Revolution #268, May 13, 2012
Illinois Appellate Court Upholds Political Persecution of Gregory Koger
The Illinois Appellate Court in February continued and intensified the unjust persecution of Gregory Koger by upholding his conviction for three misdemeanors and upholding the outrageous 300-day sentence for documenting with an iPhone camera the attempts to suppress the speech of Sunsara Taylor. Koger was arrested in November 2009 at the Ethical Humanist Society of Chicago (EHSC) when he was videotaping a short statement by Revolution writer Sunsara Taylor. For that "crime," the police grabbed, beat and maced him. Then they charged HIM with misdemeanor battery, resisting arrest, and trespassing. (See "A Grave Injustice Has Been Perpetrated… Free Gregory! No Jail Time!" in Revolution #211, September 12, 2010.) In its ruling, the Illinois Appellate Court went even further than the prosecutors and the original trial judge in twisting the facts and interpreting the record to advance this highly political and vindictive attack on Koger.
Koger’s lawyers have recently filed a petition for leave to file an appeal to the Illinois Supreme Court. A powerful outcry against this outrage is needed!
An examination of some of the key findings of the appeals court will show the political nature of this attack on Koger through the legal system. This is revealed by what they chose to emphasize, concentrate, and even add to the record, and what they omitted and refused to consider.
First, at Koger's trial in August 2010, the continual mantra from the judge and prosecution was "politics has nothing to do with this case, the defendant is on trial for his conduct, not his politics." The judge vehemently denied every effort by the defense to provide the highly political context for his arrest: why he was documenting Taylor's statement protesting the cancellation of her speech at the Ethical Humanist Society of Chicago (EHSC) and why the EHSC was trying to prevent exposure of this censorship.
So it was striking that the ruling by the Appellate Court prominently refers to Sunsara Taylor in an introductory paragraph as a "self-avowed communist." This fact was completely banned from the trial itself! Even the defense's request to probe potential jurors' political prejudices, including regarding communism, was turned down. The original trial judge stated that Taylor could have been speaking about anything—"organic farming or feminism"—it was all irrelevant. The word "communism" appears nowhere in any of the official record of the proceedings in open court. One of the big claims of America is that there is supposedly no political suppression, that there is no such thing as a political case. Yet here in black and white the appeals court is boldly signaling that, yes indeed, this is a political case where political acts (documenting a controversial event) are on trial, depicted as criminal acts, and in the trial the actual events are twisted to fit that framework.
Second, the Appellate Court refused to consider the video that played a key role in the trial. This was the video Koger himself taped as he and Taylor entered EHSC that morning and took their seats in the auditorium. Provided by the defense, the video was actually introduced as Exhibit 1 by the prosecution in an effort to put their own spin on it for the jurors.
This video is now posted on the defense committee website (www.dropthecharges.net), along with the original police report. The prosecution received the video the day before trial, and by the next day they rewrote the charges with coaching from the judge who then denied the defense's attempts to enter the original police report into evidence. This revealed the American justice system in action—if the defendant presents hard evidence proving his innocence, the state is allowed to change their story. Now people can see for themselves how the judge and the prosecution worked together to twist the facts in any way necessary to get a conviction. And this has been upheld by the appeals court. The EHSC president claims in the police report that he told Koger three times to stop filming and that Koger replied by saying "fuck you" to the EHSC president, who then told him that if he didn’t stop filming he’d be arrested for trespassing. A cop claims in the police report that he witnessed this. The video refutes all of that: Koger is completely silent and the president of EHSC is heard telling Koger only that he has to "stop filming," which Koger does and the video shows that he put the camera down on the seat next to him. The only aggression on film comes from the president of EHSC when he pushes his hand aggressively into Koger's camera.
The Appellate Court tried to have it both ways: bolstering its decision by using the politics that were banned from the trial, while refusing to consider documentary evidence that was part of the trial record.
New misrepresentation of trespass law is upheld
The Illinois trespass law states that in order to convict someone of trespass the state must prove that a person was ordered by a property owner to leave the premises, and then must prove that the person showed an intent to remain on the property after having been given notice to depart. Koger was never told he was trespassing at the EHSC, nor was he given notice that he must leave. After the video evidence refuted the previous statements from the witnesses in the police report that the EHSC president told Koger that he would be arrested for trespass if he didn’t stop filming—which the cop witnessed, the EHSC president directly testified in court that he never ordered Koger to leave. And the cop who grabbed Koger then changed his story and testi-lied at trial that he "whispered" into Koger's ear after he put his camera down that he would be arrested if he didn't stop filming—a whisper in a room with loud music blaring (as can be heard on the video). A convenient "whisper" that could not be documented.
A major legal argument in Koger's appeal brief drew out the danger posed by a significant misinterpretation of the trespass law employed by the prosecution and upheld by the judge during the trial. Koger was never told that he must leave the premises. However, the prosecutors repeatedly equated giving "notice to stop filming" with giving "notice to depart." The defense argued at trial and in the appeal that such conditional notice is not sufficient to convict. The prosecution went so far as to argue that if you do anything that a property owner asks you not to do, that makes you a trespasser—without any requirement that they give you explicit notice to depart, a fundamental element of the crime of trespass. To quote from the prosecutor's closing arguments in the trial transcript: "Even if they were eating a sandwich, it's not the filming, defendant's eating a sandwich, 'Sir, you can't eat your sandwich in here; if you do it again, you're going to be asked to leave.' The moment he takes that sandwich back out, he becomes a trespasser."
Astonishingly, the Appellate Court simply adopted and expounded upon the prosecution's novel and dangerous theory of trespass and failed to even comment on, let alone refute, the legal arguments raised in Koger's appeal brief. Those arguments are now a key element in his petition to appeal to the state Supreme Court.
Additionally according to Illinois law, after being given notice to depart by the property owner, a person must be given an opportunity to leave before they can be convicted under the trespass statute. The Appellate Court ignored this too and twisted Koger's alleged resisting arrest charge into "complete resistance to leaving" after he had "overstayed his welcome," allegations which even the prosecution hadn't made. Again, witnesses had testified that Koger was getting ready to leave to record Taylor's speech at an alternate location when he was grabbed by the police. The Appellate Court wrote these witnesses out of the record when it said that his intent to leave "was not supported by the record," despite citations to that testimony in the appeal brief itself! In fact, Koger would have been off EHSC property within minutes if the police had not grabbed him, beaten him up and maced him, but that's the point: His crime was never trespass or "overstaying his welcome." It was documenting a public statement of protest at a venue open to the public, and that's a key part of what is chilling about this case.
The Appellate Court went even further than the prosecution in rewriting the record. In its summation of the defense witnesses' testimony, they conveniently omitted any reference to two witnesses for Koger who were former members of EHSC, including a member of the EHSC Board at the time of his arrest, who did not know him before the events in question and who subsequently quit EHSC in protest of this very prosecution. Leaving out these key defense witnesses allowed the Appellate Court to claim that the defense witnesses "could be found wanting given their close relationship to defendant." One of those EHSC witnesses for the defense testified that, in his recollection, no one had ever been prohibited from taking photographs or videos at EHSC. But the Appellate Court simply wrote that testimony out of the record too. In contrast, the Appellate Court deemed the prosecution witnesses to be "objective." The Court didn't see fit to acknowledge the fact that the EHSC witnesses for the prosecution—the president and a Board member—had every reason to want to see Koger convicted in order to cover up their censorship of Sunsara Taylor and their desperate attempt to prevent documentation of her statement that morning. The EHSC boasts of being an open forum, and the outpouring of opposition to their unprecedented cancelation of Taylor's speech had stung them. They were determined to stop more exposure, and the videographer who was merely documenting the events—Gregory Koger—became the target of their vindictive counterattack. That targeting is both extremely cruel to Koger and dangerous for anyone attempting to document controversial or newsworthy public events.
Blatant Political Repression
Many people have asked incredulously why there has been such determined vindictive persecution throughout the whole legal process of this case, continuing with the Appellate Court. The EHSC played an important role in this unjust attack insisting that charges be brought, refusing to drop the charges against a huge national public outcry, including among humanist circles and many other people. But through the pre-trial phase and the trial itself, it became clear that the state itself was taking up this political persecution way beyond the vindictiveness of the EHSC. At a key pre-trial hearing the prosecution filed a contempt petition against Koger because his defense committee’s website talked about his case. While the judge did not allow this to go forward, he warned Koger that having a defense committee was going to harm his case—an unmistakable threat to back off the political struggle, all the while asserting that "this is not political." At the trial itself, two prosecutors were assigned, unheard of for minor misdemeanors, which rarely go to trial at all. The judge, a former prosecutor herself, coached the prosecutors on pre-trial motions and repeatedly ruled against the defense.
But the fangs of the state were openly expressed and the essence of the very political message became clear at the end of the trial when the judge revoked Koger’s bond and sent him immediately from the courthouse to jail on the basis that he was a danger to society because of a past prison record. In Illinois the default sentence for misdemeanors is probation. At the sentencing hearing the judge viciously attacked Koger’s character and his very humanity in response to moving testimony from his employer, lawyers, professors, a priest, a student he had mentored, and several others who all described his transformation from a juvenile convicted of a serious crime to a person dedicating his life to helping people and emancipating all humanity.
The outrageously long sentence Koger was given—300 days, close to the maximum for simple misdemeanors, was also a subject of his appeal. The judge at the trial equated Koger's conviction for violent crimes as a teenager almost 15 years earlier with his filming at EHSC that day and said he "chose a path of violence" there that "endangered the safety of everyone in the room." There was absolutely nothing in the trial record to support these outrageous claims and in fact, right before trial, the prosecution had reduced the battery charge to "making contact of an insulting or provoking nature" because they knew they couldn't prove Koger engaged in violence. Instead, he was the victim of police brutality, which required treatment at the emergency room when he was released from jail. The defense is appealing this outrageous sentence.
This is another chilling feature of this entire prosecution. The state is using Koger's prior conviction to justify this political prosecution and vindictive sentence. When former prisoners step forward to become emancipators of humanity and participate in changing the world, they are treated even more vindictively in an attempt to dissuade anyone else from following their example. This cannot stand in a country where over 2.4 million people, mostly Black and Hispanic, are in prison at any time, and many millions more are denied basic rights after they are released and supposedly "done their time." (See "Stop the Vindictive Political Prosecution of Gregory Koger!")
In its portrayal of Koger's conduct, the Appellate Court once again outdid even the prosecution in distorting the already twisted trial record. The Appellate Court went to great lengths to concentrate a portrayal of Koger as "belligerent," citing his alleged "abusive language" as part of satisfying the elements of resisting arrest. The defense had requested that the jury receive an instruction based on a State Supreme Court decision that held that even the most abusive language is NOT resisting arrest and the trial judge had denied that request, but that didn't deter the Appellate Court from using these false allegations against Koger. So the Appellate Court finds that recording with an iPhone constitutes trespass and swearing is evidence of resisting arrest!
This cannot be allowed to stand. Send statements of outrage and support for Gregory Koger to adhoc4reason@gmail.com. Funds for the appeal can be donated at the website of his defense committee, dropthecharges.net, or checks made out to Gregory Koger Fund can be mailed to the Ad Hoc Committee, 1055 W. Bryn Mawr, Chicago, 60660.
Visit the committee's website and if you are on Facebook (Free Gregory Koger!) or Twitter, publicize this outrageous decision and mobilize others to understand its significance and speak out too. Stay in touch and join the fight to overturn this verdict!
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