Motion for New Trial Filed in St. Paul's Only RNC Conviction to Date

St. Paul City Attorney John Choi has a 1 for 10 (or 1 for 34, depending on how you look at it) record in RNC misdemeanor and gross misdemeanor convictions; only Sean McCoy, a Montana street medic, was convicted on a single charge out of 10 defendants and 34 charges brought to trial thus far.  Judge Edward Wilson sentenced McCoy last month to a $50 fine plus an additional $31 in costs for the conviction on one count of Public Assembly Without a Permit.  Yesterday, McCoy and National Lawyers Guild attorney Bruce Nestor filed a motion asking the court to order a new trial.

March 23: City of St. Paul Wastes Scarce Resources on $50 Fine (Press Release from Community RNC Arrestee Support Structure)

The motion argues for a new trial on two major grounds: first, that the jury instructions regarding the charge were flawed, and second, that the St. Paul Ordinance (Chapter 366A) barring unpermitted assemblies of more than 25 is unconstitutional.

According to the motion, Wilson's instructions to the 6-member jury failed to include an essential element of the offense: that McCoy engaged in the assembly knowing a permit had not been granted.  Additionally, it says, the instructions

given by the Court combined the offenses of “participating” or “conducting” a “parade” or “public assembly,” such that Defendant’s right to a unanimous verdict was violated. Under the instructions given, the jury would not necessarily have to agree unanimously on a single act of “participation” or “conducting,” or whether such act occurred as part of a “parade” or “assembly.”

The motion also argues for a new trial on the grounds that "the verdict is contrary to the evidence, in that there is no substantial evidence that Defendant obstructed traffic or disturbed the public peace."

The 366A ordinance was passed by the St. Paul City Council in 2005 over public outcry, and requires a minimum $10 fee for groups of more than 25 to gather.  It has been rarely enforced, though one notable instance was the arrests of demonstrators at the Mexican Consulate during the Oaxaca uprising of 2006.  The ordinance defines public assembly as "any meeting, demonstration, picket line, rally or gathering of more than twenty-five (25) persons for a common purpose as a result of prior planning in or upon any street, sidewalk or other public grounds in a place open to the general public."  There is no political element.

Regarding the unconstitutionality of 366A, a memorandum accompanying the motion argues:

In bringing this constitutional challenge after conviction, Mr. McCoy reminds the Court that he was acquitted of charges involving disturbance of the public peace or obstruction of traffic. As such, he stands convicted of merely being present in downtown St. Paul, with a group of other people, and without having a permit first issued by the City of St. Paul. As any person knows who attends a Minnesota Wild game at the X-Cel Energy Center, or other similar sporting event, such events also bring hundreds of people into downtown St. Paul, many of whom cross streets outside of crosswalks, or for whom the City of St. Paul deploys reserve police officers to stop traffic and allow for the flow of pedestrians. Mr. McCoy stands convicted for being present with a group of people who are not favored by the elected officials of the City of St. Paul, not because his conduct is any different from the average Wild fan. As such, Chapter 366A is both unconstitutional because it engages in viewpoint discrimination and because it is carried out and enforced in a manner which reflects the viewpoint discrimination built into the structure and enforcement of the ordinance itself.

The memo goes on to say:

Under Chapter 366A, a group of 26 people, even if they obey all traffic  lights, walk single file down the sidewalk, and allow for the normal flow of pedestrian traffic and vehicles, will still require a permit so long as they are assembled together for a common purpose as a result of prior planning. For instance, Chapter 366A on its face, would apply to a group of 26 delegates to the Republican National Convention who go out for a drink together, a group of 26 Macalester students who walk to a restaurant together to celebrate the end of the semester, or a group of 26 family members who get together to celebrate a marriage anniversary and walk together on the streets and sidewalks of the City of St. Paul.

The next RNC misdemeanor jury trial is scheduled for Monday, April 13 on charges stemming from the September 1 Shepard Road mass arrest.   UPDATE: All charges in this other case were dropped on April 7 were dropped for, in the words of a letter from the prosecutor, "insufficient evidence to prove charges"!