An Exercise of Prosecutorial Discretion

Law, Politics & Current Events

Recently former employees of Bank of America filed declarations in federal court asserting that the venerable bank had instructed them to lie to lull homeowners seeking mortgage adjustments. This, the ex-workers asserted, was systematic:

Employees, many of whom allege they were given no basic training on how to even use HAMP, were instructed to tell borrowers that documents were incomplete or missing when they were not, or that the file was “under review” when it hadn’t been accessed in months. Former loan-level representative Simone Gordon says flat-out in her affidavit that “we were told to lie to customers” about the receipt of documents and trial payments. She added that the bank would hold financial documents borrowers submitted for review for at least 30 days. “Once thirty days passed, Bank of America would consider many of these documents to be ‘stale’ and the homeowner would have to re-apply for a modification,” Gordon writes. Theresa Terrelonge, another ex-employee, said that the company would consistently tell homeowners to resubmit information, restarting the clock on the HAMP process.

Worse than this, Bank of America would simply throw out documents on a consistent basis. Former case management supervisor William Wilson alleged that, during bimonthly sessions called the “blitz,” case managers and underwriters would simply deny any file with financial documents that were more than 60 days old. “During a blitz, a single team would decline between 600 and 1,500 modification files at a time,” Wilson wrote. “I personally reviewed hundreds of files in which the computer systems showed that the homeowner had fulfilled a Trial Period Plan and was entitled to a permanent loan modification, but was nevertheless declined for a permanent modification during a blitz.”

Former employees say they were rewarded with bonuses and gift cards to Bed Bath & Beyond.

Surely we can count on the criminal justice system to address such allegations of fraud, yes? Our investigators and prosecutors will focus on what is important — what is meaningful — and invest scarce government resources accordingly.

Right?

Well, no. Prosecutions from the mortgage collapse and its aftermath are scarce. However, you can count on the criminal justice system to punish people for menacing the likes of Bank of America with children's chalk.

In San Diego City Attorney Jan Goldsmith, through Deputy City Attorney Paige Hazard, are prosecuting Jeff Olson for 13 counts of misdemeanor vandalism. Olson wrote slogans like "Stop big banks" and "Stop Bank Blight.com" in children's water-soluble chalk on sidewalks outside of Bank of America branches in San Diego.

Bank of America exercised its right to petition the government for redress of grievances (in this case, the grievance that someone was writing mildly critical things in children's chalk on their adjacent sidewalks) by repeatedly demanding that Olson be prosecuted:

"Any updates on this," Freeman wrote in an email to Miles and Deputy City Attorney Nicole Kukas obtained through a public records request.

Two minutes later, Kukas responded. "Thank you for checking in on this case. It is still under review. I will give you an update by the end of the week."

No update came. Ten days later, Freeman was back on the case.

"Any updates on a filing?"

"I appreciate your patience," wrote Officer Miles just three hours after Freeman's message. "I will forward this to the City Attorney."

Then on April 15, Deputy City Attorney Paige Hazard contacted Freeman with the good news. "I wanted to let you know that we will be filing 13 counts of vandalism as a result of the incidents you reported."

Deputy City Attorney Hazard, in further exercise of prosecutorial discretion, wants to be sure that the criminal trial of Mr. Olson focuses on his danger to the community and his defiance of the interests of the People of the State of California and the City of San Diego, and not on mere fillips and irrelevancies:

Judge Shore granted Hazard's motion to prohibit Olson's attorney Tom Tosdal from mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial.

Hazard had explained to the court that Bank of America should not have to suffer the grave costs of chalk removal from its adjacent sidewalks. After all, is there no justice?

Circumventing the rules, without permission, under the color of night, and now waiving a banner of the First Amendment, does not negate the fact that defacement occurred, a private business suffered real and substantial monetary damages, and Defendant is responsible.

Money that Bank of America spends asking its janitors to hose down the sidewalk is money it can't use to buy Bed Bath & Beyond gift cards for its employees who are top performers at defrauding mortgagees.

As we frequently discuss here, prosecutors enjoy astoundingly broad discretion to determine how people are charged and punished, and for the most part face no consequences for their actions. We're told such discretion, and such protection, is a necessary and reasonable component of the criminal justice system, and that we can trust the good judgment and good faith of prosecutors.

Consider Jan Goldsmith and Paige Hazard, and their exercise of discretion. Aren't you filled with warm feelings of trust and confidence in our system?

Last 5 posts by Ken White

104 Comments

104 Comments

  1. Kat  •  Jun 26, 2013 @1:12 pm

    I'm filled with the warm feeling that you get before you're about to heave your guts out, does that count?

  2. BCP  •  Jun 26, 2013 @1:13 pm

    A-holes everywhere. BofA for the reasons you cite; Olson for childishly claiming first amendment protection while (albeit barely) vandalizing property; the prosecutors for bringing charges in the first place; and the San Diego Reader for ensuring the sub-headline notes he faces 13 years!

    Keep firing A-holes!

  3. naught_for_naught  •  Jun 26, 2013 @1:15 pm

    Jeff Olson posted this in the comment section for the story published in the San Diego Reader:

    If your readers think that my case is an unconstitutional waste of limited municipal resources they should not be shy about letting Jan know that.

    People vs. Olson is case #M153987

    Jan Goldsmith can be reached at 619-236-6220 or cityattorney@sandiego.gov

  4. InnocentBystander  •  Jun 26, 2013 @1:32 pm

    Mr. Olson should have read the warnings on the children's chalk. "Using sidewalk chalk on sidewalks may result in felony conviction." What? No Warning? This should be a class action against Crayola!

  5. James Pollock  •  Jun 26, 2013 @1:33 pm

    Has the city attorney reached the obvious conclusion that if you treat people who vandalize with easily washable children's sidewalk chalk the same as they treat people who vandalize with expensive-to-remove spray paint, vandals will go ahead and use spray paint to spread their "messages"?
    This is going to cost the city of San Diego more than embarrassment.

  6. perlhaqr  •  Jun 26, 2013 @1:54 pm

    Judge Shore granted Hazard's motion to prohibit Olson's attorney Tom Tosdal from mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial.

    So, speaking of judges who are ignorant of the Constitution…

    So, obviously, IANAL. Ken, can you please explain to me–in very small words because I'm sure the explanation is going to make my head hurt–how the everloving fuck a judge can prohibit an attorney from mentioning the fucking Bill of Rights in his defence of a client?

  7. WDS  •  Jun 26, 2013 @1:55 pm

    The neighbor girl drew all over my sidewalk with chalk, and I didn't even have the expense of time to spray the sidewalk with a hose. If you wait long enough water will mysteriously fall from the sky.

  8. Shannon  •  Jun 26, 2013 @1:58 pm

    I'm no legal scholar, but since when do banks actually OWN the sidewalk outside their doorsteps? A FEW have their own buildings, but aren't most bank branches leased from a major property owner (such as a commercial REIT)? It would have been the owner or management company's responsibility in most cases, as it was outside. Moreover, if washable chalk is "vandalism" then how about the gross gum people spit out that actually sticks around (pun intended) for ages and could ostensibly end up on a shoe and in the bank branch's carpet. OR… what about actual vandalism like spray-painted buildings? Can't bother with that I see.

  9. perlhaqr  •  Jun 26, 2013 @2:05 pm

    WDS: Of course, depending on where you live, it might be a long wait. ;) (New Mexico, here…)

  10. James Pollock  •  Jun 26, 2013 @2:06 pm

    "If you wait long enough water will mysteriously fall from the sky."
    Although the wait can be considerable in southern California. Way longer, say, that where I live in the Pacific Northwest.

  11. machintelligence  •  Jun 26, 2013 @2:06 pm

    I see that the banks have taken a page from the health insurance companies' playbook. Stalling and "losing" paperwork has a long tradition there.

  12. Bagel  •  Jun 26, 2013 @2:07 pm

    @WDS: Yeah, but do you know how much a certified Rain Dancer costs? Invoking the heavens to open doesn't come cheap, man.

  13. desconhecido  •  Jun 26, 2013 @2:28 pm

    How can the judge prohibit a defense based on the 1st amendment?

    Well, the 1st is no justification for vandalism or other crime. You don't get to trespass without consequences or commit assault or impede traffic or a whole bunch of other stuff. Offering a 1st amendment defense seems on its face to be nothing more than an attempt at encouraging jury nullification and arguing for jury nullification is not something a defendant in a criminal proceeding has a right to do.

    It's going to be pretty tough to keep the jury from getting the idea, I would imagine. The nature of the "vandalism", it seems, displays the political motive of the defendant clearly and unless the jury is composed of sleeping morons it should be clear to the jury members that this is a trivial prosecution brought for the sole purpose of punishing a BoA critic.

    Although the defense may be prohibited from arguing for jury nullification, surely they will force the prosecution to adhere to all rules of evidence and procedure. Seems likely that a beyond reasonable doubt defense may be in order, if only as a fig leaf for jury nullification.

    But then, IANAL.

  14. James Pollock  •  Jun 26, 2013 @2:29 pm

    Any possibility we get the chalk manufacturers on vicarious liability? They CLEARLY envisioned people using their products to vandalize; it's right in the name of the product ("sidewalk chalk").

  15. Ryan  •  Jun 26, 2013 @2:32 pm

    I, too, am as perplexed as perlhaqr. How can a judge prohibit defense counsel from raising Constitutional rights in the defense of a client? Is the defendant not entitled to mount a full defence in this case?

    Also – 13 years for sidewalk vandalism is ample evidence some of the sentencing provisions in certain American states are well and truly out in crazyville.

  16. desconhecido  •  Jun 26, 2013 @2:34 pm

    The bank does not own the sidewalk. That's why the BoA douche bag had to hector the prosecutor into making it a criminal matter. BoA is not a party. If BoA property were involved they could punish the defendant with a civil suit.

  17. James Pollock  •  Jun 26, 2013 @2:40 pm

    "How can the judge prohibit a defense based on the 1st amendment?
    Well, the 1st is no justification for vandalism or other crime."

    The defense would argue that the number of prosecutions for sidewalk chalk "vandalism" is zero, despite countless events of sidewalks defaced with chalk. What's different about this one, then? Why the CONTENT of the chalk messages. And what does the first amendment say about content-based restrictions?
    The prosecutor's must have some VERY persuasive writers to have gotten a judge to skip over that and rule in their favor.

  18. desconhecido  •  Jun 26, 2013 @2:41 pm

    Ryan

    The question before the court is whether or not the defendant is guilty of vandalism. If the defendant believes that the law he is charged with violating somehow violates the 1st amendment, that should be a question for an appellate court. Even if the court were to consider the 1st amendment question, it still isn't a question for the trier of fact (the jury, assuming this will be a jury trial). Juries don't decide questions of constitutionality, do they? Again, IANAL.

  19. James Pollock  •  Jun 26, 2013 @2:43 pm

    "If BoA property were involved they could punish the defendant with a civil suit."
    That could backfire. I suspect BOA would struggle to win a jury trial, would generate huge publicity for the sidewalk vandal, and there's a good possibility he's judgment proof (darn 99% with no assets left to steal).

  20. desconhecido  •  Jun 26, 2013 @2:44 pm

    James Pollock

    Ok, if there is a valid 1st amendment argument is it proper to make it in a motion to the court or, if defendant loses, in an appeal, or is it a proper question to put before the trier of fact?

  21. Ancel De Lambert  •  Jun 26, 2013 @2:46 pm

    @BCP It's not their property, it's the sidewalk, it's city property. No sensible human being would consider this vandalism. Especially when a light drizzle would remove it.

  22. James Pollock  •  Jun 26, 2013 @2:48 pm

    desconhecido, you are correct that district courts are charged with determining facts and appeals courts are supposed to deal solely with questions of law. However, district courts are expected to apply law correctly (and do, most of the time).
    Constitutional challenges come in two types. In one type of case, the defense argues that the law has no constitutional appllications and if they are correct, the law is stricken; the other type is called an "as applied" challenge… the law is fine most of the time, but under this particular fact pattern it is not constitutional to apply it. That's a fact-intensive query, suitable for a district court.

  23. desconhecido  •  Jun 26, 2013 @2:57 pm

    " That's a fact-intensive query, suitable for a district court."

    Suitable for consideration by the court or by the jury?

    Again, IANAL. But it seems that trying to assess whether this application of the vandalism law violates the 1st amendment would be a question for the judge and not for the jury (if there is a jury). Is this sort of question ever put to a jury rather than being disposed of by a ruling on a motion?

  24. WDS  •  Jun 26, 2013 @3:12 pm

    I predict that if someone had drawn a pretty BOA logo on the sidewalk in chalk they would not now be facing charges.

  25. Tori  •  Jun 26, 2013 @3:26 pm

    13 counts, 13 years, $13,000… http://www.shouselaw.com/vandalism.html

    IANAL, but it appears that the maximum for vandalism under $400 is 1 year/ $1,000 under California law. The question is, if convicted and sentenced to the maximum penalties do they have to be served consecutively or can they be served congruently?

  26. desconhecido  •  Jun 26, 2013 @3:32 pm

    James Pollock:

    "The prosecutor's must have some VERY persuasive writers to have gotten a judge to skip over that and rule in their favor."

    I like the argument (the one you posed) and probably agree with it.

    As to whether the judged needed much convincing, I doubt it. He's an elected superior court judge so his primary consideration is maintaining electability. A ruling against the prosecution won't win any votes but might cost some. So, rule against the defense and either the verdict goes against the prosecution or the case gets tossed on appeal. Seems like a low risk strategy for an elected official.

  27. Richard  •  Jun 26, 2013 @3:35 pm

    I understand the city attorney indicated that there need be no fear that children drawing on the sidewalk with chalk would be pursued as vandals. This suggests that the prosecution is on account of the content of his message rather than the "damage" to public property.

  28. AlphaCentauri  •  Jun 26, 2013 @3:44 pm

    Olson spent his time writing the messages in hopes that someone would see his message and learn about the legislative issue. But the only people who normally would have seen it would be the first people to walk across the sidewalk, as their feet trampling would rapidly obscure it, rain or not.

    But BoA has managed to make the message more widely viewed than he could have ever have hoped. I suspect he would have been willing to risk arrest for that kind of publicity. People considering buying a home and getting a mortgage may well keep all this in mind.

  29. Christina  •  Jun 26, 2013 @3:59 pm

    It is unfortunate the SoCal doesn't get much precipitation, but I'm happy to collect a bucket of piss for BoA to rinse the chalk away.

  30. Matthew Cline  •  Jun 26, 2013 @4:24 pm

    The defense would argue that the number of prosecutions for sidewalk chalk "vandalism" is zero, despite countless events of sidewalks defaced with chalk. What's different about this one, then? Why the CONTENT of the chalk messages. And what does the first amendment say about content-based restrictions?

    So the 1st Amendment defense applies to selective enforcement of a content-neutral law?

  31. Adin  •  Jun 26, 2013 @4:43 pm

    We were caught in this in 2006….not only did they lie, but they also violated the soldiers and sailors act in the process (I became disabled while on active duty but not receiving pay due to reserve vs active unit issues). I hope to see them fry—I wish I could turn back the clock to help them fry (at the time we were naive and just attempting to survive).

    There's got to be some way to prosecute these scammers!? ::sigh::

  32. Roscoe  •  Jun 26, 2013 @4:58 pm

    The Deputy City Attorney is named Paige Hazard? Really?

    With a name like that she should be doing something cool, like being an agent with SHIELD, not being a leg breaker for Bank of America.

  33. epador  •  Jun 26, 2013 @5:02 pm

    Well, I had been waiting for an excuse to take my late Dad's money to another Bank, now I have one.

  34. Anonymous  •  Jun 26, 2013 @5:21 pm

    People, people… Haven't you all heard of the Golden Rule? As in… "Them what has the gold, makes the rules"?

    Oh, wait… you thought the law was supposed to treat everyone equally? Oh, they're so charming when they're naive.

  35. AlphaCentauri  •  Jun 26, 2013 @5:30 pm

    @Matthew Cline

    So the 1st Amendment defense applies to selective enforcement of a content-neutral law?

    There is a real question whether drawing on a public sidewalk with a product sold to children under the name "Sidewalk Chalk" actually constitutes criminal "vandalism." If so, the public schools in my town are taking the children outside at recess and giving them the tools to commit vandalism.

    If you want to buy spray paint in my town, you have to be over 18, and the clerk has to unlock the display case to give it to you. If you want sidewalk chalk, you go to a toy store. It's pretty clear this is a content-based prosecution, not selective prosecution of a content-neutral law.

  36. central texas  •  Jun 26, 2013 @5:38 pm

    @desconhecido

    If the Bill of Rights is only available at the whim of the judge, then it would seem to me that the judge could just do away with the quaint notion of a jury trial and thus avoid any nullification problems.

    But as you say, IANAL. And we live in strange times.

  37. En Passant  •  Jun 26, 2013 @5:49 pm

    Richard wrote Jun 26, 2013 @3:35 pm:

    I understand the city attorney indicated that there need be no fear that children drawing on the sidewalk with chalk would be pursued as vandals. This suggests that the prosecution is on account of the content of his message rather than the "damage" to public property.

    From the SanDiegoReader.com article Ken cited above:

    But Deputy City Attorney Hazard previously stated that, to the City, motivation was a distinguishing element in bringing this case:

    "The People do not fear that this reading of section 594(A) will make criminals of every child using chalk. Chalk festivals may still be permitted. Kids acting without malice may still engage in their art."

    After I bemoaned that the anti-SLAPP Code of Civil Procedure 425.16 doesn't apply to criminal prosecutions, I wondered if a long shot motion based on selective prosecution might have some traction.

    I wonder about that long shot because Mr. Hazard is on the record misstating the meaning of "malicious" in the statute, and using his own misstatement of law as a reason for prosecution. I think "malicious" is synonymous with "intentional, while knowing it is against the law" in this statutory context.

    Children draw with chalk just as intentionally as adults, and they know it is against the law. If Mr. Hazard will not prosecute children for chalking sidewalks, he may be prosecuting Mr. Olson for an improper or unconstitutional purpose.

    Maybe a discovery motion would have some traction, for all communications between Mr. Hazard's office and BofA. Such records could show that Mr. Hazard brought the charges specifically to interfere with Mr. Olson's freedom of speech, while he refuses to interfere with children's freedom of exactly the same speech.

    It's a near looney long shot. But it might make for interesting press.

  38. That Anonymous Coward  •  Jun 26, 2013 @6:09 pm

    I think the polite phrase I am looking for is, Unfit for the Bench.
    I think the impolite way of saying it is, this Judge needs to be removed from the bench, the DA needs to be removed from office, and there needs to be a serious investigation into what the ever loving fuck motivated these people to ignore the law of the land and pursue what clearly looks like a vendetta of a large bank against someone expressing their dislike for them.

    But in a country where people protesting BoA had their information dumped into Terrorist Fusion Centers to be investigated and legitimate threats of murder against protesters ignored we shouldn't expect any more I guess.

  39. Dan Weber  •  Jun 26, 2013 @6:59 pm

    in children's water-soluble chalk

    I've heard some people say that sometimes this is actually hard to get off the ground — you can't just hose it away like I first thought. BoA claimed it cost them $450 to clean each instance up, which I could certainly believe they lied about or purposefully inflated, but it doesn't necessarily follow.

    but since when do banks actually OWN the sidewalk outside their doorsteps?

    Probably as much as they won the building. I own the sidewalk in front of my house. I'm required to maintain it, too. This will vary by local custom.

    13 years

    Yes, that is the maximum. It's not going to be the maximum. It's been a topic here before.

    I don't think that the vandalism is something to just laugh away, but it is something that you should handle for a first-time offender with a very small fine or some community service cleaning up the town.

  40. AlphaCentauri  •  Jun 26, 2013 @7:05 pm

    How often does BoA wash the sidewalk in front of its bank if it's dirty from people walking on it? How often does it scrape up the gum?

    The sidewalk chalk will quickly wear off when people walk over it, even if it doesn't rain. It's only the content of the message that made them feel it was an emergency to remove it immediately rather than allowing it to wear off on its own over the course of the day. (I'm assuming these messages were at busy locations, where there were a lot of pedestrians to see it/walk on it.)

  41. Dan Weber  •  Jun 26, 2013 @8:12 pm

    Well, yeah. If I write "The Guy Who Lives Here Sucks" on your sidewalk, you're going to (hire someone to) remove it quickly. If I keep it up for a few months, you're going to call the cops.

    Now, the cops should just give me a talking-to, and as a first-time offender I should get some community service.

  42. WDS  •  Jun 26, 2013 @8:40 pm

    @Dan Weber

    Assuming that you don't suck, then the proper response might be a libel suit. It isn't criminal vandalism.

  43. LauraW  •  Jun 26, 2013 @8:42 pm

    @perlhaqr:
    how the everloving fuck a judge can prohibit an attorney from
    mentioning the fucking Bill of Rights in his defence of a client

    Hmm, do any of the lawyers out there know if this workaround would work?

    Defense counsel: So, Mr. Olsen, why did you write on that sidewalk?

    Olsen: Why, I wanted to exercise my first amendment rights!

    I'm guessing the judge would immediately tell the jury to ignore that exchange. But it's hard to un-hear things.

  44. Paris S  •  Jun 26, 2013 @8:50 pm

    I am not a lawyer, but I recommend Mr. Olsen file a formal civil rights complaint with both the US and California Attorneys General.

  45. WDS  •  Jun 26, 2013 @8:54 pm

    Also @Dan Weber

    There is a difference between owning and being required to maintain. I'm required to maintain (mow, etc) the grass between the sidewalk and the street in front of my house, but that doesn't change the fact that it is on City ROW, and they can come along and widen the street anytime they want and not give me a penny. As a matter of fact they might give me an assessment to make me help pay for the widening.

  46. Christenson  •  Jun 26, 2013 @9:19 pm

    http://www.techdirt.com/articles/20130621/12115023559/suburban-express-wants-round-3-re-files-against-customers.shtml

    @Patrick Non-White: link is self-explanatory; Dennis Toeppen is trying very hard to put Suburban Express out of business. Techdirt wants more Popehat/Streisand coverage…..

  47. James Pollock  •  Jun 26, 2013 @9:49 pm

    "Probably as much as they won the building"
    They probably don't own the building.

  48. Andy  •  Jun 27, 2013 @2:56 am

    "for its employees who are top performers at defrauding mortgagees"

    Small nitpick – the customers are the ones mortgaging their property, they are the mortgagors. The bank is the mortgagee.

    Sorry, I'm sure this breaks a no nitpick rule or something…

  49. machintelligence  •  Jun 27, 2013 @4:48 am

    Something you might appreciate. http://thecomicninja.wordpress.com/tag/vandalism/

  50. Anonymous Coward  •  Jun 27, 2013 @6:00 am

    Ken White for president. Please? Pretty please?

  51. Paco McPaco  •  Jun 27, 2013 @7:14 am

    If you wait long enough water will mysteriously fall from the sky.

    Though, as a Phoenix resident, that wait may be months.

  52. Nicholas Weaver  •  Jun 27, 2013 @7:31 am

    Actually, this is less uncommon than you think. In Napa there was a case recently of a 9/11 truther arrested and threatened with prosecution for felony vandalism for chalking the sidewalk.

    The DA backed off after a storm of protest, as it went viral.

  53. WDS  •  Jun 27, 2013 @8:20 am

    @machintelligence

    That Calvin & Hobbs strip should be the first exhibit in the trial.

  54. Justin Parker  •  Jun 27, 2013 @8:46 am

    Tomorrow I am closing the BofA account which I inherited, and putting the money into Rio Grande Credit Union. I hope they read this, and I hope they try to slap Popehat with a Streisand-effect-inducing lawsuit.

  55. NM  •  Jun 27, 2013 @8:46 am

    You know why the legislature sucks?

    Back in 1995, the 9th Circuit found that vandalism in California could not be committed with chalk. Mackinney v. Nielsen (9th Cir. 1995) 69 F.3d 1002.
    Rather than accept a well reasoned decision, the legislature immediately modified the statute to remove the language removing liquid and changed the language to "defaces with graffiti or other inscribed material" which our glorious Cal 2nd decided applied to a dry erase pen. In re Nicholas Y. (2000) 85 Cal.App.4th 941.

    Criminal law in the state sucks.

  56. Nobody  •  Jun 27, 2013 @10:13 am

    I never knew this about how HAMP was manipulated by the banks. I wonder, could borrowers win a big class action against them for doing that? All sorts of dirtiness would come out in discovery; maybe make it politically difficult to protect the banks.

  57. Justin  •  Jun 27, 2013 @10:19 am

    If I was the Deputy City Attorney, I'd probably be hoping that the defense focuses on the first amendment instead of the alternative–that I'm a corporate patsy and that's the only reason we're here.

  58. Paul Alan Levy  •  Jun 27, 2013 @10:45 am

    For readers who wish to communicate their disapproval of this exercise of prosecutorial discretion directly, Paige Hazard can be reached at phazard@sandiego.gov

  59. Dan  •  Jun 27, 2013 @11:40 am

    @WDS
    "WDS sucks" isn't defamatory–it's a protected statement of opinion.

  60. C. Ellis  •  Jun 27, 2013 @11:44 am

    BoA is one of the most backward places on the map; the reason they exist is because they take over small and regional banks to make up for the exodus shortfall on their ledger. Even their name is not their own; they're NationsBank but because their name polled so low they took over BoA just to get their name. I worked there for a very short time (previous employer moved to India) but left the moment I could. Let's just say the experience led me to coin the nickname "incompetence incorporated".

  61. Jesse W  •  Jun 27, 2013 @11:54 am

    As a SD resident, I just called the City Attorney's office. The person who picked up seemed very familiar with the issue, took down my name and phone number, and my comment (that it was a spectacular waste of city resources, and that the charges should be dropped). I encourage others to do the same.

  62. Doug Porter  •  Jun 27, 2013 @12:12 pm

    as to the 'expense' that BofA allegedly incurred in this situation, they pay dues to TWO business improvement/maintenance districts that offer no cost graffiti removal.

  63. WDS  •  Jun 27, 2013 @12:15 pm

    @Dan,

    You just made my argument for me. If the statement is not defamation, and is protected, then why should writing it on the sidewalk in chalk be anymore vandalism than drawing a flower on the sidewalk in chalk?

  64. Personanongrata  •  Jun 27, 2013 @3:21 pm

    Little men serve the letter of the law, great men serve justice* and cretinous fractions of humans beings serving the state seek to destroy the weak.

    * Paraphrasing J.C. Marino, Dante's Journey

  65. Roscoe  •  Jun 27, 2013 @3:37 pm

    Okay, thinking about this a bit more, I am not sure I disagree with what it going on here.

    First, as to the judge ruling that Olson doesn't have a First Amendment defense, that is how it is supposed to work. Whether one's speech or actions are protected by the First A is a legal issue which should always be decided by the court.

    Turn it around. If a guy goes on trial in Texas for burning a flag, does anyone think the issue of whether his conduct was protected by the First A should be tried to a jury?

    As for whether the judge should have ruled that the prosecution encroached on Olson's First A rights, I would like to know a little more. For example, who owns the sidewalk? I don't think anyone has a First A right to scrawl "Roscoe is a Drunk" on my house every morning (true though it may be), even if it is easy to wash off.

    Finally, there is the issue whether the prosecution should have been brought. I think I need to know a lot more here as well. For example, I would like to know whether, before the prosecution, the City attempted to get Olson to voluntarily cease his conduct. If they did, how strenuous were the attempts?

    Bottom line – If he was writing on the bank's sidewalk and ignored repeated requests that he please stop followed by repeated warnings if he didn't stop, well, at some point the law has to be enforced.

  66. sorrykb  •  Jun 27, 2013 @4:21 pm

    Anonymous Coward (but not That Anonymous Coward) wrote:

    Ken White for president. Please? Pretty please?

    [scene: The Capitol]
    "MISTER SPEAKER, THE PRESIDENT OF THE UNITED STATES!"
    [President White strides purposefully to the lectern. An expectant hush falls over the chamber.]
    "Snort my taint."
    [Exits.]

  67. AlphaCentauri  •  Jun 27, 2013 @4:23 pm

    There has been a lot of case law regarding free speech on public sidewalks in front of private businesses, especially in labor or pro-life picketing. I found what looks like a nice summary, from a pro-life group:
    https://www.liberty.edu/media/9980/attachments/resource_picket_parade_demonstrate_witness_chptr_14.pdf

    It doesn't address sidewalk chalk, however.

  68. barry  •  Jun 27, 2013 @4:26 pm

    Is it that the dishonest behavior of banks is not surprising that it's hardly even news? And throwing one Wall St fraud into prison for several lifetimes should 'balance the books' and calm the rabble for another decade or so.

    Or is it not worth getting upset about because everyone knows they're 'too big to convict'? If anyone is prosecuted, I bet it's the employees, and I won't even notice that because I'm as easily distracted by chalk as anyone.

  69. Manatee  •  Jun 27, 2013 @5:30 pm

    @WDS "You just made my argument for me. If the statement is not defamation, and is protected, then why should writing it on the sidewalk in chalk be anymore vandalism than drawing a flower on the sidewalk in chalk?"

    No, he really didn't. Vandalism (at least most places I've lived) is a completely content neutral crime, in terms of both message and veracity. If I key "WDS Loves Ponies" into your car, I have vandalized your car regardless of whether or not that statement is true. Libel is an issue completely separate to the criminal charges: If you do not, in fact, love ponies, you could sue me for defamation. The thing is, if I had picketed City Hall with a sign saying "WDS Loves Ponies," you could still sue me for defamation, despite the fact that the medium I used to defame you was not vandalism.

    Spray painting "Bank of America sucks!" on a Bank of America is vandalism. Spray painting "Bank of America would never, ever defraud its customers to increase profits" is also vandalism. Spray painting a pretty flower: still vandalism. If drawing flowers on the sidewalk in chalk should not be considered vandalism, then it should be considered non-vandalism solely because of the nature of the medium (lack of permanent damage to the thing being "vandalized," negligible effort/cost to remove). If that is the accepted standard, then it should be applied evenly to all sidewalk chalk based graffiti, regardless of the content.

  70. Noah Callaway  •  Jun 27, 2013 @6:12 pm

    IANAL but the "content based selective-enforcement" argument weighs pretty strongly with me in this case.

    The city argues that the difference between enforcing this case and other side-walk art cases is motive. That seems to be very, very close to arguing that the difference in enforcing this case is content. His motive wasn't (based on what I've) to vandalize property, it was to spread a message.

    For lawyers: is there any possible reasonable interpretation of the judge ruling that FA issues can't even be brought up?

  71. Deathpony  •  Jun 27, 2013 @6:45 pm

    @sorrykb

    I would be looking forward to the first ever "State of the Taint" address.

    "My fellow Americans, today my taint remains musty, crying out for the sweet presence of a well placed snort. Give me your censorious douchebags, your ninnyhammers yearning to be free, and I will give them what they deserve. Ask not what your government can do for you, but what taint you can snort for your government."

  72. Deathpony  •  Jun 27, 2013 @6:56 pm

    @Noah Callaway

    Im not an American lawyer, so probably not helpful, but I guess I would look at the actual text of the law he has been cited under. If no element of proving that case remotely addresses the question of the content of the graffiti, then a court might be within its rights to bar pleadings that dont actually address the elements of the crime being charged or any possible defenses to that crime as laid out in statute.

    It would be like seeking to lead evidence as to state of mind in defending a charge with a strict liability construction.

    Now, it may be that the law itself may be constitutionally invalid if it purports to ignore content and be blind to whether the markings are speech, even potentially protected speech, but that is probably outside the jurisdiction of this court anyway. By all means appeal on that basis.

  73. WDS  •  Jun 27, 2013 @7:09 pm

    @manatee

    I'm trying to figure out what is different between your position and mine.

    Either drawing on the sidewalk in chalk is vandalism, which means we need to round up a whole lot of 8 year old girls, or it isn't, which means prosecuting this case is BS.

  74. Allen  •  Jun 27, 2013 @7:50 pm

    The Humpty Dumpty Clause: The law is exactly what I say it is, when I say it is.

    It's a beautiful thing when you think about it.

  75. James Pollock  •  Jun 27, 2013 @8:43 pm

    "If no element of proving that case remotely addresses the question of the content of the graffiti, then a court might be within its rights to bar pleadings that dont actually address the elements of the crime being charged or any possible defenses to that crime as laid out in statute."
    The defense that seems most relevant is an "as-applied" challenge. That is, the law is not INHERENTLY infringing on first amendment rights, but in this case, with this case's facts, it is. Specifically, if the city declines to pursue vandalism charges against nearly all other cases of sidewalk-chalking (or if previous case law suggests that sidewalk chalking is protected speech), then there is a first-amendment defense even if the act of chalking statements critical of large businesses meets all the elements of the vandalism statute.

    " it may be that the law itself may be constitutionally invalid … but that is probably outside the jurisdiction of this court anyway."
    A law which is unconstitutional, either in toto or as applied, is void. There is never a court for which a constitutional challenge is out of the jurisdiction of the court.

  76. Michael K.  •  Jun 27, 2013 @11:04 pm

    One wonders if Hazard has a sidewalk outside her home, and how much chalk it would take to scrawl "Paige Hazard is a BoA bully."

  77. En Passant  •  Jun 28, 2013 @6:15 am

    Deathpony wrote Jun 27, 2013 @6:56 pm:

    Im not an American lawyer, so probably not helpful, but I guess I would look at the actual text of the law he has been cited under. If no element of proving that case remotely addresses the question of the content of the graffiti, then a court might be within its rights to bar pleadings that dont actually address the elements of the crime being charged or any possible defenses to that crime as laid out in statute.
    I think that is what's happening here.

    NM writing Jun 27, 2013 @8:46 am above, nailed the problem with the statute:

    Rather than accept a well reasoned decision, the legislature immediately modified the statute to remove the language removing liquid and changed the language to "defaces with graffiti or other inscribed material" which our glorious Cal 2nd decided applied to a dry erase pen. In re Nicholas Y. (2000) 85 Cal.App.4th 941.
    The relevant definition is in Cal. Penal Code Section 594(e):
    (e) As used in this section, the term “graffiti or other inscribed material” includes any unauthorized inscription, word, figure, mark, or design, that is written, marked, etched, scratched, drawn, or painted on real or personal property.

    Yes, children chalking hopskotch squares on sidewalks could be convicted under PC 594. But in press statements the prosecutor has slyly attempted to insinuate that motive is an element of the crime.

    The problem is twofold. First the legislature, in its usual headlong rush to both appear "tough on crime" and to deliver the goods for its highest bidding non-voting constituents, amended the law to invite selective prosecution. Second, the prosecutor accepted that gracious invitation and selectively prosecuted.

    The Turner case (covered elsewhere at Popehat) indicates it would also be a crime to even mildly suggest that hanging, drawing and quartering would be appropriate for the legislators, BofA executives and prosecutor. So I won't offer that suggestion.

    Instead, I'll mildly suggest that any prosecutor who, in any court filing, demonstrates ignorance of the difference between "waiving" and "waving", should be subjected to a rigorous review of his qualifications to practice law by the appropriate licensing authorities.

    Yes, that was a good old fashioned splelling falme. And yes, the prosecutor deserved it.

  78. En Passant  •  Jun 28, 2013 @6:18 am

    Dang! Forgot to close a block quote. So …

    Deathpony wrote Jun 27, 2013 @6:56 pm:

    Im not an American lawyer, so probably not helpful, but I guess I would look at the actual text of the law he has been cited under. If no element of proving that case remotely addresses the question of the content of the graffiti, then a court might be within its rights to bar pleadings that dont actually address the elements of the crime being charged or any possible defenses to that crime as laid out in statute.

    I think that is what's happening here.

    NM writing Jun 27, 2013 @8:46 am above, nailed the problem with the statute:

    Rather than accept a well reasoned decision, the legislature immediately modified the statute to remove the language removing liquid and changed the language to "defaces with graffiti or other inscribed material" which our glorious Cal 2nd decided applied to a dry erase pen. In re Nicholas Y. (2000) 85 Cal.App.4th 941.

    The relevant definition is in Cal. Penal Code Section 594(e):

    (e) As used in this section, the term “graffiti or other inscribed material” includes any unauthorized inscription, word, figure, mark, or design, that is written, marked, etched, scratched, drawn, or painted on real or personal property.

    Yes, children chalking hopskotch squares on sidewalks could be convicted under PC 594. But in press statements the prosecutor has slyly attempted to insinuate that motive is an element of the crime.

    The problem is twofold. First the legislature, in its usual headlong rush to both appear "tough on crime" and to deliver the goods for its highest bidding non-voting constituents, amended the law to invite selective prosecution. Second, the prosecutor accepted that gracious invitation and selectively prosecuted.

    The Turner case (covered elsewhere at Popehat) indicates it would also be a crime to even mildly suggest that hanging, drawing and quartering would be appropriate for the legislators, BofA executives and prosecutor. So I won't offer that suggestion.

    Instead, I'll mildly suggest that any prosecutor who, in any court filing, demonstrates ignorance of the difference between "waiving" and "waving", should be subjected to a rigorous review of his qualifications to practice law by the appropriate licensing authorities.

    Yes, that was a good old fashioned splelling falme. And yes, the prosecutor deserved it.

  79. David  •  Jun 28, 2013 @7:19 am

    Regarding the argument "if 1st amendment does not come into play, the content of the drawing does not make a difference": I can't agree with that entirely: offensiveness as such is not protected free speech.

    For example, a drawing of genitals and swear words may warrant a speedier cleanup than a drawing of a flower. The difference is clearly in content, yet claiming that the gist of the 1st amendment requires that a cleanup is considered to be just as urgent as the cleanup of a flower seems silly to me.

    Now what is the difference here? The intent and likelihood to cause harrassment or annoyance.

    If the main intent of the chalk drawer was to cause annoyance or harrassment, then any additional cleaning costs due to the urgency of the cleanup may reasonably be tried to be laid on him.

    So what makes the difference regarding the "cleanup urgency" is the "mere harrassment" angle.

    If we are taking a look at the message, it does not look like its major intended recipient is the bank. Rather it is passers-by and customers.

    In that case, it's rather hard to argue that the character can be correctly judged without even thinking about "free speech".

    But the duty of the jury is finding of facts, not findings of law. Whether the first amendment applies is a question of law, so I find it reasonable to not confuse the jury with matters of law. They only have to find about what has transpired, not what its legal meaning is supposed to be.

    Of course, there is a danger then that the jury applies common sense and basic constitutional instinct and just does a jury nullification, taking the matter of law into their own hand.

  80. naught_for_naught  •  Jun 28, 2013 @7:47 am

    @David

    "offensiveness as such is not protected free speech."

    This is another rephrasing of the common misconception that the 1st amendment protects people from being offended. This is simply not the case.

  81. Ron Larson  •  Jun 28, 2013 @8:28 am

    The judge in the case has now issued a gag order.
    http://www.sandiegoreader.com/weblogs/news-ticker/2013/jun/27/judge-issues-gag-order-in-case-of-man-prosecuted-f/

    Sounds like they can't handle any criticism.

  82. James Pollock  •  Jun 28, 2013 @9:18 am

    "For example, a drawing of genitals and swear words may warrant a speedier cleanup than a drawing of a flower. The difference is clearly in content, yet claiming that the gist of the 1st amendment requires that a cleanup is considered to be just as urgent as the cleanup of a flower seems silly to me"

    Indecency is covered by the first amendment; obscenity is not.

  83. perlhaqr  •  Jun 28, 2013 @9:46 am

    It is my opinion that Judge Howard Shore is an oral consumer of hobo colostomy bag contents.

  84. Noah Callaway  •  Jun 28, 2013 @9:52 am

    @Deathpony

    I suppose that explanation makes sense. Vandalism charges are, theoretically, content-neutral.

    I'd still want to make an 'as-applied' argument that the charges are being brought because of their content. It seems reasonable for the judge to prevent a FA argument in front of the jury, since that is a matter of law, not fact. I'd hope he is still willing to consider briefs based on that theory.

  85. mcinsand  •  Jun 28, 2013 @10:18 am

    Given sidewalk chalk's lack of any significant degree of persistence, I would only have contempt for any judicial or legislative body that would consider it to be vandalism. My rule of thumb is that, if a decent rain will take care of it, it isn't vandalism. Of course, that would leave yard rolling in a gray area, although people generally have to trespass to roll someone's yard. In Arizona, where there is little rain, rolling might be considered a form of light vandalism. Here in the southeast, though, raising a legal stink over rolling someone's yard should be considered frivious litigation.

    The sidewalks are public and sidewalk chalk won't even survive a weekday morning. California needs to get a grip.

  86. al  •  Jun 28, 2013 @11:16 am

    This is what I sent to the prosecutor:
    As is well illustrated in the following post: http://www.popehat.com/2013/06/26/an-exercise-of-prosecutorial-discretion/#more-18920
    A massive corporation such as Bank Of America has managed to avoid any penalties of consequence for wholesale violations of the law and peoples basic rights. Resulting in the financial ruin of millions and not a few homeless people to boot.

    However with the clear need to prioritize resources due to the fact that not every violation can be prosecuted, your office has chosen to expend that energy on prosecuting a man who scribbled with water soluble chalk on a sidewalk, his displeasure with the banks despicable practices. I urge you to reconsider whether your actions fit with a more just and equitable world or one in which such megaliths continue to bask in the knowledge that public resources are theirs to command and the little guy will always get screwed. Thank you for your time.

  87. WDS  •  Jun 28, 2013 @11:50 am

    @mcinsand,

    You sent me to Google. The only way I had ever heard Yard Rolling referenced was to put an textured pattern in the grass similar to what may professional sports teams do to their stadiums.

    What is the difference between yard rolling and TPing a yard?

  88. mcinsand  •  Jun 28, 2013 @12:13 pm

    @WDS. Sorry. Around here, 'rolling a yard' does mean to toilet paper a yard.

    On a not quite related tangent, this reminds me of when my oldest son was getting into music, and he had just read the story of how ZZ Top came up with the band name. He came to me and asked what made paper for rolling yards different from standard toilet paper. The band got their name for a brand of rolling papers, which led to his confusion and me having to have a talk about rolling papers with my son.

  89. Manatee  •  Jun 28, 2013 @12:16 pm

    @WDS

    My apologies if I misread your position. I made an inference based on this question you asked
    "If the statement is not defamation, and is protected, then why should writing it on the sidewalk in chalk be anymore vandalism than drawing a flower on the sidewalk in chalk?"
    that you believe that non-defamatory/protected statements should not be judged as any different from drawings of flowers when considering whether they are vandalism, and that if the statements were defamatory, then it would be considered differently than the innocuous flower drawings. Looking back over your older comment, I see I was wrong to jump the gun and assume the inverse.

  90. NM  •  Jun 28, 2013 @2:01 pm
  91. LauraW  •  Jun 28, 2013 @4:05 pm

    Is there any way of finding out whether BofA donated to the DA's election campaign? Or is that just a given?

  92. AlphaCentauri  •  Jun 28, 2013 @5:09 pm

    Looks like Jan Goldsmith ran unopposed, so he wasn't personally dependent on donations from anyone. But he still raised a lot of money and distributed it to other candidates. He apparently has his own SuperPAC as well:
    http://www.sandiegoreader.com/weblogs/news-ticker/2013/jan/29/city-attorney-jan-goldsmith-spends-campaign-donati/
    http://us-campaign-committees.findthedata.org/l/18594/City-Attorney-Jan-Goldsmith-2012-Committee

  93. riesling  •  Jun 29, 2013 @6:46 pm

    "Surely we can count on the criminal justice system to address such allegations of fraud, yes? Our investigators and prosecutors will focus on what is important — what is meaningful — and invest scarce government resources accordingly."

    This is the BEFORE statement made by people who don't read the awesome investigative journalism being done by Matt Taibbi over at Rolling Stone. Great Taibbi story in this month's Rolling Stone explains how both Standard & Poor's and Moody's (the financial product ratings agencies) "have for many years been shameless tools for the banks, willing to give just about anything a high rating in exchange for cash."

    http://www.rollingstone.com/taibbi

  94. Dyspeptic Curmudgeon  •  Jul 1, 2013 @12:53 pm

    Can someone clarify whether it is or is not actually 'illegal' to argue jury nullification in California?
    Given common law history (R. v. William Penn et al) and US history (the Sedition Act fiascos) I would think that any action by the Court to restrict discussion of jury nullification would be an impingement on the right of 'full answer and defence'. (OK defense for you Yankees who do not know how to spell).

  95. Steven H.  •  Jul 1, 2013 @4:37 pm

    I see the defendant was found Not Guilty on all counts this AM. Though why it took a jury more than four hours to decide that, I can't imagine…

  96. Bob Brown  •  Jul 1, 2013 @5:38 pm

    And, after Olson was found not guilty on all 13 counts, the DA complained that the cost of the trial was Olson's fault because Olson didn't accept a plea bargain. Um, a plea bargain that involved surrendering his driver's license for at first three, then two years!

  97. Bob Brown  •  Jul 1, 2013 @5:42 pm

    A couple of days ago the San Diego Reader reported that a pro-life organization held three chalk-ins outside Planned Parenthood locations in SD during 2011. No arrests. According to the Reader, the organizer of the chalk-ins told followers that he had checked with the San Diego police and that chalking sidewalks was not considered vandalism.

    I don't know who was DA in 2011.

  98. Bob Brown  •  Jul 1, 2013 @5:43 pm

    @Steven H.: I've been on a jury like that. It's because there was one asshat on the jury. (I do not live in San Diego.)

  99. Dan Weber  •  Jul 1, 2013 @5:57 pm

    after Olson was found not guilty on all 13 counts, the DA complained that the cost of the trial was Olson's fault because Olson didn't accept a plea bargain.

    I haven't been on the DA-hate train as much as other people in this thread have, but that's straight up bullshit.

  100. AlphaCentauri  •  Jul 1, 2013 @7:21 pm

    It's worse than bullshit; if he can't comprehend the concept of presumption of innocence, he should resign from office. Even the least educated juror is required to understand that principle to participate in a trial.

  101. AlphaCentauri  •  Jul 1, 2013 @7:23 pm

    @Bob Brown, is that on video somewhere?

  102. Bob Brown  •  Jul 3, 2013 @6:40 am

    @AlphaCenturi:
    Not sure which "that," and I don't do video, but I can provide links to the two newspaper stories. The business about Planned Parenthood is here:
    http://www.sandiegoreader.com/weblogs/news-ticker/2013/jun/30/is-it-the-mess-or-the-message-city-attorney-has-be/

    The story about the prosecutor blaming Olson for the cost of the trial, and the ridiculous plea bargain offers is here: http://www.sandiegoreader.com/weblogs/news-ticker/2013/jul/01/just-how-good-were-those-plea-offers-in-the-case-o/

  103. AlphaCentauri  •  Jul 3, 2013 @3:07 pm

    Thanks. It was a written release described as "an official statement from the City Attorney's office." Why say something that stupid at all if you want to weasel out of taking responsibility for saying it?

  104. Michael Harris  •  Jul 4, 2013 @2:13 pm

    Prosecute the little guy. But Clapper intentionally lied. Nothing will happen. Holder misled Congress maybe intentionally. Nothing will happen. Mueller claimed not to know who was investigating the IRS. Probably no one an due probably knew it. Nothing will happen.