

Man faces 13 years in jail for scribbling anti-bank messages in chalk - coldtea
http://topinfopost.com/2013/06/26/man-faces-13-years-in-jail-for-scribbling-anti-bank-messages-in-chalk

======
coldtea
Please don't use the "prosecutors go for the maximum penalty they can" defence
for trivialising this shit.

Even if that was the case, penalties should be suggested proportionally to the
crime -- not inflated to scare people.

For one, an inflated penalty makes the person more likely to want to avoid
trial and take a plea bargain EVEN if he is innocent. "Should I risk 13 years
with a trial or go for 2 years?".

Second, the role of the prosecutor is not to scare people and score points,
it's to try to punish a crime appropriately.

Third, the inflated penalty also changes the perception of the judge and the
jury, and makes them more likely to take the case as more serious than it is.
E.g something that should actually be punished with something like 6 month
probation, when inflated to a "13 years in jail" scare, can appear much more
serious (and the offender much more dangerous) to the jury.

Who is more likely to be punished with, say, 6 years in jail? Someone for
which the prosecutor suggested a 13 year penalty, or someone for which the
prosecutor suggested 2 years?

~~~
olefoo
Cases like this are corrosive to the legitimacy of the judicial system.

And it seems all of our institutions are suffering from a crisis of
legitimacy.

Our justices care not for justice; our law makers are so bought and paid for
they should be logo'd up like race cars, and the executive branch... has
become everything it said it would fight against during the campaign.

When what's left of the middle class begins to defect from the norms that keep
society intact; what then?

Do we flee to the countryside and try to take up farming while being hunted by
the landowners drones?

Die in cities torn by strife and insurrection?

Live in fear of debt collectors who can turn any life upside down with an
impossible to fight "computer error" not in your favor?

~~~
anigbrowl
_Cases like this are corrosive to the legitimacy of the judicial system._

More like news stories like this are corrosive to the credibility of the
media.

~~~
x0054
You have alleged that there are several factual inconsistencies in this story,
could you name them for those of us who might be in the dark, or are you just
a troll?

~~~
coldtea
Worse than a troll, he is a pedant, who, since the books agree with it, and
it's "by the books", can't see no deeper fault here...

~~~
tptacek
No, the fact that he's not engaging with the argument that you want to have
indicates _neither_ (a) that his argument is any less valid _nor_ (b) that he
finds no fault in what's happened. The point he's making is _orthogonal_ to
yours, is _absolutely_ germane to the story, and your pretense of not knowing
that is far closer to trolling than anything he's ever said.

The anti-intellectualism of HN on "Your Rights Online" stories is galling. On
threads like these, people often seem to want to be told things that confirm
their biases, and get _angry_ when new facts are introduced. You just called
'anigbrowl (of all people) "worse than a troll". You should be embarrassed.
But you're not, because the most vocal people on the thread agree with you. In
other words, you're a bully. Go to hell.

~~~
coldtea
> _No, the fact that he 's not engaging with the argument that you want to
> have indicates neither (a) that his argument is any less valid nor (b) that
> he finds no fault in what's happened. The point he's making is orthogonal to
> yours, is absolutely germane to the story, and your pretense of not knowing
> that is far closer to trolling than anything he's ever said._

I'm nearly 40. I don't "troll". I tell it like I see it, whether you agree
with it or not. Believe it or not, there ARE people with legitimate totally
different opinions than yours or his. To the point that they see the
"legalism" expressed in his comments as not only absurd but also insulting to
the very notion of justice.

I also find the "trolling" accusations immature and idiotic -- they belong to
discussions between teenagers.

I never assume anybody is trolling, just because I don't like their viewpoints
-- which is something some people on the internet do a lot. Perhaps the net is
the only place where they learned to discuss. Because in actual face to face
discussions nobody calls the other a "troll".

> _The anti-intellectualism of HN on "Your Rights Online" stories is galling._

What "anti-intellectualism"? I, for one, am all for Kant, Hegel, Plato and
their ilk. Up to good ole Teddy Adorno, Christopher Lasch and George Steiner.

Disagreeing with letter-of-the-law interpretations is not anti-
intellectualism. If anything, it's the opposite. It goes contrary to the
mechanistic, by-the-books justification of the status quo.

> _You just called 'anigbrowl (of all people) "worse than a troll". You should
> be embarrassed. But you're not, because the most vocal people on the thread
> agree with you. In other words, you're a bully. Go to hell._

You tell me that "I should be embarrassed" and I should "go to hell" and It's
me who is the "bully"? Who the fuck do you think you are?

I called anigbrowl "worse than a troll" in the context of the conversation, in
that he was a "pedant". One (troll) is a BS accusation, the other (pedant) is
something that seriously screws discussions by focusing on inconsequential
details.

You also conveniently sidestepped anigbrowl's constant condescending and
mocking comments to me and other commenters in this thread.

Perhaps you identify with such abuse, and his stance of the "wise man, who has
to educate the ignorant masses". It's, after all, what you do all the time
too.

Before all the NSA leaks you told people, time and again, how it's totally
implausible and conspiracy theory to believe they do those kind of things. And
mocked them with a "wiser than thou" stance.

You consistently come out as a cold-war patriotic bigot who accepts the
official government line hook-line and sinker.

Just a week or so ago, in the thread about Hastings, you mocked people
considered a possible foul play on his death, dismissing them as conspiracy
freaks, and adding condescendingly that "I only encouraged them".

Then, a few days later, the laters of Hastings with relation to FBI chasing
him hit the press.

[http://www.washingtontimes.com/news/2013/jun/24/journalist-m...](http://www.washingtontimes.com/news/2013/jun/24/journalist-
michael-hastings-last-email-fbis-invest/)

And we also got this tibbit:

> _Former U.S. National Coordinator for Security, Infrastructure Protection,
> and Counter-terrorism Richard Clarke told The Huffington Post that what is
> known about the single-vehicle crash is "consistent with a car cyber
> attack." Clarke said, "There is reason to believe that intelligence agencies
> for major powers" \-- including the United States -- know how to remotely
> seize control of a car. "What has been revealed as a result of some research
> at universities is that it's relatively easy to hack your way into the
> control system of a car, and to do such things as cause acceleration when
> the driver doesn't want acceleration, to throw on the brakes when the driver
> doesn't want the brakes on, to launch an air bag," Clarke told The
> Huffington Post. "You can do some really highly destructive things now,
> through hacking a car, and it's not that hard." "So if there were a cyber
> attack on the car -- and I'm not saying there was," Clarke added, "I think
> whoever did it would probably get away with it."_

Hindsight's a bitch, right?

~~~
anigbrowl
_I called anigbrowl "worse than a troll" in the context of the conversation,
in that he was a "pedant". One (troll) is a BS accusation, the other (pedant)
is something that seriously screws discussions by focusing on inconsequential
details._

Except I don't think they're inconsequential at all, but rather key to
understanding why this story is a crock. You started out in this thread with a
pre-emptive finger-wagging rant; my suggestion is that you shouldn't dish out
criticism if you can't take it.

As for your example of Hastings, the possibility of a conspiracy isn't
evidence of a conspiracy. You don't appear to understand the difference.

~~~
coldtea
> _Except I don 't think they're inconsequential at all, but rather key to
> understanding why this story is a crock. You started out in this thread with
> a pre-emptive finger-wagging rant; my suggestion is that you shouldn't dish
> out criticism if you can't take it._

Excuse me, I'm the one that can't take criticism? You came with guns blazing
against everyone with an opposite opinion (ignorants, etc), focusing on the
technicalities but never addressing the larger picture. You even invoked
reasons about why the piece should never even be posted (the news outlet
violates HN quality criteria, and such), and you even wrote that I should not
even be allowed to make an initial comment (in your words, a "pre-emptive
rant"). Perhaps you think your criticism is the only valid one, and everything
else is the ramblings of idiots.

> _As for your example of Hastings, the possibility of a conspiracy isn 't
> evidence of a conspiracy. You don't appear to understand the difference._

I never said it was "evidence". I just said it was an indication -- instead of
openly mocking everyone even considering it.

How about the constraint not to put things in my mouth?

I'm also of the opinion that in real life (as opposed to government issued
statements), the context, motive and feasibility (not to mention past track
record), are good enough to seriously consider the possibility. People
expecting "evidence" of such things are naive in the way governments work -- a
study in anti-activist and anti-dissident history will give them tons of
examples of shameless power abuse by such agencies, from dealing drugs to
support Contras, to openly killing dissidents.

------
evo_9
Judge Howard Shore told Mr. Olson’s attorney to refrain from "mentioning the
First Amendment, free speech, free expression, public forum, expressive
conduct, or political speech during the trial".

How can you even say that in court and retain your position as a judge?

~~~
travisp
I don't know enough details to actually judge the judge one way or the other,
but in theory it would be entirely appropriate for a judge to say this if the
first amendment was not relevant to the defendant's guilt or innocence and
bringing up the First Amendment would only confuse the jury.

I am not a lawyer, but if the judge was wrong that the First Amendment is not
relevant to the crime and the law Olson is being charged under, then the
defendant should be able to make that case in appeal (i.e. that the defendant
was guilty of the crime, but that it is unconstitutional for this to be a
crime).

It is someone of a legal philosophy debate: is the role of a jury simply to
return a verdict of guilty or not guilty, or does the jury have the right to
decide on the law itself?

In modern legal practice in the US, the law itself is not argued before the
jury. What the judge seems to be doing here seems to be standard legal
practice.

~~~
trailcable
A judge can overrule your right to free speech? By limiting that reference to
free speech? Hmmm.... For amendments to constitution I think the closest
workaround they get is...

Circumventing the 5th amendment by granting immunity then imposing contempt of
court.

Sounds like great grounds for appeal.

~~~
mpyne
The judge can rule that freedom of speech is not at issue. There are many
well-settled instances in American case law where one's right to freedom of
speech may be constrained (usually because it conflicts with the rights of
others).

E.g. in this case the accusation is that Olson vandalized BoA for _6 months_ ,
causing the bank to have to continually pay to have the chalk cleaned off and
risking further property damage.

Olson has a free speech right to protest, but that does not mean that he can
unilaterally choose means that infringe on the rights of others.

You are right that foreclosing the issue may make great grounds for an appeal
though, it's possible an appeal court could rule that the First Amendment _is_
relevant and cause the case to be re-tried.

~~~
trailcable
The end was the only point I was making. The person may be guilty of
infractions per law.

To not even be able to reference his right to free speech, if it's upheld I'm
quite worried.

~~~
travisp
His right to free speech does not change whether or not he committed the crime
according to the law (unless the law specifically refers to the right to free
speech), so it is a separate issue from what is argued at the initial trial.

If his right to free speech is indeed being violated by applying the law, then
modern legal practice does not consider this to be an issue for the jury
itself to consider (it is considered in a separate manner, by the judge and by
appeal).

------
RKoutnik
Previous discussion:
[https://news.ycombinator.com/item?id=5948804](https://news.ycombinator.com/item?id=5948804)

Summary: There's really no chance the dude's going to get all 13 years strung
out. Hyperbolic writing at best. It's not a free speech issue because he wrote
it on private property.

~~~
adventured
Graffiti is a trivial crime, and it's an outrage there would even be the
suggestion of a 13 year sentence. The best way to deal with graffiti is to
gradually increase the financial cost of doing it each time caught. If it goes
beyond financial costs, for example if the person is unable to pay as their
fees climb with multiple offenses, then the next punishment should be
probation, and then when all else is exhausted jail time. Point being, the
last resort for this should be jail time.

It's a classic example of America's aggressive police state in action. One
year for this crime would also be outrageous.

~~~
jsmeaton
Graffiti carries a maximum of a one year sentence. See the update from the
City Attorney:

1\. This is a graffiti case where the defendant is alleged to have engaged in
the conduct on 13 different occasions. The trial judge has already held that,
under California law, it is still graffiti even if the material can be removed
with water. Most graffiti can be removed. Also, the judge and a different pre-
trial judge held that the First Amendment is not a defense to
vandalism/graffiti.

2\. The defense is trying to make this case into a political statement, which
it is not. This is just one of some 20,000 criminal cases that are referred to
us annually by the police department. We have prosecutors who decide whether
to issue cases. They are professionals. The City Attorney was not involved in
deciding whether to issue this case as is typical practice in prosecution
offices for most cases. He hadn't heard of this case until it was in the
media.

3\. The defense is whipping up hysteria about the prospect of 13 years in
custody. This is not a 13 year custody case. It is a standard graffiti case
compounded by the fact that the defendant is alleged to have done it on 13
separate occasions. Because there were 13 different occasions when the
defendant allegedly engaged in the conduct, the law requires them to be set
out separately in the complaint. This increases the maximum sentence, but it
still is a graffiti case and nothing more. The courts routinely hear graffiti
cases and handle them appropriately using judicial discretion.

4\. It is not unusual for victims to contact police or prosecutors about a
case. Our prosecutors are trained to focus only on their ethical standards in
deciding whether to file a case.

5\. We prosecute vandalism and theft cases regardless of who the perpetrator
or victim might be. We don't decide, for example, based upon whether we like
or dislike banks. That would be wrong under the law and such a practice by law
enforcement would change our society in very damaging ways.

~~~
mjn
Most of that is true, but I'm somewhat skeptical of #5. A lot of people write
on sidewalks with chalk, and most are not charged with vandalism. I wrote on
sidewalks with chalk when I was a kid, and not only on the sidewalks in front
of my parents' house. Technically, I got away with a crime. It's not a _huge_
stretch to suspect that the reason for the prosecution in this case is the
contents of the chalked message, rather than the mere fact of chalking.

~~~
gridspy
Yes, but isn't the sidewalk public property?

Did you ever walk up someone's driveway and scribble on their house?

~~~
anigbrowl
Not in California it isn't. The property owner is responsible for the
sidewalk. Fall on a poorly maintained sidewalk, and it's the property owner
that you will sue for damages. This is one reason homeowner's insurance is
mandatory.

------
jamesmccann
The fact that the defendant used "washable chalk" does not make him innocent
of vandalism, as some are suggesting.

Chalk can stain the side of a building if repeatedly used in the same place.
Washing the building will reduce the chalk to a faint smudge, but restoring
the side of the building to its original state before the offending still
requires repainting/resurfacing in the same way cleaning spraypaint would.

In regards to limiting the use of the First Amendment - the right of the
defendant to express his views have not been violated. The First Amendment has
nothing to do with the vandalism charges he faces. He could have expressed his
views over a medium that wasn't illegal, allowing him to defend himself via
the First Amendment, but then he wouldn't have a need for defence, would he?

~~~
cgag
13 years wouldn't be reasonable if he wrote it in someone else's blood.

~~~
mpyne
As is repeatedly mentioned _every single time_ a legal case hits the HN
airwaves, the maximum sentence one might compose by sequentially stacking
maximum penalties for all charges is not the sentence that is anywhere close
to possibly being handed down for real.

From one of anigbrowl's comments on here: " The maximum penalty for vandalism
in California (which is what this case is about) is 3 years. It isn't possible
to get a 13 year sentence for vandalism in California. In fact, since the
defendant has no previous convictions for vandalism that I'm aware of I'm
pretty sure the maximum penalty that can be imposed under CA law (CA PC
640.5/6) is community service and a $1000 fine. "

[https://news.ycombinator.com/item?id=5956128](https://news.ycombinator.com/item?id=5956128)

~~~
PavlovsCat
Then what's the point of threatening something that draconian? Pure habit?

~~~
rdouble
If he ran 13 red lights he'd be assessed the penalty 13 times for that, too.
I'm not sure why the number of charges multiplied by the penalty would be
draconian. That's just arithmetic. Luckily, the legal system in the USA is
flexible and he will just get a small fine and community service.

~~~
infrec
I think you are missing the context of the question (mpyne's comment). If the
max that will logically be handed down is way below the summed offenses, why
is it being used? It seems like it's a threatening tactic and yes, draconian.

~~~
rdouble
But how else would you do it? You still have to let the guy know what the max
sentence could be, whether it seems threatening or not.

------
PavlovsCat
This is shameful..

I've been caught by cops twice with chalk. In Berlin I drew a silly heart
flying above clouds. at night while talking on the phone and paying zero
attention to anything else for like an hour, as somone taps me on the shoulder
and says "don't be scared, plainclothes police". I told them what it was and
that it was chalk, one tested it with his finger, and then when I took a photo
of it he even said "oops sorry" for having smeared it a little before I could
take that photo. Friendly doesn't even come close to describe it, it was
unreal. They said I should wash it off, because if it was still there the next
day, the owner might complain to them and then they would have to act. They
also asked why I did it, I truthfully answered "heartache", they wished me
good luck and we parted with ^_^ faces.

The second time was in South Germany, in a rather rich little town, where I
basically attempted to fill out with chalk a red heart outline someone else
had sprayed there (onto a the wall of a small bank, too). They were all "well
well well, look what we have here", and even took my chalk to "send it to the
state attorney's office for analysis". But 1-2 hours later they called me up
and asked the same thing the Berlin cops asked of me: just wash it off and it
never happened. I guess they realized that in this case it just wasn't worth
the paper work, or needlessly mean - but their first instinct was of the
stereotypical bored police who found someone they could have authority over.

I get that a heart is different than words (though it really depends on the
words, doesn't it). But still. It's chalk... CHALK! Is it a wonder we can't
have nice things, when people are afraid of chalk more than of locking someone
up? Seriously, wat? Even the silliest Javascript quirks make perfect sense in
comparison.

And to think, I actually tried to encourage others, for a while I was
convinced everybody should carry chalk with them and paint little things
everywhere. Oh well, _don 't try this in police states_ I guess. Oh, I know,
people like to say it's not their decision, it's the law, yadda-yadda, but
that's just not true:

 _Criminals do not die by the hands of the law. They die by the hands of other
men._ \--- George Bernard Shaw

The same goes for rather innocent people, and prison or fines instead of
death. Saying it's okay per definition because it's on the law books doesn't
make it okay, it makes you a you-know-what.

~~~
anigbrowl
Don't rely on this poorly-reported story for your facts, and definitely not
for your legal information.

~~~
PavlovsCat
Thanks for your concern, but I prefer to rely on paying attention to the world
I live in for my guesstimates. It's so much nicer than not seeing the woods
for all the trees.

Don't rely on drive-by one-liners that point out some random point at best to
be anything but transparent. If you have any additional facts, what are they?
If you don't, what is this?

I made experiences with chalk and cops that have actual criminals to catch,
and cops that have big fat property and malls to patrol. Anecdotal, yes,
random, maybe, but still mostly for those who get the point, or have
experiences of their own to contribute; anything more than just cheap shots
from cheap seats to stifle discussion you don't like to see others having.

What legal claims did I even make? What exactly is that supposed to be a
response to?

~~~
anigbrowl
Read my other posts to this thread, and to the other thread. I'm sick of
correcting the same basic factual errors over and over for people too lazy to
do it themselves.

------
eksith
Judge Howard H. Shore :

[http://www.sandiego.courts.ca.gov/portal/about/depts/sd15.ht...](http://www.sandiego.courts.ca.gov/portal/about/depts/sd15.html)

[http://www.sandiego.edu/law/academics/faculty/bio.php?ID=663](http://www.sandiego.edu/law/academics/faculty/bio.php?ID=663)

[http://www.martindale.com/Howard-H-
Shore/220226-lawyer.htm](http://www.martindale.com/Howard-H-
Shore/220226-lawyer.htm)

This previous case will tell you exactly where he stands on those "hippie
types" he despises.

[http://www.safeaccessnow.org/article.php?id=6128](http://www.safeaccessnow.org/article.php?id=6128)

This man is an affront to justice.

~~~
anigbrowl
No, it doesn't tell you anything like that. It won't tell you much about the
law either, considering that they don't even bother to cite the case in
question so people could read the documents for themselves. It's a press
release, not an objective report.

Now, I have got up in front of a city planning commission to advocate for
medical marijuana clinics (which were subsequently approved). I'm heartily in
favor of medical marijuana. But if you have an amount of marijuana growing on
your property that exceeds the amount you are allowed to grow for medical
purposes, then you can't rely on the medical defense as a matter of law.
That's why smart marijuana growers take the advice of their lawyers and
establish a growing cooperative which allows them to pool their legal growing
allocation in a shared facility.

There are rules about how much pot you can grow for medical purposes, just
like there are rules about how you can sell alcohol and tobacco. If you ignore
those rules then you're liable to get fined or even jailed. You can't break
the rules and then invoke those same rules as part of your defense - this is
criminal law 101.

Rather than him being an affront to justice, it's you who have no
understanding of how criminal law operates.

------
readme
What he did was wrong, but the punishment is not right. We know how the saying
goes.

The appropriate punishment would have been to force him to clean the chalk
off.

That's also the appropriate punishment for any vandalism. A written apology
and reparations for the vandalized property.

What I don't agree with is the idea that using chalk makes it "not vandalism"
\-- it still is vandalism. The punishment is absurd, though. Obviously BOA has
heavy influence over the authorities in this case.

------
mikegagnon
Is the United States becoming less free, or has the US always been like this
and I'm just noticing now?

------
smegel
So just to be clear...the constitution only applies when permitted by a given
piece legislation? Strange.

~~~
uxp
The 1st amendment has never applied to disagreements between two private
parties, but rather between one party and the Unites State government.

So, yes, the constitution applies only when permitted by it's own words.

------
vampirechicken
Tonio K said "you never tangle with the ruling class unless you;re prepared to
take it..."

------
aunty_helen
Falling Down anyone?

------
ako
Romani ite domum

------
joshuatree123
America: The Land of the free. :) :)

------
mtgx
So he's such a danger to society that he needs to be put in prison for 13
years? God forbids he might be involved in another protest against the banks
in the future!

------
drivebyacct2
Oh for shame! This was debunked on reddit before it was even submitted here.
:/

------
awesomifier
"Russia warns Obama: Monsanto" is another story on the site and a huge issue
that's be overshadowed by the NSA fiasco.

~~~
seandhi
You mean this?
[http://www.snopes.com/politics/conspiracy/monsanto.asp](http://www.snopes.com/politics/conspiracy/monsanto.asp)

