When I walked into court Monday night, I heard the owner of the property at the end of Schumway Road, Todd Brown, who was apparently the main force behind this trespassing prosecution, saying to the police officer/prosecutor, “And if he took any photos back there, those images belong to Catskill Holdings LLC. I want that prosecuted too.” The two were going over a thick folder of evidence for the case: maps. Photos. Paperwork related to the closing of the road in 1970. I did not catch the other things. Only the photos and maps came up in the trial.
But this was certainly not a promising start. I had something of a hope that the case would be dismissed out of hand. After all, I had merely gone for a walk in the woods, far from any house, in an area marked by no signs, had done no damage, was apologetic at the time of the offense, etc. etc. This did not seem to be the kind of thing the government should take a great deal of interest in. But it appeared that this case would be prosecuted with real vigor. There were only four people in the courtroom: myself, the property owner, and two police officers, one of whom would be the prosecutor. This also was a bad sign: the entire court date had been cleared for this trial.
I had not spoken with anyone official regarding the case, and did not know certain key points. So when the judge entered and convened the court, I interrupted and asked to be informed of my rights. Did I have the right to a lawyer? Yes, she said, but not to one appointed by the court. Did I have the right to a jury trial? No I did not. What possible legal consequences did I face? A maximum fine of two hundred fifty dollars. And nothing else? Nothing else. “Then let’s begin,” I said. I would be representing myself.
The trial might have been officer Brandon Edward’s first as well as my first. When asked to make an opening statement, he introduced himself, gave his credentials, and so forth. The judge interrupted him and asked if he was giving testimony, as opposed to making a statement. He was not sure of the difference. So she said, “You’re giving your testimony. Fine. Raise your right hand.” She then swore him in and told him to begin again. He began reading his statement again. He had great difficulty reading it and was clearly not a public speaker. What is more, his giving of his resume – that he studied various types of law at the Police Academy, etc. – seemed an embarrassing waste of our time, and the fact that he could barely speak the words did no credit to his credentials. I wavered then between confidence that I could beat him in court, and exasperation and depression that this event was truly occurring in the universe.
The court format is not at all self-evident, and requires much practice and forethought to use adeptly. Under normal conditions, the police officer would tell the story to the judge, with help from the witness, and I would challenge certain bits at certain times; we might get into a heated dispute at a few points; then I would tell my tale from the beginning, with them interrupting and challenging. But the legal format required that I be silent except when cross-examining or presenting my case; and similarly for them. This is not easy. And in my own case, my thinking was muddled by nervousness, and a failure to anticipate things.
The prosecutor had not thought of how to present his evidence, and he quickly called up Todd Brown, his witness. The two of them went through a stack of photos of the road where I went for my walk. I was dumbfounded. The photos had been taken recently – summer foliage and all, not even resembling the time of the offense – and featured “no trespassing” signs, which had not been there when I went for my walk.
This really disturbed me. It was shameless and dishonest. It also meant that the case would come down to a contest of facts – and the judge would have to determine whose facts she wanted to believe.
When it came time for me to cross-examine him, I made him admit that he had taken the photos in August, not April, and pointed out that his photos hardly indicated the state of the property at the time of the offense. I then brought forward my own photos – which I had sagely come back two days after the arrest to take – which showed that the road was not signposted in the least.
He stated that the photo had been altered. I sputtered out a “What?” He repeated that the photo had been altered, using Photoshop or some other program. The accusation 
struck me as so shameless, again – of course I hadn’t altered the photo – that it utterly eclipsed my capacity to think at the time. I don’t even have Photoshop on my computer, nor do I have any capacity for altering photos. Of course I should have anticipated his accusation, but I confess that I am at times utterly unarmed against the shameless dishonesty of human beings. He also said that the sign on the gate on the road “mysteriously moved” on the very day of the offense – he knew, because he had checked it that very morning. Of course he had. What do you do with a person who will brazenly do such a thing under oath?
Not much else happened in that cross-examination. The police officer continued, now with his own testimony. He noted that I had walked around the barrier, shown in the photo. During cross-examination I tried to get him to approve of my photo. He said that it was four months ago and he didn’t quite remember the appearance of the road at that time. He also said that there was a sign at the end of the road, but “on the ground.”
When I got to make my case, I brought out the text of the statute, which states that a trespasser “knowingly enters or remains on a property.” I had cooperated with police who asked me to leave, so there was no question of remaining; as for the entry, I had not knowingly entered private property. I had been acting on local knowledge: a friend who goes snowmobiling there in winter; another who says that people go “hunting, fishing, and camping” back there “all the time.” And honestly, everyone I spoke with knows the road, knows where it comes out, knows its course, etc. – all information that could only come from walking it. And this was only confirmed when I arrived at the place and found it utterly unmarked as private property. I was back there – I did not deny it – but was not knowingly trespassing.
The cross-examination was without note – the officer noted again that I went around the barrier. I responded that there are similar barriers for trails all over the Catskills, indicating only that they are closed to vehicular traffic, not pedestrians.
We repeated ourselves for our closing arguments. The trial took an hour.
The verdict came swiftly. The judge noted that she did not agree with my understanding of the statute – you don’t need to have knowledge in order to knowingly enter. Instead, there is a legal standard for knowledge: on unimproved property, (and she referred to the statute-book) you must be told to leave by someone or the place must be “conspicuously posted.” She found that it was not conspicuously posted, and sent us all home. She seemed slightly peeved to have had her evening taken up this way. It is likely that if the police officer knew the law, he would not have prosecuted; and if I had known the law, I would have framed my defense more tightly. In any circumstance, it was a waste of everyone’s time.
After the verdict, I went up to Todd Brown. I was apologetic again – as I had been when I was arrested – saying that I did not mean any harm at the time, and I did not want to cause trouble in the least. He refused to look at me. He stood at a right angle to me, and looked off in the distance, saying, “These are three nights I could have spent with my son, that I’ll never have back.” Again, it was so shameless, and so clearly represented precisely the opposite of what he should be saying, that I couldn’t even think of the obvious to say in response: that he had taken his own time from himself, for no reason whatsoever, and taken it from everyone else as well – to present himself as a victim was the height of absurdity. And he could have handled it like a man, told me to get off his property himself, without running to the nanny state to solve his problems and make him feel important – and I would never have come back. Even then he at least could have looked me in the eye like a man. But I was dumbfounded, and could not say anything. I just left.
Needless to say, the whole thing indicates a major flaw in our system: that winning a case hardly feels like getting justice. If you are brought to trial at all, you are punished. To sit on the hot seat for an hour, representing yourself, knowing that you will have to explain this, if you lose, any time the question appears on a job application, “Have you ever been convicted of a crime?” – it is a form of suffering in itself, no doubt. So with large companies that can bring smaller competitors to court, knowing they will lose, but also knowing that the legal system constitutes a perfectly legal mode of harassment. Merely to be dragged to court is to have lost, in some sense.
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