UPDATE: Deaf blind judge gives Shadoe Garner 75 DAYS JAIL for possession of Wicca ritual athame and for littering.
DENVER, COLORADO- Shadoe Garner was found guilty today by a judge who didn’t blink at the public defender having no time to prepare, at discovery evidence not being provided to defense, at prosecutors withholding half their witnesses and videos (depriving the defense of knowing what might have be exculpable evidence), at being forwarned that a 35C Appeal was virtually guaranteed, and despite two police videos making very clear that Shadoe’s rights were violated, if only the judge had ears and eyes to see it.
The courtroom staff should have seen trouble brewing earlier in the morning when an attorney announced “the court will call Emanuel Wilson” and the old judge replied “I’m sorry, did you say Javier Lopez?” Uh, no.
Judge Frederick Rogers is a dead ringer for filmmaker John Huston, with none of the latter’s sense of humor. He tried a case before Shadoe’s, a young black vet with PTSD who was awarded a large settlement for a traumatic brain injury and who went off on his lawyers for witholding the award in a conservatorship. The judge found him guilty of making threats, however exaggerated, giving no allowances for his mental disability.
In Shadow’s case, Judge Rogers denied all motions to wave speedy trial, and declared he wouldn’t suppress the prosecution’s evidence based on the defense not having seen it. The judge wanted to see it presented first so he could assess its worth to the charges before considering suppression. Essentially, motion quashed.
The evidence wound up supporting Shadoe’s claims, that he identified himself, that he had served papers on Commander Tony Lopez, not littered, and that the “weapon” he carried was a religious talisman, if also a knife.
“My name is Shadoe Garner”
Three times on the video Shadoe Garner told officers his name when asked, both first name and last. He even provided his date of birth. From that the officers could have run a check on his identity without having to take him into custody for not having an ID. The officers even testified that they heard Shadoe say all that. But the judge only heard the defendant say “Shadows” and so felt the defendant was being evasive. Officers can even be heard on the video using Shadoe’s name as they talked to him!
Instead of cross-checking his info in their system, the officers took Shadoe from the crowd and that operation required a pat down. Before doing that, Officer Montathong asked Shadoe, “do you have a weapon or anything that could poke me?”
Weapon vs. Athame
“Yes” Shadoe replied, I have an Athame” and he gestured to his left thigh. The officers retrieved what they alerted each other was a knife. Shadow countered “It’s not a knife, it’s an athame, a ceremonial object.” He repeated that explanation several times on the video.
It might be relevant to point out that Shadoe was wearing his robe, a distinct purple garment which officers would recognize over and over on the 16th Street Mall or at Stoner Hill, where the Dirty Kids live.
Shadow thinks of himself as a Wiccan druid, and the ceremonial dagger he refers to as an athame is as ritualistic as his robe. Shadoe told me he had ground-scored the robe weeks before. It’s a hooded cape that can only be described as a theatrical vestment.
The “knife” too was theatrical. The prosecutor constantly pointed out that its length was longer twelve inches, much too long for a pocket knife. It’s length was more like a kitchen knife or, more obviously, a SWORD.
The weapon pulled from a sheath strapped to Shadoe’s leg was a 12″ bowie knife manufactured by “Force Recon”. Sargent Martinez recognized it from his Marine days as a military combat weapon.
The First Amendment isn’t a pass to COSPLAY in urban environments, but a homeless person doesn’t have much choice about what possessions they can leave at home and which they have to carry.
Both Sargent Martinez and Officer Montathong said Shadoe was wearing a trench coat, even though the videos depicted the robe clearly. What trench coat has a hood? The officers stuck to their story because it’s regulation they say to suspect protesters wearing trench coats. Officer Montathong said protesters “always hide pee containers under their trench coats to throw at police.”
I’ll note here the officers removed Shadoe from the protest because they felt unsafe in the crowd. Sargent Martinez was calling the shots that day and testified the crowd numbered “five to six” peaceful, seated, protesters. Though the police numbered twenty, Martinez didn’t feel safe. For backup Commander Lopez called in Metro SWAT too.
“I am a process server”
Shadow repeated multiple times that he was a “process server”. No one questioned the officers whether it was customary to charge process servers with littering.
Shadow was arrested for littering because he served Commander Tony Lopez with an 11-page notice of a federal lawsuit. Lopez refused to take the document so Shadoe thrust it at his chest and it bounced to the sidewalk. “Cite him for littering” barked Lopez. Officers gave Shadoe a chance to pick up his “trash” or be ticketed for littering. Shadoe replied that he couldn’t retreive the papers, they now belonged to Lopez. Lopez had been officially served, documented by a witness video. If Shadoe took back the papers the transaction would be undone. As he explained this, Shadoe cast aside a cigarette butt. “Pick that up” ordered the officers, “or you’ll be cited for littering.” Shadoe dutifully bent and retrieved the cigarette butt. He wasn’t about to be given a ticket for littering.
He didn’t have an ID. Like many homeless, he’d lost it in a previous interaction with DPD. The police confiscate IDs from Denver homeless, probably as a deterrant to further contact. But Shadoe gave his name when asked, even though the police inquiry was unwarranted.
The next step will be for Shadoe to appeal, but he’s got to do it from jail. The public defender’s office has to meet with Shadoe before the deadline expires and that’s not a likely priority for them. His next hearing is August 22 in District Court, division 5G. Shadoe is charged with felony weapons possession on account of a second offense, his persisting in carrying a ceremonial athame.
Shadoe’s single request to Judge Rogers, as the judge considered his sentencing, was to ask that the weapon not be destroyed, as called for by Denver ordinance. The city objected but the judge ruled that the evidence was required for Shadoe’s appeal. By his plea, Shadoe demonstrated that the evidence means more to him than a mere knife.
Shadoe has a very good case. The DPD abused his Fourth Amendment protection against illegal search and seizure. There’s the First Amendment right to his religion practices. And there’s the right to effective counsel which Shadoe was denied.
Judge Rogers has made a lot of work for the courts above him. Who knows how many other defendants are going to be jailed before judicial superiors figure out that Rogers has got to go.