by Garret Ean
Sept 14 2011
Kate Ager was the fifth person arrested on June 4, 2011 at the Manchester Police Station, and on Monday, became the first to face trial. The fast-talking Gregory Muller played the role of the state. Mr. Muller spoke so softly and speedily that at times judge William Lyons had to lean in to hear him. Kate faced four charges; disorderly conduct (via disobeying a lawful order), resisting arrest, unsworn falsification, and filing a false report. Slated to start at 1:15pm, the case got underway at 1:22. About a dozen supporters turned out for the state’s demonstration, and a good portion of the trial was filmed (more on that later).
Kate’s arrest that day occurred while she was out of sight of all other activists. Dave Ridley filmed a portion of the arrest from nearly a block away, and Kate did have her own video running up until the point that she was grabbed by MPD sergeant John Patti. In Kate’s unreleased video, eight or nine officers began surrounding her as she stood alone on the corner of Merrimack and Chestnut Street. She is then initiated in dialogue by John Patti, who moments later has her under arrest for standing on a sidewalk chalking. The allegation was that she was interfering with the photographer who was at the time taking photos several meters away, further East on Merrimack Street. The photographer, MPD detective Michael Lavallee, was not called to the stand.
Before the trial began, Muller stated to the defense (which consisted of Kate and her standby counsel), that he would not be submitting any videos into evidence. The first witness called by the state was John Patti. Dressed in full uniform, including his sidearm, Patti identified that he has been in law enforcement over 16 years, and is currently assigned to the patrol division. He testified that at about 4:45 on June 4th, he became aware of the protest outside the station and noticed chalk on the sidewalk, exterior wall of the building, and the retaining wall around the entrance to the building. Muller asked if Patti made efforts to preserve the chalking, and he affirmed. On this point, it is worth noting that after the initial two arrests, and before any documenting of the chalk began, a man dressed in plain clothes with a baby stroller appeared on the scene and began using a bucket of water and a washcloth to wash away some of the chalking toward the East end of the building. This man’s existence, as well as the question of whether or not his actions constituted destroying evidence, were never brought out in trial. His actions will be more relevant to Ademo Freeman’s case, who awaits trial for chalking on pillars of the building that day, with a charge of ‘criminal mischief’.
Patti testified that as he and other officers stood by Michael Lavallee as he photographed chalk, that “Kathryn Ager approached me”. He reported that she was standing on chalk with chalk behind her (on the retaining wall). He asked her to move, explaining that the chalk constituted a crime scene and claims that he informed her that if she didn’t move that she would be arrested. On cross examination, Kate’s video would demonstrate the word “arrest” was not used until Patti had reached for her arm and said, “You’re under arrest.” He did say, “last chance” prior to claiming the order was lawful, and the timestamp on the video shows a duration of four seconds between Patti finishing his sentence and initiating the arrest. During that time, Kate had tried asking a question about the legality of the order, but was cut off due to her arrest. The remainder of the questions from Gregory Muller related to Kate’s behavior upon being placed in custody, which he defined as “combative, physically resisting and swearing at us”.
It was then Kate Ager’s opportunity to cross examine her arresting officer. She asked if John Patti had a clear recollection of the events of that day, to which he replied, “pretty much”. When asked if there were any calls or complaints regarding the protests outside the station, he responded, “Not that I’m aware of”.
“How many officers were called to assist out front?”
“Probably seven officers.”
“Were any violent or disruptive actions taking place?,” to which Muller objected, citing relevance. The objection was sustained, so the question was rephrased to, ‘why did you call seven officers to assist?’ Patti stated that it was actually another sergeant who requested the heavy backup.
The issue of whether Kate approached Patti and the other officers was addressed. Patti testified consistent with his affidavit that Kate approached him and the other officers. However, the affidavit and testimony and were not consistent with the video, which shows Kate standing in place for about a minute while she is slowly surrounded by the group of officers and before Patti initiates her in dialogue. Kate approached the witness stand with a laptop to show Patti and the judge the video. Patti identified himself in the footage, and as it played he tilted his head downward and placed his hand over his chin. Kate followed up the footage with, “So the statement you made and the report are inaccurate?” Patti affirmed that based on the video evidence he had just seen, his testimony regarding who approached who was incorrect.
Stating that the total time of their interaction was maybe 10 or 15 seconds, he was asked if he initially asked or ordered Kate to move. He didn’t recall. Kate asked if she asked a question in response to his request, and if she sounded confused at the time. Referring to her voice in the video, he said, “That statement sounded confused.”
“Was I clearly informed that I would be arrested?”
“I believe so.”
The next few questions sought to determine the time between the “lawful order” statement being given and the arrest. Then, “How far away was Detective Lavallee standing when you asked me to move?…Was he trying to photograph the area where I was standing?”
“I don’t know what he was doing.”
Then came questions to the charge of resisting, and what exactly Kate had done to constitute resisting arrest.
“Did I attempt to run away?”
“Did I attempt to hurt you or your colleagues?”
The prosecutor objected to the question, “Is it reasonable to assume that a person can become confused when spoken to by multiple people at the same time?” The objection was overruled, and the response was that it likely, “depends on the person.”
A video shot from down the street by Dave Ridley was entered into evidence as defense exhibit B. Again, Patti identified himself in the video.
“Do I appear to be struggling?”
“Not right there.”
When asked to show where Kate was struggling in the video, he replied, “You kind of let your legs collapse, passive resistance.” There exists an approximately five second break between when Kate’s video cut out and Ridley’s video caught her being taken to the ground. Patti said, “The resistance is where we go to grab your arm and you tried to pull away.”
Kate then addressed the fact that her primary piece of video evidence, the video of her arrest, was the only video not included as evidence in her discovery request. Despite this, dozens of private photographs and videos from her phone were included, not just in her own discovery, but in all of the Chalking 8’s discovery packages, and also to another individual who was not arrested, but ticketed for chalking the retaining wall. Kate was able to take the video off of her iPod after it was returned to her, but why was it that the most relevant piece of evidence was not included as evidence, when unrelated private images were not just included as evidence in her case, but distributed to all persons confronted by Manchester Police that day? She asked of Patti, “Did you specifically ask that the video not be included?” When he responded in the negative, she inquired, “Who was responsible for that?” Patti identified detective Timothy Craig as the officer in charge of extracting files of evidentiary value. Whether through ineptitude or deliberate exposition, the release of Kate’s private photographs and videos to so many was not appropriate. Timothy Craig was not called to the stand.
When asked about the amount of difficulty Kate’s alleged resistance caused, Patti explained that it took about one second to secure her wrist.
At 2:00pm, Patti was relieved. The next witness called was Manchester police sergeant Joseph Mucci. Unlike his co-sergeant, Mucci donned a business suit with a badge on a lanyard around his neck. He stated that he had been an officer for fifteen years, and that he currently works patrol on the 4:00pm to midnight shift. Unlike Patti, Mucci referred to the chalkings almost exclusively as graffiti. He stated that he was outside to assist in “photographing graffiti that her associates had put on the sidewalk, exterior wall, and retaining wall.” Standing alongside Patti during his dialogue with Kate, he assisted in the arrest, and in describing it, emphasized the word ‘placed’ as he said, “We placed her on the ground and she was handcuffed”. His direct examination was short.
Kate began by asking Mr. Mucci what made those present at the protest “her associates”.
“Why do you assume that they were my associates?”
“You were with them.”
“Was I standing near anyone?”
“No, you were by yourself.”
“Why do you assume I was with them?”
“You were there, they were there.”
Confused by Mucci’s assertions, during Kate’s next attempt to figure out what associated her with all of the other protesters, Mucci said that anyone present likely had, “belief in your organization.” This caused some in the audience to chuckle, which motivated the judge to iterate that everyone had a right to be present, but that they could not make any emotional exclamations or they would be asked to leave. Directly in front of the person addressed by the judge due to the laughter was a camera. It had been rolling the whole time, and at this time an issue was not made of it either.
Kate asked which organization it was claimed that she was a part of, to which he replied, “I don’t have a name…the organization driving around the city with a bus.” When asked how many officers were in the area, Mucci conservatively answered, “At least three, maybe more.”
“Was I asked to move or ordered to move?”
“You were told to move.”
“When I was first asked to move, did I ask a question?”
“I don’t remember.”
“Did I appear confused?”
“I can’t speak to your state of mind.”
“Did I state that I would not move?”
“That’s not an issue here.”
“You said I refused to move, and I didn’t move.”
“You were told to move, and you didn’t move.”
Kate then queued up the same video she had shown Mr. Patti. Mucci identified himself in the video, and affirmed, as Patti had, that the time between the order to move and the arrest was four seconds. When asked where Mr. Lavallee was at the time she was arrested, he responded, “I couldn’t tell you.”
In inquiring where in the video she appears to be struggling, Mucci responded that the video is blocked by the number of officers in the frame.
The state requested redirect and asked Mucci what the other officers were saying to Kate. The defense objected on the grounds of hearsay, but the judge overruled the objection citing State v. Crossman. Mucci replied they were saying things such as “stop resisting”, and Mucci faced no further questions.
The state then called Clifford Ellston to the stand, a Manchester police officer who participated in Kate’s booking process. In full uniform, he identified himself as having been employed by MPD for three years, and currently working patrol on the midnight shift. He was also outside when Kate was arrested, and testified that she “flailed her arms” and made it difficult to apply handcuffs. Muller asked how long the cuffing took, and he responded, “Maybe five seconds.” After being walked into the station, Ellston claimed that Kate initially refused to provide a name, then “inaccurately” provided her name only as Kate, before eventually providing her full name as Kathryn Ager. According to Ellston, Kate gave her date of birth to be one year earlier than it actually was. The basis of an “unsworn falsification” charge, one of the four charges Kate was facing, was that the person giving information to a government agent is attempting to deceive them. Through her questions, Kate pointed out that she relayed all of the other biographical information correctly, including height, weight, eye color, hair color, and address, and that if she were trying to pass herself off as someone else, she was clearly not making much of an effort at it.
Once the state rested, the defense moved to dismiss the unsworn falsification charge. The prosecution did not object, and the judge obliged. Before closing statements would begin, the judge addressed Pete Eyre, who had a camera set up in front of him throughout the duration of the trial. The judge informed him that he was not to record without having filled out a form in the lobby. Ademo Freeman cited a recent first circuit court ruling stating that filming public officials in the performance of their duties is a first amendment right, and that they had permission from the defendant to record the proceedings. The judge maintained that the ruling did not apply to the courtroom. Pete and Ademo collected their cameras and left.
By this point it was 2:45, and the defense was to give their closing argument first. Before this got underway, the judge announced that he would being taking the matter into consideration today, and would deliver a verdict once he was able to find a suitable device to play the video on. In the spirit of guerrilla journalism, I powered my videocamera on and surreptitiously placed it on the seat next to me. I was able to capture at least the audio of both party’s closing statements.
Kate’s highlighted in her closing statement that John Patti’s order did not meet the criteria of a lawful order, and that even if it was to be considered lawful she was not given enough time to comprehend and respond to it. She noted that despite the affidavit claiming that she was clearly informed that she would be arrested, the video demonstrated that she was not (Patti ambiguously said, “last chance” after first telling her she had to move off of the chalk). Also noted was that each officer had a different interpretation of what she did to constitute resisting. In contesting the “false report” charge, it was explained how she gave complete and accurate information and that only one digit of information on her date of birth is in dispute. Muller’s closing argument on behalf of the state began by asking that she be found guilty on all three charges and reiterating statements made by police.
The judge stated that it could be a week, or two, or three before the “technology people” could provide him with a means to view the evidence, and that once he had done so he would give a verdict on the three remaining charges.
Like jails and hospitals, it is always a relief to leave a courthouse, and it was uplifting to come out of the building and be met with colorful sidewalk chalkings done by activists and children prior to the trial. Kate then spoke with independent media about the resolution of the case.
Is All Chalking ‘Graffiti’?
Joseph Mucci used the word “graffiti” to describe the chalkings at every chance afforded to him. Graffiti specifically refers to criminal vandalism, whereas chalk in most instances is a non-permanent alteration that will wash away on its own. I tried to ask Mr. Mucci about this point after the trial, and I received a tight-lipped non-response as he walked off into an exclusive section of the courthouse.
Stayed tuned into Free Concord for the update on Kate’s verdict, as well as more coverage as the rest of the Chalking 8 face trial. My own trial for two counts of “disorderly – refusal to move” and “disorderly – interfering” is slated for September 21st at 1:15pm.