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The Case Of The 17-Year-Old Anti-War Protester

"Dismissed in the interest of justice," are words rarely uttered in our legal system. But in the case of People v. Gragert, New York City Criminal Court Judge Matthew Cooper ordered exactly that.

Alisa Gragert, a 17-year old senior at Friends Seminary was arrested during an April 7, 2003 demonstration against the war in Iraq. She was accused of blocking the "normal flow of pedestrian traffic," by laying down in front of 712 Fifth Avenue in Manhattan. The building houses the offices of the Carlyle Group, a major international investment firm, which antiwar protesters contended would profit from the war. According to the police, Gragert ignored an order to stand up when informed she was under arrest. She was charged with obstructing government administration, a class A misdemeanor, punishable by up to a year in jail and two counts of disorderly conduct, each punishable by a maximum of fifteen days. About a dozen other protestors were arrested for the same conduct, but the prosecutions were separated and Judge Cooper's decision deals only with Gragert.

Following her arraignment, the defendant was released on her own recognizance and ordered to return to court on June 11. When she appeared on that day with counsel she was told to return a month later, on July 25. The court entry, however, mistakenly read July 23, and when Gragert failed to appear on the 23rd, a warrant was issued for her arrest. When she and her mother walked into Criminal Court at 100 Centre Street on the correct day, she was considered a fugitive, taken into custody handcuffed and chained to a bench in open court. Once the error in the date was acknowledged Gragert was again released.

Prior to preparing for trial, Gragert's pro bono attorney, David M. Stern, of the firm of Rothman, Schneider, Soloway & Stern, submitted a 31 page motion asking Judge Cooper to dismiss the charges in the interest of justice without reaching the question of whether she was guilty or not. This procedure known as a Clayton motion based on a 30-year old New York case, People v. Clayton, is infrequently submitted to courts and even less often granted. However, according to the Criminal Procedure Law, a court may consider terminating a criminal case if the prosecution and possible conviction of the accused would "result in injustice."

Judge Cooper would have to consider the offense, the seriousness and circumstances, the extent of harm, evidence of guilt, the defendant's background, any police or prosecutorial misconduct, the purpose of punishing the defendant, how society would be affected by a dismissal and how dismissal would affect public confidence in the criminal justice system, input of any victim and "any other relevant fact indicating that...conviction would have no useful purpose."

He also had to distinguish Alisa Gragert's case from a 1996 case involving the arrest of 90 members of Irish Lesbian and Gay Organization (ILGO) protesting the annual St. Patrick's Day parade. In that case, a criminal court judge had dismissed disorderly conduct charges in the interests of justice but was reversed by the Appellate Term which hears appeals from Criminal Court and which ordered the charges reinstated. " Sincere beliefs are not an excuse for lawless conduct," the appellate court said. expressing concern that the conduct was "likely to keep recurring."

Still, Judge Cooper found that Gragert's case was one of those "rare" and "unusual" cases that "cries out for fundamental justice beyond the confines of conventional considerations." The judge cited the defendant's age, her lack of a criminal record and the fact that she was bound for college. (She now attends Oberlin College in Ohio.) Letters supporting dismissal were submitted by her high school principal and teachers, the coordinator of her volunteer work at the American Museum of Natural History, friends and neighbors. A United Nations advisor wrote "We have the deepest respect and admiration for the gifted students who exhibit a caring attitude toward their community and dare to dissent from its mainstream views when their concern for common good compels them to do so. Alisa is such a student and we need to encourage her to follow the dictates of her conscience." While the decision did not address the large number of teenagers in the criminal justice system in general, in pointing out Gragert's age, the judge emphasized that, "She is too young to vote in an election, drink alcoholic beverages, enlist in the armed forces, buy a laser pointer or a can of spray paint, marry without both parental and judicial consent, or enter into a legally binding contract."

Although according to Judge Cooper, Gragert's actions did constitute disorderly conduct, he found the harm of causing pedestrians to walk around her "decidedly minor," in contrast to the ILGO demonstration at Fifth Avenue and 42nd Street "which snarled traffic for an hour and a half."

"It is difficult to envision New Yorkers, renown for their ability to cope in the face of adversity, being particularly disturbed by encountering the defendant lying on the sidewalk and having to sidestep her," he wrote. "Impediments to the free flow of pedestrian traffic are a hallmark of city life. What with street vendors, people distributing leaflets, newspaper vending machines, food carts, coffee wagons, sidewalk eating, scaffolding, construction barriers, pavement excavations and groups of smokers in front of smoke-free buildings, one hardly expects to walk along a busy midtown street with an uninterrupted stride. In this instance, people may very well have been inconvenienced by the defendant's actions, but it could not have been that much more than the routine inconvenience we endure in this city on a regular basis."

In granting the motion, the judge concluded, "Unlike many nations, we pride ourselves on our willingness to hear the voices of dissent. Protest, in its many forms, has a hallowed place in our democracy and is very much a part of our American spirit. It is one of the great strengths of our society. And certainly our society is strong enough to recognize the mitigating circumstances present here and forego the prosecution of this young woman."

According to Barbara A. Thompson, spokeswoman for the Manhattan District Attorney, there will be no appeal.

Emily Jane Goodman is a New York State Supreme Court Justice.


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