Good NewsOn 09/14/2010, I received an email from my lawyer regarding the hearing that had been held on 09/08/2010. It included this page from Judge John Payne, indicating that he was allowing my motion to dismiss the criminal charges. (It is totally illegible but trust me; that is what it says.) The charges of disorderly conduct and unlawful wiretapping have been dismissed. The judge did not dismiss the traffic ticket. However, the traffic ticket was dismissed at a hearing on 10/05/2010 before a magistrate.
Bad NewsThere are several caveats to this good news. The district attorney's office is holding on to the possibility of appealing. It has thirty days from when the decision was issued in which to file for an appeal. That means that the appeal period will expire on 10/14/2010. The district attorney's office will not give me my camera back until the appeal period expires. Most important, this is not the end of the story. There is nothing to stop Mitchell Kuc from stopping, arresting, or charging me again. I managed to climb out of the pit but he can easily just throw me back in. So I am free-er but not entirely free. I still need to do something to secure my rights and impose consequences to those who violated those rights.
EvidenceThe prosecutor's evidence consisted of Mitchell Kuc's reports, my camera, including the footage it contained, and video footage that Mitchell Kuc recorded on his cell phone (00:25 - 2.6MB).
I have transcribed the very sloppily photocopied reports of 09/12/2009 and 03/20/2010 for easier reading and searching. I have about an hour of footage. I apologize for the atrocious camera work. I did not have the camera for very long and was still developing my technique. I selected the last twenty minutes to share and I cut that into four segments for efficient downloading.
- 03:00 (18.3MB) - Prelude to the stop, in which I sing "I Love Rock 'n' Roll", by Joan Jett and the Blackhearts, and in which I deftly steer clear of a drive-out collision hazard by means of an assertive lane position.
- 01:15 (7.3MB) - Initial dialogue, in which me and Mitchell Kuc exchange information.
- 12:29 (74.8MB) - Interlude, in which I wait and in which Sergeant Mason arrives, talks with Mitchell Kuc, and leaves.
- 03:11 (19.5MB) - Follow-up dialogue, in which Mitchell Kuc accuses me wiretapping and seizes my camera.
- 19:59 (120.4MB) - All four segments together.
- The police officers who I referred to as Officer II and Officer III in The Third Hadley Encounter: Relapse are apparently both the same police officer named Sergeant Mason.
- In his report of 03/20/2010, Mitchell Kuc claims that he recorded a twenty-five second video clip from his car. However, the prosecutor initially told my lawyer that no such video clip existed and that Hadley patrol cars were not equipped with cameras. Later, while my lawyer was preparing a motion for the court to order the prosecutor to present this footage, the prosecutor admitted that Mitchell Kuc had recorded a video clip using his cell phone and he presented the footage to my lawyer.
- In his report of 03/20/2010, Mitchell Kuc claims that traffic was heavy. My footage clearly shows that traffic was exceptionally light, not that this is relevant to the charges against me.
- In his report of 03/20/2010, Mitchell Kuc claims that other drivers were overtaking me on my right side. My footage shows no such incidents, not that this is relevant to the charges against me.
- In his reports of 03/20/2010 and 09/12/2009, Mitchell Kuc admits that he knew it was legal for me to position myself in the middle of a lane.
- In his report of 03/20/2010, Mitchell Kuc claims that I attacked Eric Perkins on 03/30/2007. In fact, Eric Perkins attacked me; I never touched him. Adam Bartlett arrived in response to my call for help. Eric Perkins did report to the Amherst police that I had grabbed his shirt, but this claim is absolutely false, not to mention irrelevant to this case and inflammatory. I describe this incident in my blog entry My Encounter with Eric Perkins and Adam Bartlett.
- In his report of 09/12/2009, Mitchell Kuc claims that vehicles were traveling slowly behind me. This claim is false. In fact, there was plenty of space to my left in which drivers could safely overtake me, and drivers who approached me did overtake me in this space.
- In his report of 08/22/2009, Mitchell Kuc claims that I was cycling in the middle of the road. This claim is false. I was cycling in the outer westbound lane.
- Neither my footage nor Mitchell Kuc's reports or footage indicate any hazardous conditions, except for Mitchell Kuc's bare assertion in his reports that a hazardous condition was present. The footage shows a calm, orderly road. It also shows me driving in n completely orderly and predictable manner, in accordance with all traffic laws and well established principles of safe cycling.
- My footage shows Mitchell Kuc notice the camera on my helmet. The footage also shows me freely admit that the device is a video camera and that it is recording his voice.
- My footage shows me asking Mitchell Kuc for a receipt for my camera and Mitchell Kuc refusing to give me a receipt.
- The footage shows that when referring to the wiretapping statute, Mitchell Kuc uses the key word "secretly". From this I infer that he IS familiar with the statute, so his bogus accusation of wiretapping comes not from willful ignorance and imagination, but from a deliberate contortion of the meaning of the word "secretly" in the statute.
- The footage shows Mitchell Kuc criticizing me for not moving to the right when other drivers approach me from behind. In fact, no driver of a vehicle is expected to move to the right when another driver approaches them from behind, except under special circumstances. Drivers are expected to watch the road ahead of them and yield to drivers ahead of them, and should not put much effort into looking behind them, except when preparing to turn or move laterally.
- A good teaching moment occurs shortly before the stop. A motorist pulls out of a gas station in front of me without yielding. The motorist does not pull out so close in front of me as to constitute a great danger, but I did have to apply my brakes (and stop singing). This type of situation is one of many reasons why it important for cyclists to stay away from the edge of the road. Because of my position, I was able to notice the car in front of me early and respond to it quickly, and I had room to maneuver in case there had been a great danger. If I had been near the edge of the road, my lines of sight and maneuvering room would have been extremely poor. I would also have been on less clean asphalt so my braking power and braking control would have been poor as well. I would also have been much less noticeable to the motorist, who might have pulled out right in front of me or right into me, rather than just a little closer than comfortable. This type of collision is one of the most common types of cyclist-motorist collision, called a "drive-out" collision.
ArgumentsAfter some discussion and research, my lawyer told me that he would make the following arguments.
- The traffic ticket is invalid and Mitchell Kuc had no legitimate reason for stopping me. The evidence was collected by means of an illegal stop so it should be suppressed. Without this evidence there is no basis for the criminal charges so they should be dismissed.
- Mitchell Kuc's report is inconsistent internally and externally. It does not constitute reliable evidence so it should be suppressed. Without this evidence there is no basis for the criminal charges so they should be dismissed. (This argument could not be made in writing since it relied on a cross-examination of Mitchell Kuc. I was very much looking forward to this cross-examination. It would have been my first opportunity to get some answers out of Mitchell Kuc.)
- Neither the footage nor Mitchell Kuc's reports shows any evidence of a hazardous condition. There is no basis for the disorderly conduct charge so it should be dismissed.
- My driving behavior did serve the purpose of safe and efficient travel on a public road, which is a legitimate purpose. There is no basis for the disorderly conduct charge so it should be dismissed.
- My driving behavior was an exercise of a legal right, which is automatically considered to be a legitimate purpose. There is no basis for the disorderly conduct charge so it should be dismissed.
- My recording was clearly not performed secretly. There is no basis for the unlawful wiretapping charge so it should be dismissed. (My lawyer told me that this argument could not be made at the upcoming hearing. It could only be made at a subsequent hearing if the wiretapping charge was not dismissed after this one. However, this assertion turned out to be false. When my lawyer did not mention the wiretapping charge, the judge specifically asked him about it.)
- MOTION TO DISMISS
- MOTION TO SUPPRESS
- MEMORANDUM IN SUPPORT OF ELI DAMON'S MOTION TO DISMISS
- MEMORANDUM IN SUPPORT OF ELI DAMON'S MOTION TO SUPPRESS
- Commonwealth v. A Juvenile, 368 Mass 580, 586 (1975)
- Commonwealth v. Feigenbaum, 404 Mass 471, 475 (1989)
- Commonwealth v. Censullo, 40 Mass.App.Ct. 65, 6669 (1996)
- United States v. Miller, 146 F.3d 274 (5th Cir. 1998)
- Commonwealth v. Zettel, 46 Mass.App.Ct. 471, 476 (1999)
- United States v. King, 244 F.3d 736, 740 741 (9th Cir. 2001)
- Commonwealth v. DiBennadetto, 436 Mass. 310, 315 (2002)
- United States v. Chanthasouxat, 342 F.3d 1271, 12771280 (11th Cir. 2003)
- Commonwealth v. Weston W., 455 Mass 24, 3033 (2009)
- Commonwealth v. Rivas, 77 Mass.App.Ct. 210, 217 (2010)
- Alegata v. Commonwealth, 353 Mass. 287, 304 (1967)
- Commonwealth v. Hyde, 434 Mass. 594, 605 n.12 (2001)
- Commonwealth v. Glik (2008)
HearingsThe motion hearing was a train wreck. My lawyer acted totally confused. He did not raise most of the points that he needed to. When cross-examining Mitchell Kuc, he hinted at some points as if he was leading up to them but he never actually arrived at them. He had no response to the prosecutor's objections. The judge asked him several times where his questions were leading and what his point was. He kept repeating himself. Mitchell Kuc and the prosecutor walked all over him and both me and my lawyer ended up look pathetic. The audience had pained looks throughout. The bailiff was laughing under his breath. It was humiliating, not to mention extremely disheartening.
The traffic ticket hearing was attended by Officer Mark Shlosser, representing the town of Hadley. Mitchell Kuc did not attend.The magistrate dismissed the ticket when Mark Shlosser said that he did not have my case file with him. I am fairly confident that this was not an accident.
AfterwardsAfter the motion hearing, I confronted my lawyer over the phone about his performance. He had the gall to assert that it had not been so bad. It was like he had been at an entirely different hearing than me.
I was certain that the judge would deny my motions. The next week was very painful. I felt quite hopeless. I was shocked when I found out that the judge had granted the motions. It took days for my intuition to catch up with my intellect in realizing that the charges had really been dismissed.
The dismissal was an enormous relief. But as I said before, I still must decide what to do next regarding this issue, as well as my life in general. These decisions are difficult. Information and ideas seem to be scarce and no option appears promising at this point. I am working on it.