Moral Monday Protest Trials Continue

The third trial of Moral Monday protesters started last Friday, October 25. This trial was different from the first two trials because twelve protesters were tried at once. Unfortunately, the trial did not reach a conclusion and the trial was continued until December 3. Trying twelve defendants at once is an interesting tactic to be used by the Wake County District Attorney’s Office but it may be the only reasonable option they have. There are currently over 800 protesters awaiting trial and the judge who is assigned to the case holds court less than five days a month. Trying one or two protesters at a time was impractical given how long the trials would have taken given that there is only one Assistant District Attorney assigned to try the cases. Here is a link to a story about the trial: http://www.wnct.com/story/23791198/rev-barber-on-trial-friday-for-moral-monday-arrest

I went and sat in on the trial for the last hour of it. There were a number of interesting revelations when the defense attorneys were cross examining General Assembly Police Chief Jeff Weaver. He admitted that prior to the arrest of the defendants in question, he had already called Raleigh Police Officers to assist because there were likely to a large number of arrests. Perhaps most interestingly, it was revealed that the only video footage that was available was of the protesters entering and existing the general assembly. There are cameras in the interior of the building and according to Chief Weaver, that video had been erased due to their policies about video preservation. Their policy is that the video is erased after thirty days. There may have been an explanation as to why the policies are different but I did not catch that.

The Wake County District Attorney’s Office has some tough choices to make in the months ahead. The incredibly slow process of trying the defendants and the news coverage surrounding the prosecutions certainly does not help the DA’s Office in anyway. With the revelation that police officers we already planning for arrests, this opens up a number of defenses that may be asserted by defense attorneys at future trials. It will be interesting to see if these strategies are successful. Another problem facing the DA’s office is that there is a definite possibility of civil rights lawsuit against the General Assembly Police and Raleigh Police Department as a result of these arrests. There seems to be  a question as to whether or not the arrests violated the protesters’ rights to freedom of speech, which could constitute the basis for a successful 1983 claim either in state or federal court.

Also, the revelation that the video had been deleted after thirty days per their policy seems somewhat dubious. All of the video should have been preserved given the highly charged nature of the case and likelihood of there being a trial. Going one step further, if it can be shown in the pending criminal cases or at a civil trial that the video was intentionally erased because what it showed was favorable to the Moral Monday protesters, then any civil case would be even more favorable. At a bare minimum, the intentional spoliation of evidence constitutes grounds for a negative jury instruction. It also can constitute the basis for a civil obstruction of justice claim which has been recognized as a cause of action in North Carolina. Here is a link to the opinion: http://www.aoc.state.nc.us/www/public/coa/opinions/2007/061079-1.htm . There would be issues bringing an obstruction claim against the police agencies due to sovereign immunity but the officers could be sued in their individual capacities if there was intentional spoliation of evidence.  It will be interesting to see what further information is revealed about the video. Come back here for future updates regarding the Moral Monday prosecutions.