Jeff Olson, 40, is facing a potential 13-year jail sentence for perhaps the world’s most costly sidewalk art. A former aide to the U.S. Senator from Washington, Olson used water-soluble statements like “Stop big banks,” and “Stop Bank Blight.com” outside Bank of America branches last year to protest the company’s practices. He eventually gave up his protest but prosecutors later brought 13 charges against him. Now a judge has reportedly banned his attorney from “mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial.” It appears someone associated with Bank of American could finally go to jail, but it will not by the bank officials in the financial scandal. It is the guy writing slogans in chalk in the sidewalk.
I have long been critical of the degree to which American judges are now barring parties from making defenses and arguments before juries. These rulings often have an outcome determinative impact on trials. In this case, free speech was the motivation of Olson, but he will reportedly have to defend himself as just a guy who walked up and started drawing in front of this bank.
Olson and his partner had been campaigning to get people to take their money out of the bank. This campaign led to a confrontation with Darell Freeman, vice president of Bank of America’s Global Corporate Security, who reportedly demanded action from local prosecutors. Olson stopped when contacted by the San Diego Gang Unit in 2012.
Yet, the bank insisted the chalk caused $6,000 to clean up, a rather suspicious claim. These were slogans written on the sidewalk. Prosecutors hit him with 13 counts of misdemeanor vandalism charges and $13,000 in restitution to the City and to Bank of America.
Freeman reportedly continued to hound police to bring charges and reports state that 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.”
Then Superior Court Judge Howard M. Shore entered the case. Shore granted Deputy City Attorney Paige Hazard and law student and city attorney employee William Tanoury. Also accompanying Hazard were two other representatives from the City Attorney’s side.
For Olson, and any free-speech advocates and political activists, the day couldn’t have gone much worse.
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. Shore ruled that “The State’s Vandalism Statute does not mention First Amendment rights.” Of course, he could simply instructed the jury that it is not a defense but clearly worries about jury nullification.
While the law does not mention the first amendment, should that mean that Olson is barred from testifying on motivation?
There is also the question of the constitutionality of a statute that bars political statements on a sidewalk written in chalk. The greatest question for me however is the overcharging by the prosecutors. I am also surprised that Bank of America (which avoided charges of its own officials in financial scandals) did not reign in its security contractor and state that they do not ask for charges in the case.
Olson will clearly not receive anything near 13 years and may not serve any time in jail. However, this seems like a case of overkill by the prosecution. What do you think?