THE CRIMINAL TRIAL (set for November 29, 2011) in the Strange Case of "The KKK (Koji Komedy Klub) vs. Robert P. Dutcher (Krazy Komic)"--Simple Trespass Infraction

I wrote about the kontroversy at the KKK (Koji Komedy Klub) in my blog post of October 22, 2011.  Here's that link to bring you up-to-date on what happened.  http://wwwbobs-blog.blogspot.com/2011/10/second-near-miss-with-arrest-this-time_22.html

The original criminal charge of First Degree Criminal Trespass carries a jail sentence of up to one year in jail and a $1,000 fine.  For a man who values his freedom (your faithful correspondent) and currently has no positive cash flow from a job, these are not appealing penalties, especially for a crime I did not commit.  But this is America, The Land of the Free and the Brave, of Due Process, The First Amendment, and the right of black comedians to use talk about "n's" who should be lynched, and other young comics to tell degrading "funny" stories about oral and anal sex, penis sizes, and jews who should be incinerated and put in car ash trays.  And it's also a country where Krazy Old Komics like yours truly should be free to tell audiences who hear those other comics that the "jokes" of the other comics are offensive and degrading to blacks and jews and women.  But the Kommanders and Kommandants of the Koji Komedy Klub (KKK) would prefer to see Krazy Old Komics like yours truly thrown in jail and throw away the key.

One of the 6  police officers who responded to the complaint of an unidentified individual at the KKK gave yours truly a "Misdemeanor Summons and Complaint" charging that "The undersigned officer complains that: On 10/17/11 at 23:44 in New Haven, Dutcher, Robert, did commit the following MISDEMEANORS/VIOLATION(S), 1. Trespass 1, STAT.ORD. NO. 53a-107, Bond Amount--PTA (Promise to Appear), Signature Officer [illegible name], Shield No. 45, New Haven Police Department."  The ticket goes on to say, "COURT APPEARANCE IS REQUIRED ON: 10/28/11 AT (Time) 0900 AM, Address of Court: 121 Elm Street, New Haven."

The commanding officer was a tall (over 6 feet) black man with very cool black rimmed plastic glasses with smoky gray lenses.  At first, he was very gruff and told me I could not ask him any questions, so I remained silent.  Unfortunately, my Komedy Komrade, Elijah Sanchez, was asking one of the officers why 6 uniformed police officers had seen fit to come to the Koji Komedy Klub to arrest us.  "Aren't there much more serious problems in New Haven than two comics whom somebody at the KKK doesn't like?," Elijah asked?  With that, he was unceremoniously forced into the back of one of the idling squad cars and taken to the New Haven Police Station.

I knew it did not pay to say anything which might upset the officers, despite the fact the First Amendment has never been interpreted as permitting the police to take someone into physical custody for asking a police officer a question about the allocation of police resources, as Elijah did in a polite and respectful way.  I could tell that one of the white officers was a bit hyper.  When I started to ask him a question about why we were being thrown out of the KKK, he told me to stop talking, so I did.  I saw nothing to be gained from saying or doing anything which the officers might interpret as challenging their authority or manhood or whatever else was going on in their minds at the moment.

Once Elijah was taken away in the squad car, the situation calmed down and the black commanding cop said I could now ask him a question.  So I asked him if he could tell me what the hidden meaning was in the red tee shirt with black lettering I was wearing.  It was a WESCREW tee shirt which I bought at the Head of the Connecticut River Regatta on Sunday, the day before my arrest at the KKK.  He didn't see it right away, so I alternated putting my left fingers and hand over the SCREW and my right fingers and hand over the WE.  This little maneuver succeeded quickly in enabling him to see the hidden message.  He smiled broadly, as though involuntarily, looked me in the eyes through his really cool gray lenses, and said to one of the other officers, "He's a comic.  Just give him the ticket and let 'im go."

I also then summoned the courage to ask him if I didn't have a right to speak out against the use of the "n" word by the black comics.  He told me to take that up with my lawyer.  I said I AM my lawyer and he said, "That's right, you are a lawyer.  Okay, so take it up with the Liquor Control Commission or whoever.  Look, we're here to respond to a complaint that you wouldn't leave the restaurant.  If you want to sue us, the police, go right ahead.  That's your right."  I told him in no uncertain terms I had no interest in suing the police.  The police protect me as well as everybody else.  "You're just doing your job.  Somebody wrongfully called you and claimed I was trespassing, which I was not, and I realize it's not your job to decide who's right and who's wrong in this situation.  I'm sure if I felt I needed your help, you'd help me as you'd help anyone else who claimed to need your help."

I also asked him who this man was who told me I was obnoxious and apparently called the police but had refused to tell me who he was or what his relationship was to the Koji bar and restaurant.  I told the officer I had asked the man his name and who were the backer and permittee of the Koji, but he'd refused to answer me.  I know from my law practice that the backer and permitee of a bar are the legal representatives of the owner.  The black commanding cop told me, "Oh, he IS the permittee.  His name is right over the front door. Look."  And then I saw, on a small sign above the front door, the name, "Trun Tran."  It would have nice of him to have told me that when I asked him inside the bar while we were waiting for the police to arrive.

I was finally released by the police to go home at about 12:30 a.m. Tuesday morning.  In my car I got a text message from Elijah, which said, "I'm in back. What if he rapes me?"  I replied, "Stop arguing.  They are good cops."  I did not hear from Elijah again until the next morning, after he was released from the police station. He told me he did not get assaulted by the cops and was put in a cell for the night with a homeless man who was drunk but very nice to Elijah.

In the next few days, I did some legal research at the Middlesex County Courthouse library in Middletown.  I looked into the elements of the criminal offense of Criminal Trespass in the First Degree and realized quickly that I did not commit that or any other crime.  My arrest was a malicious prosecution by the KKK.

I also determined that I probably have a right under Federal and State law to go to the KKK, be served food and beverages there, and perform my comedy routine, including, if I choose, to criticize the other comics for telling jokes degrading to blacks, women, and jews.  Those comics arguably are violating the civil rights of black people who would object to their calling black people by the "n" word, although I would not make such a legal complaint myself.  Although I believe the law gives me a right to criticize such "humor," I would not choose to try to stop them from doing such routines.  I just want the right to do my clean (attempts at) humor and I will not try to stop them from doing their brand of humor.  Live and let live is my philosophy here.

Armed with a deeper understanding of the legal context of the situation, I appeared in New Haven Superior Court last Friday, October 28, 2011.  This is the old New Haven courthouse, on Elm Street, on the north side of the New Haven Green.  The building is a very old white marble structure with gigantic columns along the Elm Street and Orange Street sides of the courthouse.  It's an imposing structure, and beautiful and charming compared with the Redevelopment Monster on Orange Street which is an ugly concrete structure.  The concrete courthouse is a more efficient building, but most unattractive aesthetically.

My costume as a retired lawyer with long hair (about the length of The Dude in "The Big Lebowski," starring Jeff Bridges as The Dude) and a gray beard, and not wearing a business suit, is blue jeans, a Red Sox hoodie, and, underneath, the WESCREW tee shirt.  This enabled me to experience the criminal arraignment courtroom on the first floor as every member of the public does, 5 days a week, 51 weeks a year (the court closes down during the week between Christmas and New Years).  I realized that The Public is treated respectfully but with a bit of sneering disdain by the court system staff.

I waited in line, like everybody else, to see the prosecutor to discuss my case.  Lawyers in suits and close-cropped hair (with few exceptions) are allowed to cut in front of everybody else.  I could have done so, since I AM a lawyer, but I don't think that behavior would have been well-received by the court marshals, given my hippie-like appearance.

The prosecutor was surprised I planned to exercise my right to have my case heard by a jury.  I didn't tell him I was a lawyer.  He offered to reduce the charge (this is what plea bargaining is) from a crime to a mere infraction, Simple Trespass, if I agreed to plead guilty and pay a $50 fine.  I refused.  I told him I wanted to see the police report and statements of witnesses to prepare for trial.  He told me I'd have to take that up with Judge Licari when I appeared before the judge shortly. I said fine.

When my case was called, I went up to the podium and identified myself to Judge Licari as "Attorney Bob Dutcher, from Middletown, retired and now doing stand-up comedy and other things.  I mean, I'm not doing stand-up right at this moment, but I do do that.  I remember you, Judge Licari, from years ago when you sat in Middlesex Superior Court in Middletown, on Short Calendar, in the old courthouse building."  He smiled and the prosecutor then said, "Your honor, I'm going to substitute an Information charging Mr. Dutcher with the Infraction of Simple Trespass, for which he does not have the right to a jury trial, but, instead, will be tried before a magistrate."  [After looking at the statute and practice book rules on trials of infraction charges, I determined that the prosecutor was wrong about a magistrate trial.  For this charge, a trial to a Superior Court judge is required.  Sure enough, when the notice arrived in the mail from the criminal court clerk, I learned that the case had been set down for a "court"--meaning judge, not magistrate--trial.] That was essentially what he had offered to do when we talked earlier, before court, but at that time I would have had to plead guilty and pay a fine.  Now I was able to plead not guilty, which I did, and go to trial, which I will.

Elijah Sanchez had talked with the prosecutor after I had, before court, and agreed to plead guilty and pay the fine, to get rid of the case and the tension associated with having to think about it, prepare for trial, and go to trial.  I told him to do what he felt best.  However, when he saw what happened in my case, where the prosecutor reduced the charge to an infraction from a crime, he informed the judge that he wished to reject the offer to plead guilty to the infraction and pay a fine.

I have now learned from the criminal clerk's staff that the trial before the magistrate, who will be a lawyer who hears very minor cases, will be held on Tuesday, November 29, 2011.  The trial will take place in Courtroom E on the third floor of the courthouse at 121 Elm Street, New Haven.

I have left a voice mail for the prosecutor, and faxed him a letter, requesting the police report and statements of witnesses.  I need these documents to prepare for trial.  If any of you wish to observe the trial, please feel free to show up on November 29th.  I take this case seriously and realize that the outcome is always uncertain, no matter how well you think you've analyzed the case.  As many of you will probably Comment to me following this blog post, I probably have a fool for a client, since I'm representing myself in a criminal prosecution.  While foolish, I hope I'm also successful.

I'll keep you posted on all important developments in this case.