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1/ yesterday's hearing in the cville monuments case was just to set dates & address the issue of the tarps. it lasted more than 4 hours and no decision was made. somehow i still managed to take 26 pages of notes. despite the lack of any outcome at all, some interesting tidbits...
2/ at issue were a few key points:
what is 'temporary'?
what is 'mourning'?
how and how long can a city mourn?
strangely philosophical questions argued by a city attorney and the agents of the daughters of the confederacy in a court of law.
3/ they set a date for the demurrer feb 27 @ 10am & for the plea in bar april 11 @ 9am. the judge will read his decision on yesterday's hearing on the feb 27 date.
they set TWO tentative trial dates -- oct 26 if they can do it in 1 day, jan 31/feb1, 2019 if it's going to take 2.
4/ both parties agreed there would be no need to empanel a jury for any of these dates -- regardless of the date, it'll be a bench trial. plaintiff's counsel had concerns that they'd need more time for discovery, but the judge was certain 10 months, at least, would be plenty.
5/ the judge did caution (to chambers at large - there was an audience) that the trial dates are both during a period of courthouse construction. he didn't name the alternate venue, but warned that it would be smaller and inconvenient. could be an issue for courtwatch.
6/ after an actual half an hour of scheduling, they got to business. kind of. there was an incredible amount of confusion as to the actual business before the court. at least a dozen times they broke down into disagreement about what was even being heard.
7/ the crux of plaintiff's argument, when they could stay on track, was that the city used mourning as a 'pretext' for shrouding the monuments and never had any intention of it being temporary. they cited the lack of end date (which the judge really found meaningful) often.
8/ gonna try to keep this just to the pertinent bits, i swear, but there were strange tangents. there was a FORTY MINUTE argument that took place over an objection, with the witness (one of the plaintiffs, jock yellott) sitting silently in the box waiting for it to be ruled on.
9/ the strangest thing i have ever seen in court, up to & including elmer woodard, was their "expert witness," a local funeral director. he was allegedly testifying as an expert in mourning practices. no shit. this dweeb who buries people's dead relatives knows how a city mourns?
10/ the witness, a funeral director, ordained minister in the church of christ, was allowed to testify as an expert in *individual* mourning, but at the city's objection the judge sort of splits the baby - he'll hear the testimony, but doesn't agree he's an expert on public grief
11/ listing his qualifications, he claims to have overseen 2 jewish burials, mostly deals with protestant dead. city pushes: "have you written any scholarly publications about mourning practices? have you assisted any community orgs with with post traumatic processing?" (no, no)
12/ plaintiff:"are you familiar with the public mourning practices that prevail in the commonwealth of virginia?" he spouts a wikipedia level summary of some major faiths' public funerary rituals, including 7 day shiva & a 40 day orthodox ritual he can't remember the name of
13/ "are you aware of any public mourning practice that involves placing tarpaulins over public monuments?"
the way plaintiff's counsel pronounces tarpaulins is criminal - tar-PAW-lihns. about halfway through the hearing he shifts to referring to them only as 'trash bags.'
14/ witness cites common practice of police & fire depts. to place black bunting (which counsel pronounces "bunny") over the front of the truck/tape over badges for a fallen officer, as well as lowering the flag (specifically for 10 days after 9/11)
15/ ed. note: lowering the flag was NOT the only 'public mourning' we did for 9/11. we spent years building a $700mil+ memorial. we entered a permanent war. it's labeled on calendars. this is a shitty comparison being made in bad faith and it's fucking gross.
16/ he's asked to give specific time periods for all these public expressions of mourning. 7 days for shiva, 40 days from burial for orthodox christians, tape over the shield for 30 days, lowered flag for 10... the idea is that mourning has a specific, defined timeline. always.
17/ before city crosses, the judge rules all testimony to specific religious practices inadmissible. "i don't think that's parallel with a municipality" & not relevant to the actions taken by city council. he allows the rest of it. (note: he allowed it to be cited in p's closing)
18/ city asks how he knows about PD/FD mourning practices. witness admits he's never been personally involved in any burial for a FF or cop (ed: so how is this within his purview as an *expert* witness if it's just his general knowledge unrelated to his expertise?)
19/ c: does the fire dept have city council's permission to mourn this way? is it an expression of public mourning?
W: the first action is always to consult the family.
C: so it is an accomodation to private concerns of the family? do you know any family of the victims of A12?
20/ (he doesn't)
lisa robertson took over this case from departing city atty brown recently. she lost her footing a few times during the hearing, but i thought she deserves props for that line of questioning -- this public/private distinction is critical & didn't get its due
21/ city asks if, in his experience, anniversaries of deaths are difficult for families. he agrees. city pursues, at various points, the idea that they want to keep the tarps on through the anniv of A12. it's unclear if they intend to unveil the statues ON the anniversary?!
22/ the witness specifically states, though, that anniversaries are difficult for FAMILIES, not communities. plaintiff's counsel says we didn't mourn 9/11 again in 2002, 2003 "the entire process didn't just GO ON..." (what world does he live in?)
23/ plaintiff's next witness is jock yellott, one of the named plaintiffs and the executive director of the monument fund. the judge has to rule that walking his dog in the park doesn't make him an expert witness on the park. that's where we are with this show.
24/ to be fair, he's walked "a series of dogs" in that park over the past 30 years. "when he is in town" he lives nearby on e market st (unclear how often that is). counsel asks if he's "familiar with the people" who use the park. he waxes poetic about school groups, weddings...
25/ he laments that, as an amateur tour guide himself, he's been reduced to simply DESCRIBING these incredible works of art to visitors. the city objects, plaintiff argues this goes to its relevance to "public enjoyment," which city argues isn't defined in the statute.
26/ remember, while the monument law about not interfering with war memorials is central TO THIS CASE, it is NOT what is being heard at this particular hearing. the issue here is whether or not the "temporary" tarps are in fact temporary. this is about time, not the statute.
27/ here begins our 40 minute objection. no one is sure whether they are even arguing a new temp injunction or an enlargement of the existing one (city believes it's an enlargement, judge sees it as a new temp injunction, plaintiff seems to be seeking something else altogether)
28/ they also debate the meaning of the word 'temporary' - judge tells us for a tarp to be temporary, it must have a fixed lifespan. for an injunction to be temporary, it lasts for the indefinite life of the case. plaintiff argues that the trial is far off, that isn't "temporary"
29/ we heard wise things like: "what's what statues are FOR" (looking at) and "if it's totally covered, you can't look at it." the city at one point claims the judge doesn't even have jurisdiction to HEAR the current matter as the tarps weren't included in the amended complaint
30/ claiming the city intentionally misled the court about the tarps, plaintiff's counsel says "this is not unlike, you tell a child they can't cross the street & play so they go out in the middle of the street & play." well that's just a little patronizing.
31/ judge does say that he believes rendering the statue unviewable is tantamount to removal (which is statutorily prohibited). again, NOT at issue in this hearing, but if that's how he feels, at the end of the day, that's gonna be his decision... we'll see those tarps off soon.
32/ judge eventually overrules the objection & will hear jock's testimony that he likes the park 🙄 but calls for a 10 min recess first. during the (15 min) recess, i overhear two city employees discussing the practical concerns of removing the tarps & fencing around the statue
33/ after the recess, jock testifies that the jackson statue is "one of the best equestrian statues in the world," but the judge rules this is "unnecessarily duplicative" and he's not allowed to testify about how much he likes the park anymore.
34/ counsel tries to have jock testify to the proceedings of the board of architectural review, of which he is not a member. city objects, he is allowed to testify to his PERSONAL KNOWLEDGE of reading the meeting agendas online, but not as an expert on city code.
35/ city: "the court should hear the law, not mr yellott's impression of the law." the judge partially agrees -- they can enter the city code into evidence if they want, but jock's testimony will be heard as his personal knowledge, not as fact
36/ city manager maurice jones is called by the plaintiff. lots of questions about how the tarps were selected, how many times have they been removed, what are procedures for replacing it, who decided to put up the orange fencing? (jones did, without input from council)
37/ stepping back to something i skipped from opening statements... plaintiff wants to introduce the video & transcript from aug 21's council meeting into evidence. city maintains that the *minutes* are the legal record according to the law and object to this.
38/ plaintiff specifically wants the judge to consider the words used by council members as they worked to craft the motion they voted on, argues this speaks to motive & their alleged intentional lie re: the 'temporary' nature of the shrouds.
39/ city cites blankenship v. city of richmond (1948) and carnes v. BOS chesterfield county (1996) -- minutes of a board meeting are excluded from evidence & court may consider wording of the motion & recorded votes only; individual motives of councilors are irrelevant
40/ the judge takes exception to this - he notes that he *explicitly* considered motive in allowing the tarps; stated intent of 'mourning' was sufficient for him to rule it didn't 'interfere' under the statute. if he couldn't consider that then his own ruling would be invalid.
41/ plaintiff is allowed to submit a thumb drive of the aug 21 meeting video to the judge, but it is *NOT* yet admitted as evidence. he'll consider the cited caselaw and determine whether or not to watch. city says reading plaintiff's prepared transcript would NOT be acceptable
42/ back to jones though, counsel is clearly trying to get around this issue by asking him, specifically, about the tone & content of the aug 21 meeting. the city objects, but the judge tentatively allows it to continue.
43/ when crossed by the city, jones testifies that the room was "tense" and "there was a lot of sadness" on A21. serious understatement, maurice. city atty asks him, "what was being mourned?" he starts to answer, but plaintiff objects, unclear on what grounds.
44/ interestingly, here the judge seems to be advising city atty that if she pursues this, she's opening up admissibility of the content of the meeting? she starts to withdraw, then presses on. (the exact negotiation going on here was unclear to me, but he was cautioning her)
45/ in addition to the loss of life, jones says the city was mourning the trauma, events of the whole summer. asked if HE feels mourning, too, but plaintiff interjects (without actually objecting). some ensuing argument about whether or not his feelings are 'a factual matter'
46/ judge shuts down city's line of questioning about the timeline for the pending RFP for the park redesign. on redirect, plaintiff asks if jones recalls a timeline for the shrouds being mentioned on A21. city's ongoing objection is noted.
47/ plaintiff references the meeting transcript when questioning jones - the transcript not entered into evidence. he asks specifically about a statement made by kathy galvin, asks him to explain what she meant when she said shrouding is a standard mourning practice.
48/ plaintiff's final witness, lewis ashby martin III, is quickly dismissed - he testifies that he loves the statues. "i appreciated those monuments since i was a little boy!" recounts his childlike wonder at their fine quality & construction. sure, dude.
49/ city: "i don't believe any of this is leading to a relevant question."
judge: "i don't think calling another witness to say 'i looked at it and they* didn't do that*' is appropriate." (*city/remove the tarp)
plaintiff has obviously forgotten the scope of this hearing. again.
50/ plaintiff's closing was masterful
"clearly judge, these monuments have a purpose. they were meant to be monuments"
"that's why we have monuments - we have 'em to see 'em. they remind us of things"
"if i can't see the monuments, i can't enjoy *MY RIGHT* to see them"
51/ "they are preventing me from enjoying these monuments and this is as damaging as i can think of."
he cites the religious testimony of his expert witness (that the judge ruled inadmissible) and the nov. resolution the judge wouldn't allow the city to question jones about.
52/ he returns to his previous argument about legislative immunity being inapplicable here (which the judge has already dismissed as irrelevant). he says, many times, "they need to come off. they need to come off NOW" and is a little worked up by the end.
53/ judge: "it doesn't really matter to the court if it was *customary* or if it's what's usually done." "we've never really had a situation quite like this." again, the issue is of DURATION and the nature of what is "temporary," not what is normally done.
54/ city: "like it or not, these statues were a central focus of the people who descended on the city that day" - i wish there'd been ANY discussion of the fact that we're not just mourning. these statues are fucking LIGHTNING RODS. the day these tarps come down, they'll be there
55/ city tries to argue that the city is already working on a plan for after the tarps, judge says the use of "replacement" in language about removal of tarps in nov resolution undermines her argument that this is temporary.
ultimately, he's stuck on the lack of end date.
56/ judge needs to read the cases cited and decide whether or not he's going to watch the video
judge: "it's not up to me to decide" HOW long the mourning period is, only whether or not the period defined constitutes 'temporary'
he'll issue his decision at the feb 27 hearing
57/ honestly, expect the tarps to come down. he's already made up his mind that those statues aren't going anywhere & in his words "covering them is tantamount to removal"
this is gonna drag out in court until feb 1, 2019 (or longer), but we seem to be stuck with those eyesores
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