Sunday, December 03, 2006

Charlie Grapski: Alachua Activist

TR: Congratutions on the charges having been dropped. Although the papers hinted at the possiblity that the state might re-file charges against you, do you think this woud be a likely course of action for them?

CG: The original prosecution itself was highly problematic. The statute (934.03) is very clear. This is not a statute which prohibits recording of people's conversation - it outlaws the "interception" of SOME communications (but not all). Interception does not require recording, the mere HEARING of such a conversation can be as unlawful under this statute as the recording.

The Constitution (both U.S. and Florida) are also clear in this case. This is an issue of the right to privacy (protected under the U.S.Constitution and the 4th Amendment). In order to violate this law, you have to have an expectation to privacy that is violated, and that expectation has to be reasonable. In this case Watson never had a reasonable expectation of privacy. But it is far worse. He did not even have a subjective expectation (he did not himself believe he was NOT being recorded) of privacy. Indeed you can listen to the audio of our conversation for which he arrested me on the Defense Committee site( and you can read a transcript there as well.

What you will see there should shock any member of the public - not
just because Clovis arrested me over this; but because the State Attorney had this audio recording in their possession from the first day and KNEW that there was no violation of the law - yet they prosecuted me for the past six months until I forced their hand with my right to a speedy trial.

To determine whether a violation of this law occurred there is a two-pronged test of the right to privacy (see Katz v. U.S. in the U.S. Supreme Court). 1) Did the individual have a subjective expectation of privacy? (Did he believe he/she was in a situation in which they had taken sufficient and responsible steps to be in a situation in which they could believe that their communication was private)? Clovis Watson met with me in his office with his door open and another member of the public there. There is sworn testimony from other City officials that they overheard portions of our conversation. The recorder was in plain sight the entire time. And indeed before Watson even arrived the issue of the recording was well known in City Hall as the Deputy Clerk, Alan Henderson,was told he was being recorded. So clearly this is not a case of a subjective expectation of privacy.

2) Was that expectation reasonable? To determine this it has to be an OBJECTIVE expectation of privacy - in other words - one that is publicly recognized. Clearly this is not a case where the public recognizes a right to privacy. And there is ample case law in Florida to state that in a business office, unlike one's home, one would not have an expectation of privacy in such a situation. Thus, if I went into a business, and SECRETLY recorded a conversation, meaning without the knowledge of the person whose office it was (although it was a conversation with myself and not my hiding a recording device and capturing that person's communications with others), I would not be in violation of this law. So how could Watson (and Cervone) claim he had a right to privacy in a public office that a private businessman would not have?

In this case it gets worse. In Florida, the Constitution (Article I, Section 24) establishes the right of the public to observe and participate in all aspects of their government. This is where the Sunshine Laws come from. And there are three key statutory aspects that make up the statutory enactments of the Sunshine Law: 1. The Ethics Law (Chapter 112); 2. The Public Records Law (Chapter 119); and 3. The Open Meetings Law (Chapter 286). The sum of the Constitutional language and that of these statutes makes it clear that the public, in Florida, is not ready to recognize any right to privacy of a public official WHEN acting AS a public official doing the public's business. That individual is acting, then, as a public servant and in the sole interests of the public. Thus it is clear that Watson had no expectation of privacy that was violated in this case.

Yet it was prosecuted by the State Attorney. Why should be the question that is being asked by the public.

And the answers that are possible are very troubling. I will only elaborate on one, the one that the State Attorney publicly put forward in Court. Geoffrey Fleck, the prosecutor for the State Attorney's office, stated in response to an argument that Joe Little began discussing one of my three motions to dismiss with, that Clovis Watson, a public official, has a GREATER expectation of privacy than a private citizen.

Think about that.

Little argued the obverse case: What if I, the private citizen, went into Watson's office and spoke with him and he secretly (without my knowledge or consent) recorded me? And what if in that conversation I admitted to a crime?

How would the Court and the State Attorney view my pleading that my right, as a private citizen, to privacy was violated by the secret recording and thus that the recorded evidence was inadmissable in court?

We know, because there is case law on this one too, and they would say that I, as a private citizen, had no expectation of privacy in that situation.

Yet the obverse, according to the State Attorney, is not true. In the State Attorney's mind the public, the people, have FEWER rights than officials, public servants.

That is the definition of an authoritarian, not democratic, system of government.

Further making this prosecution problematic is the legal theory that the State Attorney is using as the basis of his approach to law enforcement. According to the State Attorney, if there is no case law PERMITTING a private individual to do something, the assumption is that it is legally PROHIBITED.

That turns American jurisprudence on its head. And it is the definition of an authoritarian legal system, not a democratic one. In America, you are innocent until proven guilty, under the law. But not according to the State Attorney. The assumption is guilt. And it matters not whether the legislature has enacted a statute positively prohibiting an act - if the Court's have not recognized a positive right to perform the act - the State Attorney is assuming it is unlawful.

This is an incredible abuse of power by the State.

So, with that background, let me get to the question - which was about ADDITIONAL felony wiretapping charges.

This gets even more interesting. After Clovis Watson arrested me (May 1st) the State Attorney knew how BAD a case they were handed. Rather than dropping the case, as they should have, they instead tried to force me into a position of weakness in order to get me to make a deal (and they offered me several deals).

To do this they went to two other City of Alachua officials and SOLICITED their filing additional sworn complaints against me.

They then threatened me with these felony charges, in addition to the original, and expected me to cave in to their deals.

The ironic thing is that these two potential cases are even WEAKER than the one with Watson. But the State Attorney, again, is ignoring the actual statute and instead working with what certain public officials DESIRE to be the law (a law that insulates them from public scrutiny and the ability to be held to account for their actions as public servants).

One case was that of Alan Henderson. Henderson, the Deputy Clerk, started this whole fiasco off on April 28th when he, as the City's public records custodian, refused to comply with Florida's public records law in providing me documents relevant to my investigation into fraud and misconduct in the conduct of the absentee ballot portion of the April 11th City election.

After I was released from jail I went back to City Hall to complete the inspection of those records which I was in the process of when Watson arrested me.

Unexpectedly, after an hour of my work, Henderson walked up to me and asked if I was recording him. He knew I was because I publicly stated that I would record ALL of my transactions with the City. Furthermore he watched me place the recording device (a second one - my other one is still in the possession of the State Attorney) on the table when I began my work and watched me dictate notes into it during that hour.

But the State Attorney had arranged for him to try and "set up" a criminal charge under their distorted theory of the law. He walked up to me, asked if I was recording him, and I responded saying yes, that he knew I was recording him, that he had been notified of that, and he could see I was, and that I had a right to record him as a public official and as I was in a public building.

He then demanded that I turn the recorder off. The State's theory being that he has an absolute right to NOT be recorded without his consent. And thus that right entails his right to demand a recorder be turned off in his presence. It does not.

I stated to him I would not turn off the recorder. He stated at that time that he did not want to be recorded. I then stated to him that I had not asked him to speak with me and he was free to remain silent. But that if he wished to speak he would do so knowing my recorder was on.

And then he chose to speak. And the reason he wanted the recorder turned off became apparent. He was terminating my right to inspect those records again before it was completed. He had no legal authority to make such an arbitrary decision. But he did - and I got it on record.

So the State is threatening me with a felony charge for this one.

The second one is even weaker than that. In that case, on the recording made with Watson on the 28th of April, in the background you can hear the business of City Hall going on. And at one point, Watson's assistant Tara Henderson is overheard talking with Eileen McCoy (who was with me at the time) about her weight. Its one sentence.

She spoke loudly enough to be heard in another office, and thus by anyone at City Hall, and thus was picked up on my recording. She clearly had no expectation that this communication would be private (again this is the basis of this law - it is not a law against recording, but against the invasion of privacy through the "interception" of a communication that you would not be privy to without the use of some extra device to hear the communication (i.e. bionic ears)).

But this is what the State Attorney thinks is their best case. Its actually their weakest of all. But Geoffrey Fleck stated to me, in the presence of Bill Cervone, the week before the trial that they intended on prosecuting me for that charge if I did not agree to a deal that kept this from going to trial. He stated, at that time, and I quote: Don't view our [the State Attorney] offering you a deferred prosecution [for the Clovis case] as a sign of weakness. You don't want me [Fleck] to try you on a charge of recording a fat woman discuss her weight problems without her knowledge when I fill the jury full of fat women.

To that I responded, and again I quote, that: If you bring that charge you will be a laughing stock.

So here is where we are currently.

Immediately after the judge dismiss the case, in less than ten minutes, upon one of my three motions to dismiss - I spoke with Spencer Mann of the State Attorney's office.

Spencer Mann has been a problematic actor from the start in this saga. He is from Alachua and is a political actor more than a law enforcement actor. His official role in the State Attorney's office is that he is their PR guy. But he is technically listed as an "investigator" for his pay grade - but he is not an attorney.

Mann, who personally had possession of my recorder since May 4th (also problematic), stated that I could retrieve my property immediately from his office now that the case was dismissed.

Before I got there, however, while I was being interviewed by the Gainesville Sun, I received a phone call from Mann. He stated that the State Attorney's office was going to deny the return of my property and he stated that they were considering pursuing the other charges.

Since then I have made numerous written inquiries and demands for the return of the evidence. Mann stated that he could not do that as they were considering further prosecution. I asked him to put that in writing. He refused. He stated that the person who was requiring the recorder be withheld and was looking into further prosecution was Geoffrey Fleck and that he was not going to be available until Monday (this past Monday). He said he would inquire with him at that time.

On Monday I contacted him and he said he would get back to me. It took three days for me to get a response - at which time he stated that it was Bill Cervone who was ordering the withholding of the recorder and maintaining the posture of pursuing further criminal charges.

I have in writing an email from Cervone stating that they are still viewing one of the cases referred to above (I belive the Tara Henderson case) as active and thus were withholding that evidence for that case.

I then made a demand for the return of that evidence as well as an extensive public records request of his office.

Currently I will be meeting with Cervone this coming Monday to review the records I requested and to discuss the return of my recorder. His email to me evaded the actual issue of further prosecution, other than to say we would "discuss that matter," on Monday.

I am currently actively pursuing the State Attorney to either "put up or shut up." I will not allow them to drag this out multiple months as they did the prior case.

If they want to charge me I am ready and willing for them to book me into jail and file the charges formally. I will defend myself against these charges again, prevail, and in the process expose further the very serious problems we have not only in Alachua and Alachua County - but the entire Eighth Judicial Circuit (that is six counties - within which Cervone is the highest law enforcement official).

Thus I am currently taking whatever steps I can to force their hand one way or the other on this. If they want a trial - I am ready to give them one. But if they were smart they would drop it. And if they were honest actors, in their public capacity, they would drop it. The ball is in their court. But I am ready to play, with the confidence of victory, if they choose to continue the game.

TR: Now that the charges against you have been dropped are you still 'outlawed' from the City of Alachua? And more importantly do you remain banned from the City of Alachua Commission? Have you considered going there to let them know of the good news? LOL

CG: The "outlaw" status (I was banned from anywhere in the City limits and prohibited from contact with any City official) was directly connected to the Watson charge. It was imposed on me as a condition of my release without bond - after the City and State Attorney attempted to have me re-arrested and re-jailed several times.

The very concept again is absurd in a democratic country and an extreme violation of my rights (and those of others).

However, the moment the case was dismissed, so were the restrictions.

Thus I immediately went for lunch on Main Street in Alachua just after the case was dismissed.

And I was at the first City Commission meeting thereafter - and I addressed the Commission about further wrongdoings in the City of Alachua that night.

The work in Alachua has just begun. And it has implications well beyond this one small North Florida town.

We need to prove to Americans, once again, that they are citizens - not subjects. And therefore we have to prove to them that you CAN fight City Hall.

TR: What reactions do you have to the loss of Ed Jennings? Does this loss highlight the successes of what has been called 'Operation Red' or was this an isolated race?

CG: Operation Red, or the attempt to turn Alachua County into a Republican stronghold by strategically taking over the small towns in the County around Gainesville with the money of big box corporations and land developers along with a strategy of recruiting "leaders" within the African American community (i.e. Clovis Watson) to bring the African American vote to the Republicans and away from the Democrats is a very real undertaking. And a very problematic one from many perspectives.

And it did have some impact on the Jennings race, but I think a very minor impact in the end. There was a concerted effort to take a few "prominent" African-Americans and use them to try and convince the majority of African-American voters to vote Republican. I don't think it had much success if any.

There are other factors that were more significant in that race, I believe. First of all you have to remember that this was a State Senate race. And that means it involved far more than just Alachua County voters. Jennings was not well known outside of his House district (the seat that I was originally seeking). And he is not strongly supported by the more progressive Democrats - although they did vote for him in the end in this race. Oelrich, on the other hand, had wider name recognition as Sheriff.

But I think the major factor was money. And here is where the Republican Party and things like "Operation Red" come in. The State Republican party poured money into that race. They were determined to win that seat for the Republicans (although Rod Smith was hardly a staunch opponent to the Republicans, in terms of policy rather than party, as the Democrat in that seat. Don't forget Rod identified himself with the "New Democrats" and the "Moderate Democrats" (two phrases meant to suggest, without saying,"Conservative Democrats").

And Oelrich bombarded the public with TV ads on every channel ever fifteen minutes and not just one high color glossy mailing a day but often two or three a day (and even a poster sized mailout, I kid you not).

I think this money, and thus the advertising, was the biggest factor in that election.

And it was an extremely negative race. And while Jennings came back in the end with a few negative retorts, the primary negativity (and it was often viscious although distortive in the facts) came from Oelrich.

Indeed this is one reason I think many of the progressive Democrats eventually voted for Jennings rather than leaving that race unmarked (which I know was the original plan of many).

But it just was not enough. Remember also that although that seat was held by a Democrat, Rod Smith, unlike District 23 in the House (which is over 60% Democrat), that Senate district contains a large portion of rural areas.

It was never an easy race for Jennings. But in the end I think it was money that won it for Oelrich. And it was money that was poured in by the State Republican machine to win that seat.

TR: You have commented in regards to offers made by the State to your legal defense team; now that the charges filed by the State have been dropped, do you expect to receive or has legal defense team already made or received contact from Clovis Watson's and/or City of Alachua legal counsel. in regards to your law suit(s) involving the disputed [fradulent] election?

CG: I was personally approached by the State Attorney numerous times over the last six months to make deals instead of being prosecuted. I turned them all down.

The first one was basically if I agree not to prosecute Watson in civil court for his false arrest and detention that the State would drop all of the charges against me including that one. I turned it down.

The last one, the week before the trial, excluded that provision (although Geoffrey Fleck tried to persuade me that the only person I could sue civilly was Watson when he realized that I saw the City as a potential defendant as well) of not prosecuting Watson (or anyone).

It was a deferred prosecution. And it was without supervision and without any fees or community service that normally come with this. I turned it down too.

Why would I make a deal when I did nothing wrong? I gave them the opportunity to save face by dropping the charges. They refused.

Since the case was dismissed I have not been approached by attorneys for either the City or Watson. I did not expect to be.

However, as of last week, I filed a notice of intent to sue - which was required since one of the defendants that I am suing is a municipality (the State gives itself extra protections and rights than it gives private individuals) - and thus began the offensive phase of this case.

The intent to sue named the following as defendants: the City of Alachua, Clovis Watson (personally), Jean Calderwood, Mayor (personally), Alan Henderson, Deputy Clerk (personally), and Tara Henderson, Assistant to Watson (personally). It also stated that other City officials may be added as defendants during the discovery phase (and I suspect that this will be likely).

That is where we are at now. There also has to be some consideration of legal action against the State Attorney's office for malicious prosecution. But that is a matter for another day. With limited resources I have to take one step at a time.

TR: What would you like to say my readers, your supporters at this time?

CG: Good question. This case, along with numerous other events at the local, state, and national level of politics, should send a warning signal to all Americans that something has gone very wrong in our legal and political system.

The law and political power are being used by those in offices of public trust - not for the public interest, but for the interest of those in office and a few who help them maintain that office.

We have a right, in America, to be treated like citizens rather than subjects. And we have an obligation, as citizens, to hold public agencies and officials to account.

In Florida we have some of the strongest tools, at the State level, to make this a reality. The Sunshine Laws of this state - including the three named above (the Ethics Law, the Public Records Law, and the Open Meetings Law) - are potentially effective tools if we choose to use them.

However, our general ignorance of these laws and our passive acceptance of authority have tended to erode them in practice. And now they are under attack - not only from the judiciary, but even from the legislature.

The time has come for us to bring the people back into American politics. And the best place to start is locally. It is where you have the most power. It is where you can be the most effective. And the tools do exist for this to happen here in Florida.

Furthermore, corruption does not begin in Washington D.C.. It is rooted in local politics. It is where it is learned. It is its foundation.

But it is also where you, the individual citizen, can effectively challenge it.

Think about it this way: If we cannot clean up and restore democracy to a small town like Alachua; what chance do we have for the nation? But - if we can fix Alachua (or any small town) then we have proven that we do have the power as individual citizens, that we can fight City Hall and win, and that we can restore democracy to America - even if we have to start off one city at a time.

Look at it this way as well - there is no better classroom to learn how to deal with our national problems than the local political arena.

And remember this: in a democracy - the highest office is that of a citizen.

You should never accept being treated as anything less - particularly by public officials (public servants).

You can fight City Hall. And one person can make a difference.

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