Dangerous Appellate Ruling Makes Us All Criminals for Recording With Cellphones

Posted by admin | Announcement | Wednesday 14 March 2012 5:40 am

The Illinois Appellate Court just denied Gregory Koger’s appeal to reverse his conviction.  It is time to speak out against this outrageous and dangerous ruling!

As you may recall, Gregory was arrested because he used an iPhone to peacefully take pictures of Sunsara Taylor prior to a public event at the Ethical Humanist Society of Chicago (EHSC) on Sunday. Nov. 1, 2009.  This happened despite the following clearly established facts:

  1. Ms. Taylor and Gregory came to EHSC that Sunday morning so she could make a very brief statement politely protesting the short-notice cancellation of the widely publicized lecture she had been scheduled to give that Sunday morning.  She also was there to inform the people who had come to hear her speak but were unaware of the cancellation that her lecture would take place within minutes at a nearby alternate venue.
  1. Both Gregory and Ms. Taylor were welcomed onto the premises by the president of EHSC and the meeting greeters.  Gregory openly video recorded this as Ms. Taylor’s official videographer.  He had also filmed the day before when Ms. Taylor gave an extremely well-received workshop to a packed house at the same venue!

Gregory and Ms. Taylor were unaware that the president of the EHSC had arranged to pay plainclothes local police officers, who were also marines, to act as private security guards that Sunday morning and presumably do his bidding.  Even though other people were photographing at the same event, Gregory was singled out and told to “stop filming.”

When Gregory put down his large camera and took out his cell phone to catch Ms. Taylor’s final words, the EHSC president ordered the police into action.  The police grabbed Gregory, dragged him out of the lecture hall, beat him up, handcuffed his hands behind his back, pepper sprayed him in the face, and arrested him!

An Illinois Supreme Court ruling says that after someone is informed that he is trespassing, he must be given a “reasonable opportunity to leave the premises.” (People v. Mims, 1972)  The video that Gregory filmed that day proved that he was never told that he was trespassing, never ordered to leave, and never given an opportunity to leave.

Gregory was subsequently charged with trespass, battery, and resisting arrest.  These types of charges are commonly called “cover charges” because they are so often used to cover up police misconduct, such as using excessive force during an arrest.  For a discussion of this read: American Constitution Society Issue Brief “Disorderly (mis)Conduct: The Problem with ‘Contempt of Cop’ Arrests.”

The original police report of the event formed the basis of the charges against Gregory.  In the report, EHSC witnesses and the plainclothes police made statements claiming that Gregory had been warned about trespass and told to leave.  But the video Gregory filmed that Sunday completely refuted those stories in the police report.

The day before trial, Gregory’s lawyer turned over Gregory’s video to the Cook County State’s Attorney who viewed it for the first time.  You would think that a prosecutor would drop the charges when video evidence clearly shows that the charges they had brought against someone for nearly a year were totally false.  Instead, the prosecutor changed the charges against Gregory to try and fit the video.  And the EHSC witnesses and Skokie police changed their statements that were in the original police report to a new set of lies.

Trial Judge Disregards Law and Denies Evidence

At trial, the prosecution repeatedly defined videotaping without permission as equivalent to trespassing.  Gregory’s attorney objected to this definition because that is not the legal description of trespassing in Illinois.  Filming is simply not trespassing.  But Judge Marguerite Quinn denied this highly important objection.

Judge Quinn also did not allow Gregory’s attorney to introduce the original police report as evidence.  This report would have made it very clear that the stories told by key prosecution witnesses at trial were an attempt to match the video and were substantially different than the lies they originally claimed in the report.  For example, the arresting officer claimed in the report that he heard the warning given to Gregory about trespassing.  But because the video revealed that this warning did not happen, the police officer instead testified in court that after Gregory was told to stop filming and had put his camera down, he “whispered” in Gregory’s ear that he would have to stop filming or leave.  Gregory unequivocally states that the whisper never happened.

Judge Marguerite Quinn consistently ruled against Gregory’s attorney’s important motions and objections.  She also incorrectly let the jury believe that telling Gregory to “stop filming or leave” was equivalent to a notice of trespass.

A Vindictive Sentence

At sentencing, Judge Quinn disregarded the numerous witnesses and personal letters testifying to Gregory’s good character.  Instead, she sentenced him to almost the maximum sentence possible and denied him bond while he appealed her sentence, because she claimed he “chose a path of violence” on that Sunday.

There had been no testimony at all during the trial that Gregory had been violent in any way.  In fact, minutes before the trial began, the prosecution reduced the charge of “battery” to “contact of an insulting or provoking nature,” because the prosecutors knew that there was no evidence that Gregory had done anything violent or even slightly disturbing.

Judge Quinn seemed intent on punishing Gregory for crimes he had committed 13 years previously, when he was a homeless juvenile, and for which he served time.  Since then, he completely turned his life around, educated himself in prison, became a paralegal for a Chicago law firm, and dedicated himself to fighting for social justice, which is why so many people testified to his good character during his trial.

State’s Attorney and Appellate Court Misrepresent Trial Record

When Gregory appealed his convictions, the State’s Attorney prosecutors responded by misrepresenting critical testimony.  For example, they claimed that Gregory was told to leave by the EHSC president, but the president actually testified in court that he never told Gregory to leave.

Astoundingly, the Appellate Court claims that the video that was shown several times during Gregory’s trial as “People’s Exhibit 1” cannot be considered as part of the appellate record!  Appellate Judge Aurelia Pucinski, who wrote the order denying Gregory’s appeal, appears to have adopted the prosecution’s misrepresentations and faulty theories about the case in their entirety.  But she never addressed the serious legal questions raised in Gregory’s appeal.

Next Step:  Appeal to Illinois Supreme Court

Gregory and his attorney, Jed Stone, will appeal the decision of the Appellate Court to the next higher court, the Illinois Supreme Court.  Attorney Stone will argue that simply telling Gregory to “stop filming” was a conditional order, leaving open a whole range of permissible actions on Gregory’s part, and cannot be equated with notice of criminal trespass.  Furthermore, he will argue that a person cannot be charged with criminal trespass unless, after receiving unambiguous notice, he is given reasonable time to depart the premises.

If the police can arrest someone for trespass without notice and without affording the person ample opportunity to leave, it opens the door to criminalizing all manner of benign behavior.  “In this case, videotaping becomes a criminal offense,” says Attorney Stone. He believes that such a precedent would enable any sponsor of an event that was advertised as free and open to the public to select certain individuals, for whatever reason, and have them arrested and charged with criminal trespass.

Gregory’s Case Affects Us All

“In an era when cell phones are everywhere, their power to document dissent and reveal the truth of events that powerful people want hidden is changing the world.  This case is setting a precedent that poses a danger for everyone who uses a cellphone at a public event on private property,” says Gregory.  “If you pull out your cellphone, you could be arrested for trespassing.  We cannot allow this chilling ruling to stand.”

Gregory Koger will need your continued support.  You can send him messages of support at adhoc4reason@gmail.com – and let us know if we can use them on the website.  We can certainly use any contributions that you make – lawyers and appeals cost money.  Please send donations to Ad Hoc Committee, 1055 W. Bryn Mawr, #226, Chicago, IL 60660.

We hope you will tell other people what’s happening – because we are all affected by this case.

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