Thursday, Jul. 24, 2008

Homeless win battle, but the war rages on

Last week, five attorneys argued about four men for three days in Stanislaus County Superior Court. People v. Homeless Guys, we'll call it.

Seven men were caught sleeping in a brushya area along Dry Creek in a La Loma neighborhood park July 20, 2007, at 4:40 a.m. The park is closed between 10 p.m. and 8 a.m. The men were cited and charged with illegal lodging, a misdemeanor under Section 647(e) of the California Penal Code.

One man cut a plea deal and paid a $120 fine. Two failed to show up for court appearances. The rest -- Chuck Yates, Kevin Washburn, Leroy Cole and Ken Hansen -- chose to fight the charges.

It would be wonderful to report that the outcome of this case would somehow help define how Modesto ultimately addresses its homeless problem. It won't.

The men were acquitted by the nine-woman, three-man jury that deliberated for only an hour. Whether the acquittals represent a victory for the homeless depends upon who's doing the talking.

"We knew we were going to win," said defendant Leroy Cole, who feels confident he now can sleep in a public park without the threat of an early morning wakeup call from the police. "We don't have to worry about that (being arrested) anymore."

Not so fast, law enforcement officials said.

"It comes down to the rights of the individual versus the rights of the community," Modesto police Sgt. Craig Gundlach said. "I don't think (police are) going to target the homeless, but we do need to enforce the law. It's not going to change the way we do business. We're still going to go after people who violate the law."

And whenever it's enforced, the district attorney's office will consider prosecuting, Assistant District Attorney Carol Shipley said.

"It doesn't change our position," she said of the acquittal. "We'll look at it on a case-by-case basis. It means they still run the chance of being prosecuted if they violate the law."

In this case, the district attorney chose to prosecute the charges as misdemeanors, no doubt expecting the defendants to plead, pay a fine and the case would go away. Instead, the defendants provided the ultimatum by demanding a full trial if the charges were not dropped.

Hence, the trial. Defense attorney Martin Baker, who represented Hansen, addressed the jury in his opening remarks by unrolling a sleeping bag on the courtroom floor.

"I want to show you what these guys were doing," he told the jurors. "Take a good look, and think about whether these four men were guilty of a crime."

He then crawled into it and pretended to snooze for about one minute.

The defense attorneys argued that the police officers working the park that morning could have told them to move on or cited them with an infraction (like a $25 parking ticket) instead of issuing citations.

Prosector Mabel Lew argued that the men simply broke state law and Modesto Municipal Codes involving park rules.

But as the sides prepared for closing arguments, the jury instructions became a significant issue.

Section 647, which deals with disorderly conduct, includes in part E: "who lodges in any building, structure, vehicle or place, whether public or private, without the permission of the owner or person entitled to the possession or in control of it."

Change the first "or" to "and," as was done to the jury instructions, and it changes the law. That's what happened in court, and it confused some of the jurors, Lew said.

"I talked to eight jurors (afterward) who said it was the language, and without the language they would have convicted," Lew said.