As politically and emotionally charged discussion continues to swirl regarding the Occupy Nashville protests, more than 50 people still have court dates set following arrests on Oct. 28-29.
Night Court Judge Tom Nelson found no probable cause in the arrest of protesters on Legislative Plaza on two consecutive nights, but Tennessee Highway Patrol officers still issued written citations.
District Attorney General Torry Johnson’s office has the authority to dismiss those citations and is currently reviewing the cases. “We are looking at the charging documents,” spokeswoman Susan Niland said.
“As far as what might happen, it’s premature to say. … We’ll examine the proof that exists, and then we can proceed.”
When a person is arrested for a misdemeanor in Nashville, the law requires they be taken before a magistrate as soon as possible. Then the judge or judicial commissioner decides whether to cite, hold or release the defendant.
According to Nashville criminal defense attorney Kerry Haymaker, if a Night Court judicial commissioner throws out a charge — as in the case of the Occupy Nashville arrestees — citations aren’t typically issued.
“I’ve done this 14 years and I’m not saying it’s never happened, but I’ve never seen it,” Haymaker said.
THP officers were told by an authority, Nelson, that there was no probable cause, but turned around and issued citations stating otherwise, Haymaker said.
A combination of rulings will affect Johnson’s decision, said noted Nashville civil rights attorney George Barrett.
“The state troopers issued citations to the demonstrators after the night commissioner refused to issue warrants, which is not the practice in Nashville," Barrett said. "Subsequently, Judge [Aleta] Trauger issued an order permitting the occupiers to continue. This puts the district attorney general in a difficult position. The DA has broad discretion on such matters. I know that General Johnson is a good lawyer, and a fair prosecutor. Therefore, his review of these issues, in his usual careful manner, and Judge Trauger’s order, will make it difficult to proceed with these citations.”
Fifty-five arrests were made over the two nights, each followed by a criminal trespassing citation.
Two additional citations were handed out for public intoxication and one for criminal impersonation of a law enforcement officer on Oct. 29.