibly upset” people could put a person in a jail cell for four hours. If they were so “visibly upset,” couldn't they have simply walked away? Well, I didn't remember seeing a soul around, let alone “visibly upset” ones.
The police report noted: “Irate and Confrontational” and “Argumentative/Irrational.” Apparently, citizens can be arrested for being angry. They can be arrested for being confrontational and argumentative. In other words, a citizen should not argue with a public employee, or risk arrest by doing so. Yes, that was the real America I'd discovered. Yes, taping an officer can put you in jail for five years, and a cop can have your car impounded for no reason at all. That was what the ACLU confirmed.
The police report noted: “offensive and assaultive language.” The Forest and Parks Rules (Title 304, Chapter 12.00), which I found in the public library using Premise, notes “obscene language.” Clearly, in the absence of witnesses, the officer could have simply stated that I said “fuck” to him and the judge would have sided with him. The System clearly favors lying police officers over honest citizens. I tried in vain to find a list of illegal words that might have constituted “obscene language.” Clearly, because of vagueness, the charge of disorderly conduct may be applied arbitrarily and capriciously, which I assume is often done, a horrendous situation, but no less quite American. What words then pronounced in front of a public employee warrant arrest and incarceration? It is my humble opinion that no words should warrant such punishment. Indeed, and surprisingly, my research discovered that according to the statute, “mere use of obscenities in public does not make out crime of disorderly conduct (Com v. Johnson 1994).” In other words, I never even should have been pursued by the officer, let alone arrested, jailed and fined $95 by proxy. Now, who can justify paying the outrageous fees of a lawyer to obtain retribution?
There are so many questions and curiosities and inequities in our justice system. For example, why do so many people wrongly think they have a right to make a phone call when incarcerated? Surprisingly, the Concord Journal agreed with me on that point. Yet the editor, who called me up because of a letter-to-the editor I'd written wondering why my arrest had not been listed under the paper's police blotter, did not wish to inform people about that misconception. Nor was he interested in publicizing just how horrendous conditions are in the holding cells. Indeed, the cell where I was placed at the courthouse had toilet paper crumbled all over the floor.
Why do our schools not teach students basic rights? Sure, they teach the Bill of Rights, but not the basic everyday rights, nor that constitutional rights cost roughly $100,000 to defend. Why do so many of us know nothing about our basic rights or lack thereof? Must common citizens stay in their cars when an unmarked car arrests them? Does the law require citizens to stop for unmarked cars? What if I had forgotten my wallet and didn't have any identification? Would I have spent a week in a prison cell? Does the law actually provide a five-year felony charge for a citizen who records an officer's voice? If so, why did legislators enact such a horrendous law? Police lobby? Indeed, the police lobby is so powerful in Massachusetts that the governor himself had to back down when he tried to cut the gross excess of police moonlighting overtime. Why is the government and public education content to perpetuate ignorance of basic rights amongst the citizenry? Thoreau had asked that very question over 150 years ago. The government has yet to provide an answer.
Finally, I admit that deep down, while standing next to the officer's car, I was curious: Could he actually throw me in jail for having an argument and saying the word “fuck”? Indeed, as a writer, I was in need of an eye-opening jail experience. Every citizen should have one. How else can citizens attempt to comprehend those two million compatriots rotting behind bars? In any event, it is a sad day for America when a police officer stops a common citizen, refuses to tell him why he has been arrested and does not read him his legal rights. It is a sad day for America when a police officer stops a common citizen because of a nonviolent argument, arrests and incarcerates him for roughly four hours in a cold, concrete cell without mattress, without blanket, without toilet paper, and without that one phone call. It is a sad day for America when a common citizen without any prior police record is treated like that. It is a sad day when citizens are made to fear the law and police officers, rather than respect it and them. It is a sad day when police officers are not required to tell arrested citizens why they're arresting them.
The judges seem more concerned with keeping the police content than keeping the citizenry informed. It is a sad day when intelligent persons are not permitted to serve on the police force (see Boston Globe, 9/10/99, “Smarter than the average cop: Force's rejection of high-IQ applicant upheld”). It is a sad day when the community newspaper and ACLU don't give a damn about any of these things. But most of all, it is a sad day when the large majority of citizens do not care about their ignorance of the law, nor about the two million prisoners in America. Three months after my citizen ordeal, I am now ever on guard when leaving the house and fear getting into an argument, for I am by nature questioning and challenging, thus “confrontational.” From my citizen ordeal, I now sometimes hold my head lower and try to look obedient when in public. I keep my eyes peeled for the police when driving. I fear the law much more now though respect it much less, because I have come to realize that it is purposely vague and unpublicized, and that the greater our ignorance of it, the more power to the powerful, including the police. Most of all, I fear that the law will eventually make obedient automatons out of all of us. So what happened in court? Find out next week.