nature on trial:  fighting for freedom of choice in landscaping
Trial Story
by jcr13Monday, December 19, 2005 [5:22 pm]

My trial was on December 15, 2005. Now that a few days have passed, I feel compelled to document my memory of it before I forget some of the finer details.

First of all, it was an experience of a lifetime. The trial lasted over three hours (from 10:30am until after 1:30pm) and the arguments were somewhat subtle and complex.

I arrived at the court shortly after 8am to watch the trials that were scheduled before mine. Unfortunately, nothing all that interesting happened in the court before my trial. There were a few noise ordinance defendants waiting in the court when I got there, but the charges against them were dropped before they ever went to trial.

There was a trial scheduled at 10am for a fence that was constructed without a permit. That trial actually proceeded. However, the defendant was not at all familiar with court procedures, so it was not a very interesting show. He did not call a single witness nor present a single piece of evidence. He was even reluctant to testify himself, but finally took the stand after some coaxing from the judge.

After I was arraigned in August, I contacted the court and asked about upcoming trials. I had hoped to watch a few trials before going to trial myself so that I could observe some of the court customs and procedures. Watching one lame-duck trial one-half hour before my own trial was not exactly what I had in mind, though it was certainly better than nothing. At least I got to see where the prosecuting attorney stood and how he addressed the judge.

The judge was Thomas Wheeler, and elected official in our Village. Ironically, I ran for the position of Village Justice in the 2004 election against him. He won, of course, but now I was standing trial before my former opponent.

Right before my trial, the court room began filling up with spectators. Two news reporters (Robert Snow from the <EM>Potsdam-Massena Courier-Observer</EM> and Dave Winters of the <EM>Watertown Daily Times</EM>) were present for the entire 3-hour trial. Eight other spectators, all my friends or family, were also present (though some left before the end of the trial).

When it came time for my trial, the prosecution waived their right to an opening statement, so I gave my statement. I explained that the testimony and evidence would show that the mowing ordinance violated the equal protection and free speech clauses of the U.S. and New York constitutions. During my statement, I handed the judge a copy of my memorandum of law.

After my statement, the prosecution (lead by Peter Lekki, the Village attorney) called their first and only witness: Code Enforcement Officer John Hill. During direct examination, Officer Hill talked about how he noticed that our property was in violation of the mowing ordinance (on his own---he never received any complaints from our neighbors).

I then cross-examined Officer Hill and brought out some points about the law itself, as well as bits of Hill's history with other natural landscapes in our area. During this cross-examination, I had the original notice that Hill served us in 2004 admitted into evidence.

Since the prosecution called no further witnesses, it was my turn to present my defense.

I first called myself as a witness. I testified about our intentions of natural landscaping on our property, about the signs we posted, and about the statement that we were trying to make. One of our signs was admitted into evidence. I then prepared to present a 22-photograph survey that I had taken of nearby properties against which the Village was not enforcing the ordinance. The judge sent the court into recess while I set up my equipment.

I then presented my photographs along with my live testimony to narrate them. The photographs focused on four properties, all within a half mile from our house, and all in the Village limits, that had grass in violation of the mowing ordinance. I complained to Village officials about these properties in 2004 and 2005, but they never did anything about them.

When my "direct" testimony was finished, the prosecution got to cross-examine me. Mr. Lekki tried to show that my landscaping was not intentional cultivation. Once it became clear that I was actively cultivating my landscape, he tried to show that my activities were not very natural. He asked me if I was aware that some of the properties shown in my photo survey had been hayed off (harvested for hay) in the recent past. I told him that as far as I knew, this was not the case.

After I was cross-examined, I called Richard Grover as an expert witness. He was perhaps the strongest feature of my defense. His testimony established that landscaping was an art form, a form of expression, and that it could be used to communicate with others. He also testified about the environmental impacts of traditional landscaping and the environmental benefits of natural landscaping. He also indicated that the mowing ordinance was unreasonable to enforce against people who were trying to cultivate meadows.

During the cross-examination, Mr. Lekki tried to get Mr. Grover to agree that local laws should always be obeyed. Mr. Grover disagreed, saying that there were some laws on the books that were unreasonable, and sometimes alternatives (such as natural landscaping) need to be demonstrated to challenge the laws. There was also quite a bit of squabbling during Mr. Grover's cross-examination over the exact situations in which a 10-inch rule would be reasonable.

Toward the end of Mr. Grover's cross-examination, the prosecution tried to introduce a piece of surprise evidence: a complaint letter submitted of Officer Hill in September of 2005 about a possible visual obstruction created by our landscaping. I had never heard from any Village official that such a complaint had been received. Officer Hill was brought back to the stand by the prosecution to provide foundation testimony about the letter.

I objected to the letter because the prosecution never disclosed its existence to me before the trial (surprise evidence is forbidden by law) and because the letter was hearsay (out-of-court statements being accepted for their truth). Mr. Lekki argued that the letter was a business document (one of several exceptions to the hearsay rule). However, the judge still threw the letter out of evidence. This was a big triumph for me, especially since I am not a lawyer.

At that point, I ask the judge for permission to re-cross-examine Officer Hill in light of this new issue being raised. The judge told me that I could call Officer Hill, but that he would be my witness (direct examination). I asked Hill about the visual obstruction ordinance, which turned out to be a height limit of 3 feet for landscaping features near corners. I also asked him about a visual obstruction case concerning one of our neighbor's properties. Hill's testimony during this examination demonstrated that he never told me that there was a potential visual obstruction on our property, even after receiving a complaint.

After my second questioning of Officer Hill, the judge indicated that the trial was over and Mr. Lekki was given 30 days to file a response to my memorandum. There was also some discussion about summations, but I had never heard that term before. I asked about my chance for a closing statement, and the judge informed me that the summations would serve this purpose. I then understood that my closing argument was supposed to be submitted in writing.

After the trial, I was interviewed by the newspaper reporters. Stories appeared the next day in both papers, and one of the stories was even on the front page (above the fold).

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Comments
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by Sergej M.Sunday, January 15, 2006 [12:43 pm]

Thank you for sharing your story.

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Trial Documents:
--About Source Files
--Document Source Files
--Memorandum Of Law
--Defense Witness List
--Trial Notes
--Photographs
--Photograph Map
--Photograph Legend
--2004 Yard Sign
--Questions for Expert Witness
--Defense Summation
--Prosecution Summation
--Court Decision

External Links:
--Related Cases
--Wild Ones
--National Wildlife Federation
--Rappaport on Weedlaws
--EPA's Source Book for Public Officials
--Air Pollution Released from Cut Grass
--Honey, I'm not mowing this year
--NY Criminal Justice System Handbook
--Civil Appeal to County Court



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