Gail Fry | VOICE Contributor
The IE Voice/ and Black Voice News was there at the conclusion of a trial last month when an all-white jury found Black Lives Matter Inland Empire Chapter Member Donavan Caver guilty of vandalism.
Caver was charged with vandalism for spraying the letters “FTP” in chalk on a planter wall outside the San Bernardino Superior Courthouse in downtown San Bernardino to protest the arrest of his fellow protesters on July 31, 2020.
As previously reported by the IE Voice and Black Voice News, on August 10, 2020, five Black Lives Matter (BLM) Inland Empire (IE) Chapter Members and seven fellow citizens protesting the arrest, and prosecution of 29-year-old Lawrence Bender, were arrested on the San Bernardino Superior Court grounds in the City of San Bernardino as they protested Bender’s arrest.
On June 29, 2019, Rialto Police Officer Michael Babineaux, while finishing up with the towing of a vehicle in a separate police incident, alleged Bender attempted to enter the tow vehicle. During the encounter, Babineaux shot Bender twice. On October 9, 2020, Bender pled guilty to resisting an officer and was sentenced to 364 days in county jail.
A surprise change of venue
Caver, who protested the treatment and prosecution of Bender, was surprised when on the morning of July 27, his criminal trial was suddenly transferred to the Joshua Tree Courthouse from the San Bernardino Justice Center, allegedly due to the number of criminal murder cases congesting the courts in the City of San Bernardino and surrounding communities.
At the Joshua Tree Courthouse, Superior Court Judge Kory Matthewson was assigned to preside over Caver’s jury trial after an all-white jury was seated, after the first judge assigned, Rodney Cortez, questioned the assignment as he was scheduled for vacation.
San Bernardino County Deputy District Attorney (DDA) Alfredo Tigerino told the jury that Caver’s actions were intentional in shaking the can of spray chalk, that Caver admitted to spraying the letters “ftp” onto the planter wall, and that Carver fled because he knew he was guilty.
Asking the jury to find Caver guilty, Tigerino explained that the crime of vandalism does not require that the damage be permanent and that just because the planter wall could be cleaned does not erase the crime.
But in his closing arguments, Caver’s attorney Peter Schlueter highlighted his client’s testimony that he consciously chose to use washable chalk, and that under the DDA’s interpretation of the law, a 12-year-old drawing a flower on the sidewalk would be committing vandalism. He alleged that it appeared the prosecution’s motive to pursue criminal charges against Caver was that the chalk was affixed on the court’s property and not any other property.
Schlueter further argued that Caver’s use of chalk showed he was not being malicious but raising his voice, that he sprayed the chalk on the planter wall in front of a uniformed deputy sitting in a marked vehicle by the curb, while at least 30 deputies were nearby, and that Caver did not flee. Caver remained on the court grounds for about 20 minutes, after which he walked down the street to Schlueter’s law office while being tracked by a San Bernardino County Sheriff helicopter.
Instructing the all-white jury, Judge Matthewson said the damage did not need to be permanent, asking them to decide whether or not the elements of the crime of vandalism were met, whether Caver’s actions were malicious, whether Caver had defaced public property with graffiti, and whether Caver fled from the scene, implying guilt.
“The whole case comes down to malicious intent and the district attorney says that malicious intent is just the intent to write, and I argue that malicious intent means malicious intent,” Schlueter told Black Voice News and the IE Voice while the jury deliberated.
As a result of the DDA’s definition, Schlueter said the court did not allow him to defend his client by getting into his intent or the issues of protest or first amendment.
“Now the jury has it and the jury has two inconsistent statements of what the law is on malicious intent, and the court prevented us from talking about basically my client’s intent,” he said.
It did not take long for the jury to announce it had reached a verdict in the matter. Judge Matthewson then announced the guilty verdict reached by the jury and imposed a sentence of 30-days of community service, with eight hours spent removing graffiti, a fine of $265.20, and one year of informal probation.
In response to questions by Black Voice News and the IE Voice about the composition of the jury pool in Joshua Tree, San Bernardino County District Attorney Public Affairs Officer Jacquelyn Rodriguez explained that the defendant and his attorney had the right to object to the jury composition at any time, but they made no objections and accepted the jury panel.
Rodriguez said the Commissioner of San Bernardino County handles matters involving juries and that questions should be directed to that office.
Besides Caver, BLM IE Chapter members, Broderick Dunlap, Yoselin Saucedo, Brian Licea and Avery Garey, Jr. were arrested on the day of the protest. The sixth person arrested, Jaydee Lopez, was not a member of the BLM IE Chapter and was arrested on August 28, 2020.
Dunlap, Saucedo, and Licea were charged with trespassing, obstructing/resisting a public officer, trespassing/obstructing the business of a public agency, and picketing the courthouse to impede justice. Garey, Jr. was charged with trespassing, obstructing/resisting a public officer, and trespassing/obstructing the business of a public agency, all misdemeanors.
Lopez was charged with five misdemeanors for resisting arrest, battery on a peace officer and picketing at the courthouse to impede justice.
Caver claimed the other protesters arrested at the protest were not criminally charged – only BLM IE Chapter members faced criminal charges and he was the only person charged with vandalism over chalk, when at a prior protest others used washable markers and were not arrested.
Attorney Schlueter termed the order as not valid and questioned why no one was arrested for violating the order. Research by the Black Voice News referred to the California Rules of Court, Rule 10.603, which describes the authority of the presiding judge.
“I’m not sure the rule precludes a presiding judge from issuing a general order regulating the public’s conduct in the courthouse or on or near courthouse grounds,” First Amendment Coalition Legal Director David Loy opined while expressing concerns about the court’s prohibiting of “counseling” or “education” as potentially violating the First Amendment of the Constitution.
“Apart from the rule’s language providing for authority to promote fair & equitable access to justice, which arguably encompasses the general order, ‘courts have fundamental inherent equity, supervisory, and administrative powers,’” Loy concluded adding, “I’d be surprised if a court found the general order exceeds the court’s inherent power to manage its premises unless it conflicts with a specific statute or rule.”
Those who were charged
According to San Bernardino Superior Court records, before their arrests Caver had one traffic ticket while Dunlap had two. Licea had one misdemeanor from nine years ago and two traffic tickets, while Garey, Jr., Saucedo, and Lopez had no criminal records.
At a November 2, 2020, jury trial, Lopez, represented by Attorney Schlueter, was found not guilty.
Dunlop and Saucedo, both represented by Schlueter, and Licea, represented by Attorney Karin Aida Khachatorian, will face a trial recall hearing on September 27, 2022 at the San Bernardino Justice Center.
In his criminal case, Garey, Jr. is represented by a member of the conflict panel of attorneys, a panel created by the County of San Bernardino to represent those defendants whose case conflicts with the public defender’s office.
There is no scheduled hearing date for his case. He had failed to appear at the February 14 hearing. “I think he is afraid to appear,” Attorney Schlueter said.
As noted, prior to his arrest, Garey had no criminal record, not even a traffic ticket.
In Caver’s case, Rodriguez said the trial needed to be commenced by July 27, 2022. The last day for trial was set by the defendant’s counsel when Caver withdrew his general time waiver. Like many other cases, Rodriguez explained, it was subject to be assigned to available courtrooms throughout the county.
Caver, who did not have a criminal record, objected to the fact that no plea agreement was offered until right before trial and only after a judge inquired. But Rodriguez said that plea negotiations occur before the start of trial as with all other criminal prosecutions.
“While some cases are more complex than others, our community expects and deserves serious consideration for each case by the Office of the District Attorney,” he said in response to questions about the use of time and resources of the district attorney’s office for a misdemeanor vandalism case. “In San Bernardino County, the rule of law and the defendants’ 6th Amendment right to a speedy and public jury trial with a guaranteed right to an attorney is priceless.”
In an interview with Black Voice News and the IE Voice, Carver explained that BLM IE Chapter decided to protest on July 31, 2020, after members of criminal defendant Bender’s family and his supporters were excluded from the courtroom during his trial allegedly due to COVID restrictions.
Caver said the letters “FTP” stood for “free the people” or “free the protesters” or “fight the power.” He got caught up in watching his friends peacefully protesting only to then be unlawfully arrested, and reacted by spraying the letters “ftp” on a planter wall in protest, Schlueter explained.
“FTP” came from the 1989 Spike Lee movie “Do the Right Thing” where Public Enemy’s song “Fight the Power,” was the opening theme song, featuring an unforgettable dance routine performed by Rosie Perez. Link: https://www.youtube.com/watch?v=rrkfJ-HsPfA.
“That song somewhat became the anthem for the Black Rights Movement,” Schlueter explained. “The police thought “ftp” meant #&*k the police and wrote that in their reports.”
He said when Caver was arrested in front of his office, he heard Caver repeatedly say to the officers, “It’s chalk, it’s chalk.”
An earlier version of this story incorrectly stated that Donovan Carter admitted to spraying the letters “ftp” onto the planter wall and fled because he knew he was guilty. He did not. That statement was made to the jury by San Bernardino County Deputy District Attorney (DDA) Alfredo Tigerino.