Nate Buckley Trial: Language, Language...
by George Sax
Prosecution and defense lawyers sparred over questions of free speech and the rights of property owners in Buffalo City Court Monday, arguing over a defense motion to dismiss charges in a high-profile criminal case. Nate Buckley, 27, was arrested in April of last year during a political demonstration outside M&T Bank’s complex on Main Street near Chippewa. Buckley and about 50 others were protesting the bank’s financial ties to war contractors. He has been charged with misdemeanor counts of trespass, obstruction of justice, and resisting arrest. Monday afternoon, Judge Joseph Fiorella heard oral arguments for and against the motion by Susan H. Sadinsky, chief of the Erie County District Attorney’s city court bureau, and defense lawyers Daire Brian Irwin and Michael Kuzma.
Irwin was first at bat, and he attacked Sadinsky’s written submission to Fiorella denying that there were any First Amendment questions involved. “I submit it is about the First Amendment,” he told Fiorella. Both the content and intent of Buckley and his fellow protesters, Irwin went on, were entailed in what happened. If they’d been outside the bank “for an M&T appreciation day,” he said, “the outcome would have been different.” That the demonstrators’ message was objectionable to bank officials was a crucial factor in the bank’s response, Irwin argued.
When Sadinsky’s turn at addressing the court came, she denied the free speech argument’s relevance. “First Amendment rights don’t usurp private property rights,” she told the court. People can be ordered from private property for “objectionable behavior,” she said. The demonstrators were on bank property “for 20 minutes, until the police showed up.” Sadinsky cited several amateur video records of portions of the events at the bank, videos that have been posted and widely viewed on the Internet. They show, she contended, that Buckley and others were on a ledge between the red-brick plaza beside the old Goldome bank building and the public sidewalk along Main, on private property that they refused to vacate when told to go.
The videos do show Buckley being confronted by Niagara Frontier Transit Authority cops on that sidewalk, being pepper sprayed and arrested, but the prosecutor claimed he was responsible for that result. Buckley, she said, “engaged in conduct that escalated the situation.” The defendant intervened when two officers were approaching another demonstrator, also on the sidewalk, and “interfered with their movement” and “yelled” at them. “This is not just a case involving trespass,” Sadinsky went on, saying Buckley “did not go willingly” with the police, resulting in the arrest-resistance charges. Others have seen the videos as indicating Buckley wasn’t offering resistance, and while the defense didn’t try to make this point Monday, Kuzma told Artvoice in a telephone interview that if the case goes to trial, “We will vigorously fight her interpretation of the videos.” (Sadinsky referred questions about this to District Attorney Frank Sedita III, who did not respond to messages left at his office.)
An e-mail obtained by the defense and sent by an M&T vice-president, David Mondry, to other bank officers several days after the arrest purports to establish a chronology of the event. Mondry, who was monitoring the situation, refers to the crowd being asked to leave the bank’s plaza only one to two minutes before the NFTA officers were called.
Buckley and his lawyers have challenged the basis for the trespass charge. On Monday, Irwin argued that “there was no harm [to the bank] caused,” and that if the police and the bank’s security and officials “had just chilled, it might have been over in five minutes.” He cited the plaza’s open design and the frequent use by the public as evidence the trespass accusation was ill-founded. “We have dominoes here,” he said. “If the trespass goes, the other charges go.”
Kuzma summarized the defense argument against it, raising questions about the origination of the plaza project over thirty years ago, including the acquisition of the land by the now defunct Goldome Bank with a City of Buffalo loan. Kuzma challenged the DA’s assumption that the property, now M&T’s, is truly private. “There clearly is a public easement,” he said. When Irwin said, “The City of Buffalo didn’t give me an acre in front of my house,” Fiorella sounded skeptical. “The key word is ‘gave,’” he responded. “If they [the city] gave it to them, it’s theirs.”
The defense also complained that they have encountered resistance from the NFTA as they sought documents from it, hindering their work. Thirty-seven of those documents, Kuzma said, have been improperly withheld by the agency, including a report by New York State’s inspector general on a transit agency’s officer’s use of pepper spray against Buckley. The current unavailability of possibly important evidence, Kuzma told Fiorella, made the prosecution’s request for the court to dismiss the motion because of inadequate timeliness even more fallacious than it otherwise was.
Earlier, Irwin countered Sadinsky’s adverse comments about his client’s character, pointing to Buckley’s civic activities and volunteer work in his community: “He’s a model citizen and a community asset.”
Sadinsky had referred to Buckley’s plea at age 18 to a misdemeanor larceny charge for taking what Irwin said the young man thought was discarded scrap metal on a railroad right of way, as well as his agreement to an adjournment in contemplation of dismissal at that time. (Irwin told Artvoice he didn’t think the latter was appropriately brought up by the prosecution.) If he didn’t know his client, Irwin said, Sadinsky’s characterization of him would lead him to think “he was a peckerhead.” As Irwin gave a very brief apology to the court for his language, a faint smile seemed to twitch the corners of Fiorella’s mouth.
The judge reserved his decision on the motion.blog comments powered by Disqus
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