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Home » Archives » February 2005 » Account of trial from Critical Mass (8-27-05) arrestee James Nova:

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02/25/2005: "Account of trial from Critical Mass (8-27-05) arrestee James Nova:"

Last week, both of my criminal cases (five charges
total) were
consolidated into one, upon the advice of National
Lawyer's Guild president
Martin Stolar.
His concern was that I could
incriminate myself on the
witness stand -- which we are protected against by the
Fifth Amendment
(a/k/a "taking the Fifth") if the question of my
participation in other
Critical Mass rides came up.
We had to get permission
from the attorney
handling my August case to consent to the
consolidation and to turn
over the files to my new attorney for the October
case. The trial date
set for for the August case would now be for both.

After viewing all of the relevant videotapes collected
by the NLG
(which took two days) and the police video that has
been submitted as
evidence (including the high-tech infra-red digital
zoom helicoper video) I
only appear on police tapes after having been
arrested, never during any
of the rides and never on bicycle.
The only photo of
me with my
bicycle was provided by me, snagged off of Indymedia.
An audio CD made by
the police surfaced recently and my attorney requested
a copy of it from
the DA. The audio has the police saying well in
advance of the
gathering at St. Marks that they expected to make
about 500 arrests (though no
violations had even been committed!).
Also, the
October cop video
clearly showed the police waving riders through red
lights and diverting
riders from the printed route that they had
distributed at Union Square.
I was able to identify a lot of people on the videos
that hopefully
they can use in their trials.

Two days prior to the start of the trial, the Asst. DA
called my atty.
and said they were dropping the Oct. 29 (Halloween)
Critical Mass case
(involving 3 charges) altogether. Things were looking
up for the first

On the trial date (Thurs. Feb. 17 -- over 5 1/2 months
since the first
arrest and 4 prior court appearances) we first met in
JP2 (5th floor of
100 Centre St.). Again, the DA offered the ACD
(Adjournment in
Contemplation of Dismissal) which we again refused.
The trial was then moved
to Part 37, room 1600, judge Herbert J. Adlerberg
presiding. (Judge
Adlerberg is a retired state supreme court justice).
He has been handing
down decisions on RNC-related cases both directions.

The young, greased-back ADA had a TV/VCR brought in,
as well a
large-scale map of the St. Mark's Church area. While
the videotape was being
cued up, the bailiff was grumbling loudly about what a
ridiculous waste
of time all this was: "What's the point? What kind
of statement is
being made? Tomorrow it will all be forgotten! It's
stupid. We should
be trying murderers. Just take an ACD and be done
with it."

When the judge entered and called the court to order,
the clerk read
out the case and stated that "on August 27, 2004 the
defendent committed
the CRIMES of ..." The judge corrected him that I was
charged with
citations, not crimes.

After the attorneys gave their opening statements, the
"People's" first
witness was called to stand, lower Manhattan 9th
Precinct Commanding
Officer Captain James McCarthy, a/k/a the "white
shirt" who gave the
order to start making arrests at St. Marks on A27, and
whom I had the bad
luck of standing immediately in front of on that day.
McCarthy was
sworn in, hand on bible, a (unconstitutional)
situation which I was hoping
to personally avoid
. Through my attorney, I asked
that if had to take
the witness stand I wanted a secular oath with no

Capt. McArthy, after boasting of his 2000+ arrests,
then detailed how
he and other police precincts received special crowd
control training in
the weeks leading up to the RNC (Republican National
included watching videotapes from the '99 WTO "battle
in Seattle" and
reviewing intelligence which indicated that St. Marks
Church was going
to be a focal point for unrest. He then characterized
Critical Mass as
an "organization which engages in civil disobedience
to promote
environmental issues" and is "opposed to cars." This
characterization would be
repeated constantly throughout the trial by the ADA
and the police,

despite the fact that CM is a spontaneous, unorganized
event, attended by
many different groups, but mostly just unaffiliated
individuals with no
agenda other than bicyclist safety and solidarity.
It is a safe assumption that it was Times Up! that
they were actually
referring to. In his testimony, McArthy repeatedly
confused locations,
times, and the date in question, provided
contradictory statements
about who and what was blocking traffic, whether the
sidewalks were clear,
whether people were on bikes or not, and drew no
distinction between
bicyclists, spectators, neighborhood residents, or
people just
passing through. They were all "protestors" and it
was clear from this
point on that what was really on trial was protest
He said
that the "sea of protestors" were waving their bikes
over their heads,
chanting, though he could not recall any chants. We
then watched an
interminable videotape that switched between color and
black and white, had
stretches of just pavement or people's feet, and was
poorer in quality
than most of the amateur videos submitted to NLG.
only appeared
briefly at the end of the video, already in cuffs.
McArthy said he could
not forget me because I was standing in the middle of
the street, waving
my bike high over my head, and wearing very
distinctive green tennis
shoes, and that I refused to leave the street, even
after repeated orders
to do so -- all four of which were complete
He said that
only people refusing to disperse were arrested,
another lie. He also
said that he had seen me at countless other protests
over the years -- I
was a regular (perhaps true, but I doubt that he had
ever seen me, only
recently having been transferred from the 5th precinct
in Chinatown,
where I have never protested). In cross-examination,
he admitted that he
took no notes of that evening.
He denied that prior
to the RNC that
police actually facilitated CM and acted surprised
that it had been going
on for over nine years -- he said it was only for the
last two.

The next witness was my arresting officer, Sgt. Gary
Florencio, of the
Manhattan North Task Force, a/k/a the "riot squad."
He said that until
the RNC he had never heard of Critical Mass and had
never made any
arrests for protesting.
To date, I have the honor of
being his only
"protest-related" arrest. He also discussed his
RNC-specific training, which
included modifications to the "lines & wedges"
tactics, which seemed to
be a description of penning people in. Florencio also
remembered me
quite well, not because of my shoes -- which he
correctly identified as
black -- but because of my bullet hole-ridden
camouflage shirt
emblazoned with "Army - be all you can be: DEAD"
Officer Florencio then
proceeded to completely contradict Capt. McArthy's
testimony, stating that a
truck was blocking traffic, not bicyclists, and that
people and traffic
could proceed, even with the crowds. His testimony
was not too bad,
except when he characterized the event as "the riot."

He said that he
was standing within a few feet of McArthy when McArthy
ordered him to
arrest me, yet he never once saw me on my 35-pound
bicycle, and that I was
simply standing off to the side, holding my bike, and
that perhaps only
1 or 2 dispersal orders had gone out, as opposed to
the 10 or more
McArthy claimed.

Anti-war slogans were a major issue throughout the
trial, as the ADA
even read out the litany of them from stickers on my
bicycle: "End the
Occupation Now", "Bush Lies- Who Dies?."
Oddly, he
skipped the most
obvious one, which appeared in all six large, lurid
color photos of my bike
- "Don't Be A Sheep," which has festooned the back of
my bicycle seat
for twenty years.
Once I took the witness stand
(secular oath
successfully administered) the ADA then began throwing
ludicrous accusations
against me, including participating in some action in
Tomkins Square Park.

When he tried to allege that Critical Mass is an
organization and that
I am a member, he said "isn't it true that they
contact you to let you
know when and where these rides are going to take
place?" I responded
"No, Critical Mass is not an organization. It is a
tradition for the
last ten years that takes place on the last Friday of
every month -- all
around the world!"
He then said "isn't it true that
you don't have a
very high opinion of the cops?" -- which the judge
quickly shot down as
immaterial. He again drew the judge's wrath when he
asked me "and you
think that you are right in these opinions of yours,
don't you?
"Overuled! Stick to the facts!" In fact, the judge
repeatedly lost
patience with the ADA, accusing him of repeating
himself, of needless
time-wasting, and constantly asking questions not
germaine to the discon
citation, once shouting at the ADA,
"Give me a
break!". When the ADA asked
if I had a permit on me that day to allow me to
participate in the ride,
the judge interrupted with "Are you saying that a
person needs a permit
to ride a bicycle with other people?"
stammeringly answered
"M-m-maybe." The judge said "That's ridiculous.
Overruled. Move on!"
So much for parading!

When I was cross-examined by my attorney, I was able
to refute several
accusations when I noted that I have a compressed disk
in my back which
prevents me from lifting any heavy objects over my
head and that I have
never owned a pair of green shoes (I called my wife
over the lunch
break to confirm, even though the evidential photo
clearly showed that I
had black shoes on at the time of my arrest).

Like the opening statements, the closing remarks were
not spectacular
on either side, but merely restated that the evidence
did or did not
prove the charges and that the police were either
reliable or unreliable
witnesses. When my attorney tried to bring up
constituional violations
the judge shot her down that these arrests have
already been shown to
be constitutional (!?). On parading without a permit,

the judge
acquitted me and said that there was no evidence of
any parade or that I was
part of any kind of organized event.
On the
disorderly conduct charge,
for failure to disperse, he ruled quilty. I was a bit
taken aback, as
my attorney was, because no credible evidence was
given showing me
doing anything at all, only that I was present at some
My only
thoughts are that his rulings were more punishments to
the attorneys,
neither of whom gave very stellar performances. When
the judge ruled that I
would receive time served & no community service, the
ADA protested.

Edlerberg said "he was held at Pier 57 for 16 days (he
meant hours, but
who's to argue) -- I think that's enough!" and on
community service "I
think what he does for a living (pedatric cancer res.)
is public
service enough, don't you.!", the ADA timidly
responded, "I understand, your
honor, but that doesn't excuse disorderly conduct."
The judge ignored
him and got up from the bench, bored and fed up, and
left the room. I
was also given no fine.

On the way out of the courtroom, one of the court cops
whispered to me
"Keep on riding!" I have no idea if he was being
serious or mocking
me. I apologized to the witness -- another A27
arrestee whose case was
on this week -- for having to waste his time coming
down and then not
getting called to the stand. My attorney apologized
to me for being
inexperienced, but I told her that I don't think
anything we could have
done differently would have made any difference -- it
seemed the judge had
his mind made up from the beginning: against applying
the parading
issue to Critical Mass but also refusing to view the
event as police

Although I would have liked to have a total win, all
in all, it was as
mild a conviction as possible, with the judge even
coming to my defense
several times.

The only remaining thing to do was to go out to the
Kingsland avenue
warehouse in Queens to pick up the bike the next day.
I had to call my
attorney to contact the DA, because the case was still
listed as being
open, therefore they would not grant a release. The
fact that the bike
was still being held was outrageous, since it was
seized on the
Halloween ride and that arrest had already been thrown
But because the
cases were consolidated, they decided to hold on to
for as long as
possible. After obtaining the DA's release form (no
fee -- some have had to
pay $10 for it) I took that and the pink property
claim form out to the
warehouse -- a good hike on foot from the nearest
subway stop, where
they made me stand out in the bitter cold wind for 20
minutes while they
looked for the bike. Then my witness also showed up
to claim his bike.
After inspecting them carefully, he noted that his
cable locks were
missing and the chain was messed up. Mine looked OK,
except for a lot of
the stickers having been removed. However, when I got
it back to
Manhattan I noted that the bottom was missing from my
side basket.

Was it worth the fight, or should I have taken the ACD
and avoided the
hassle? Since I was arrested twice in 60 days -- and
did my best, I
thought, to avoid arrest -- the six month grace period
covered by the ACD
would have been to no benefit. I no longer have any
confidence that I
can do anything in public without some chance of
arrest, therefore an
ACD is not really a viable option for me.


(Personal statement that I was not given the
opportunity to make):

"My arrest and subsequent detention at Pier 57 --
along with the other
1800 peace and environmental activists arrested during
the RNC and
subsequent Critical Masses -- was for partisan
political reasons only and a
blatant violation of the First Amendment.

But, it is my hope that now Critical Mass will be
allowed to continue
-- as it has around the nation and the world, and for
nearly nine years
in New York, as a safe and legally-sanctioned event --
the purpose of
which is to help improve the quality of life for the
citizens of New
York. And may our efforts contribute to New York City
once again becoming
a beacon to the world for freedom and democracy."

- James Nova

Replies: 2 Comments

on Monday, February 28th, Dale Fink said

Thanks for recounting your trial. I was following the action on IndyMedia at the time, after attending the huge march on the even of the GOP convention

on Monday, February 28th, HL said

Dale, I was there too, check out the complete convention coverage on this site. Thanks

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