San Diego Judge Deals Out Harsh Sentence to Occupy Activist – Throws Down Gaunlet to Occupy Movement

by on April 27, 2012 · 36 comments

in Civil Disobedience, Civil Rights, Culture, Economy, Organizing, Politics, Popular, San Diego

Andrew Fisher "Fish" with his dog. Both are considered very dangerous to the status of the 1%.

On the morning of April 24, an Occupy San Diego activist was sentenced to an overly harsh 90 days in jail and stiff probation conditions that have nothing to do with his protests.  And in doing so, the judge took it upon himself to throw down the gauntlet at the feet of the Occupy Wall Street movement in San Diego.

The activism of Andrew Fisher – nicknamed “Fish” – arrested and convicted of violating California Penal Code section 148 (a)(1) – obstruction of a peace officer, was not appreciated by Judge Richard Whitney, a San Diego County Superior Court judge.  Judge Whitney took it upon himself to single-handedly punish Fish and all other potential demonstrators with the Occupy movement. Whitney sentenced him to the 90 days, and with time off for time already served, with overcrowding and good behavior, he’s potentially looking at 43 days.

Whitney stepped out of his role as neutral arbiter and ordered Fish to enroll in a number of programs upon his release into 3 years of probation that have nothing to do with public protest and first amendment rights. Fisher was ordered to have no alcohol or drugs in his system for that time – even though neither alcohol or drugs were an issue in his arrest, in fact, he was sober at the time of the incident.

Supporters in court that morning reported that the judge told Fiser that unless he was real lucky and completed a number of programs and got a full time job, or full time education or combination thereof, that he was looking at time in state prison. The sentence was over and above what the prosecutors asked for, with the absurd conditions of his probation.

San Diego Superior Court Judge Richard S. Whitney.

One supporter wrote:

There is no justice here. Fish has already spent lots of time working to try to make our world and country better in his choice to be an activist with Occupy. The judge essentially told him that he would not be able to continue that path because if he did he would be going to state prison.

Another activist stated:

Today was a travesty of justice for occupy. Fish Fishticles sentenced to 90 days in jail plus 3 yrs hard core probation. The judge was despicable and told Andrew that he was a waste of a human being! He was utterly cruel and dismissive of everything the attorney said as to the way Fish’s life had changed. The judge had access to a huge stack of testimonials but he was set on throwing the book at him.

Judge Whitney stated this to Fish in the courtroom:

“I think the facts show you have a complete disregard for law enforcement.” “Get involved with college – start doing something productive with your life.”

A facebook page has been set up for Fish to coordinate visitation, etc.

 

{ 36 comments… read them below or add one }

avatar Jack April 27, 2012 at 9:40 am

Well, if he was charged and convictyed of California Penal Code section 148, then it is a misdemeanor offense which carries a penalty of no more than one year in County Jail, not State Prison.

If the probation conditions are too onerous, and they usually are, the defendant can refuse and be sentenced to the maximum time in custody. When he gets out, he is not under the control of the court in any type of status, probation or otherwise.

Given the current over-crowding, I would be surprised if served more than thirty days for an offense, even if he is given a year in custody.

As to Judge Whitney, an elected judge, not appointed. I did not vote for him because his campaign was worded in such a way it could be construed he was already a judge…a sort of fraud for the unwary. His position on the bench should be a lesson to all of us to read the credentials of those running for the bench before we cast a vote. Clearly, his election to the bench was a mistake and has become a burden we will have to bear.

In Peace, Jack

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avatar Frank Gormlie April 27, 2012 at 9:48 am

Thanks Jack. As you and I know, PC 148 is a catch-all, and judges have wide range of options in sentencing anyone who has been convicted under that statute.

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avatar Frank Gormlie April 27, 2012 at 10:25 am

Of course, one of the problems is that come election time, no one gives a damn of who’s running for judge. The judge races are the most over-looked, least understood, and least appreciated races that we have. Part of the problem is their under-the-radar approach of the judges’ campaigns – like, no debates ever! and no coverage by the corporate press of the court candidates, so voters have no idea who they are or where they stand. And because no one pays attention, we end up with these former prosecutors, pro-law and order types. Not always, however, but most of the time. (I have to say that Point Loman Judge Frank Brown, himself an ex-cop, ex-prosecutor, is one of the most compassionate judges around our town.) Overall, our judiciary needs more transparency.

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avatar Jo April 27, 2012 at 9:46 am

The Judge had some interesting endorsers:
http://www.smartvoter.org/2002/11/05/ca/sd/vote/whitney_r/

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avatar Frank Gormlie April 27, 2012 at 10:20 am

Sounds like a ‘law – n- order’ guy. Damn the Bill of Rights! Full speed to detention!

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avatar Ray Lutz April 27, 2012 at 10:01 am

I went to much of the trial and I thought that the jury would never convict Fish of anything, given the evidence that he was trying to pull a woman away from conflict with a police line — and she was upset because her dog was still at Civic Center Plaza, behind the police line. Instead of arguing with the woman, they could have asked her about it and helped her to retrieve her dog, and no conflict would have occurred. Fish has been consistently nonviolent at the protests.

This is one time OSD must join together and take this judge out of office. If he is elected, then he can be taken down by the people. Most people don’t vote for the judges bc they don’t have a clue who they are. If we get the word out, he can be history, and we will send a message that if you throw down the gauntlet at the feet of OSD, we will pick it up and accept the challenge. Judge Whitney must go!

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avatar Jack April 27, 2012 at 10:31 am

Every six years they can be challenged in an electoral vote. Otherwise, you are always free to call for an impeachment, but I am afraid that would not get much traction. The only immediate action can be a report to the Council on Judicial Performance. Additionally, a defendant can challenge the appointment of Judge Whitney as the assignment to his or her case. In the past, Deputies in the DA’s office have refused to take cases in front of certain judges due to an apparent bias toward the accused or ruling against the “peoples” position.

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avatar James April 27, 2012 at 10:07 am

Seriously, can somebody just punch that damn judge in the nose? The funny part is Fish wasn’t even obstructing an officer. He was obstructing a young woman from kicking an officers ass, which she very well may have (though that surely would have led to HER arrest.) I’m just so sick of seeing people punished for doing the right thing!

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avatar Dickie April 27, 2012 at 11:40 am

sadly such over-the-top “hard core” probation is nothing new to SD judges . . . for example, back in another era of OB activism and the old OB Peoples’ Rag a certain staffer with initials FG was forbidden to work for, associate with, or associate with anyone who associated with the OB Peoples’ Rag as one of several irrelevant conditions of probation.

I don’t know Fish, but I can imagine him . . . I hope he, and with the heartfelt support of friends and comrades, can somehow challenge this this onerous attack on the right to exercise democratic right son behalf of real change.

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avatar Goatskull April 27, 2012 at 1:27 pm

Hopefully, but talk to anyone who works in the SD city/county court system and they will confirm (if they know you on a personal level) that this is just business as usual. I’m not implying that all employees are behind this, but they DO see it all the time.

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avatar Arwen April 27, 2012 at 2:01 pm

Isn’t it possible to flood this guy with mail regarding this decision? It appears he has no idea what kind of community support the Occupy movement really has. He has treated this activist not as a concerned citizen, but as someone with no respect of authority. It’s clear he doesn’t know the difference and needs to be taught a lesson. This just makes me sick.

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avatar Goatskull April 27, 2012 at 5:30 pm

Or, he very much knows how much community support the occupy movement and this is his preverbal middle finger to it .

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avatar Jo April 27, 2012 at 2:35 pm

A stack of letters written by friends regarding the good character of Andrew were submitted to the court and the probation officer. They were basically ignored.

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avatar jeremiah oneal April 27, 2012 at 10:26 pm

I feel that it’s important to uphold the good peoples name’s, like Fish whom had lies and slander brought fourth to their name, by creating something for them in some form that can be exhibited or easily accessible.

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avatar ken April 28, 2012 at 2:34 am

The law is a farce, It’s applied to control us rabble and aid the wealthy.
We have no rights anymore.

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avatar ken April 28, 2012 at 2:46 am

BTW, This kind of thing is happening all over the country with Occupy protesters.

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avatar Shane Finneran April 28, 2012 at 9:53 am

…and all of it under a Democratic president who has said nothing and done nothing to defend the rights of the protesters, but has instead joined in their persecution. Egads.

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avatar Pete April 28, 2012 at 9:28 am

WE MUST UNITE – WE MUST HIT THEM IN THE WALLET!!

I support the occupy movement, but I am frustrated. How can we defeat the 1% percent when they have the money make and sell their propaganda. Have you noticed this?? Have you noticed that the 1% is starting to dominate the web?

Look at the “right-winger” site call the Patriot Depot. It is filled with lies that the “flat-earthers” just eat up.

I am so freakin’ mad. They are even selling a board game showing Obama and liberals ruining small businesses and putting people out of work. It is blatantly racist and hateful!! Someone has to step up and boycott these people, or the advertisers that support this trash!

Warning: Do not view this if you have high blood pressure!

This web site promotes gun violence and the board game depicts people of color as idiots!

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avatar Pete April 28, 2012 at 9:29 am

WE MUST UNITE – WE MUST HIT THEM IN THE WALLET!!

I support the occupy movement, but I am frustrated. How can we defeat the 1% percent when they have the money make and sell their propaganda. Have you noticed this?? Have you noticed that the 1% is starting to dominate the web?

Look at the “right-winger” site call the Patriot Depot. It is filled with lies that the “flat-earthers” just eat up.

I am so freakin’ mad. They are even selling a board game showing Obama and liberals ruining small businesses and putting people out of work. It is blatantly racist and hateful!! Someone has to step up and boycott these people, or the advertisers that support this trash!

Warning: Do not view this if you have high blood pressure!

This web site promotes gun violence and the board game depicts people of color as idiots!

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avatar Goatskull April 30, 2012 at 8:37 am

“How can we defeat the 1% percent when they have the money make and sell their propaganda”
You know the real problem with defeating the 1% is not the 1% itself but the fact that the 99% are not 100% in sync with each other. Not even close. The very cops who beat and pepper spray Occupy protesters are technically 99 percenters themselves. The small business owner who doesn’t want to pay health care benefits to his/her employees is a 99 percenter. The gung ho Marine who is itching to get back out to the battlefield is part of the 99%. I will take a wild guess here and say that the majority of Tea people are not in the 1%. I could go on and on but my point is that the 99% comes in all different political beliefs, social values, religious beliefs, cultures, etc. Hell, I know 99 percenters who are perfectly OK with the 1% controlling everything.

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avatar Mrs Kramer April 28, 2012 at 10:10 am

Below is a link to who is running for re-election. Pdf page 29 to 37 lists the names the SD County judges who are “running”. Only a few of these judges will be on the ballot. If no one runs against a judge, their name is not on it. So the vast majority of judges in SD County whose terms are up are about to be “re-elected” and no one will even know that they “ran for re-election”.

http://www.sdcounty.ca.gov/voters/Eng/election/0612candlist.pdf

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avatar Mrs Kramer April 28, 2012 at 10:18 am

My apologies. I hit submit too soon. I’m not sure how it works with regard to ballots and candidates, so I could be way off base with this question:

Could Occupy San Diego start a write in campaign for attorneys who actually care about the First Amendment of the Constitution to fill these judicial seats that are up for re-election but not on the ballot?

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avatar tricia April 28, 2012 at 11:23 am

Ditto Shane

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avatar ken April 28, 2012 at 11:34 am

@ Shane
Exactly.
I’m not voting for O this time, I can’t tell him from W on war, civil rights and torture issues.
However, we will be in a lot of trouble if we don’t get these Rightwing Lawmakers out as soon as possible.

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avatar Goatskull April 28, 2012 at 2:31 pm

So with everything you said, who will you vote for? One less vote for “O” is one better shot for Romney. Just sayin.

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avatar ken April 28, 2012 at 3:02 pm

I’m in California… I don’t think it will matter here, I’m just tired of holding my breath and voting, I can’t condone O’s Stance on Occupy or Civil Rights, Where the F has he been?

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avatar rick trujillo April 28, 2012 at 6:01 pm

As always, it’s informative and seriously important to read responses posted on the OBRag. Lots of good, in depth thinking.
Fish, I’ve admired your work as a common citizen for many months. I’ve communicated with you often to get the mic ck reality lowdown. Even though I operate from the fringes with support, it’s wonderful youth, like yourself, that inspires me.
You would be a wonderful judge.
Let’s understand, please, those ” highly educated clowns” in robes seated behind their polished woodwork are supposed to come through when needed for the >1% (> this sign means greater than). That’s their purpose.
Aside from the backward, upside down and inside out logic he spewed on you (what a nerve cited your democratic behavior) his sentence is a message to youth. I will put you away. Why? Because we can. We have the power and you don’t………….yet.
Not a single politician in the county spoke up for you or any other Occupy person falsely charged. That’s not a problem, that’s a gift. We, plus, thousands of cool and enlightened young people better know now who not to trust. That’s a net gain. What they do to us comes at their expense even this early in the battle. And you are a reason for this. that’s called being a “tribune of the people.” A very high honor….. you and Hex , and others to folow are a big part of our corrected history in the making (it is far from over and all these shit head judges know it).
We are not undermining justice…the twin parties, hand in hand, are the ones enforcing law breaking as against free speech and assembly (ie city council). they are destroying their own two party charade with every single foreclosure, every eviction, every tuition increase, every denial of medical aide, every pink slip, every rudeness, every bit of thuggery and on and on.
There is only one vote that matters…on our/your feet seeking critical mass in the streets, our streets.
For us in San Diego a sign stating Free Fish preceded buy _ _ _ k Judge whitney and all the robes on May Day, will resonate….we too have a message for the establishment. Since the 60’s, in the main, this distrust in government has not changed. The truth has not changed. This is the continual reply. I see coming from Ocean Beach. It’s really not about who to vote for, is it?

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avatar ken April 28, 2012 at 6:12 pm

@Rick T
Occupy lives because of the support from the fringes , as well as having feet on the ground.
Any help is aprieciated and needed.

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avatar jeremiah oneal April 28, 2012 at 10:49 pm

Ken,
I know everyone has their own mind on what to do. In my mind going out and voting is the best thing there is to do even when it seems like theirs no hope left.

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avatar ken April 29, 2012 at 1:15 am

Oh I’m Voting alright. I’m casting my vote for Progressives and progressive law makers just not President Obama. far as I’m concerned he is a Republican.

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avatar Goatskull April 29, 2012 at 10:55 am

As I said, one less vote for “O” is one more chance foe who you DON’T want in office. You may not like voting for the less of two wvils, but sometimes there is no other choice.

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avatar ken April 29, 2012 at 1:33 pm

Look, President Obama Has failed his base I will not vote for him again.
I encourage everyone to vote for progressives only, We must send a strong message to Democrats the direction we want the country to go.
If I have to do a right in vote or vote for Ron Paul I will, President Obama has sold out.

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avatar Goatskull April 30, 2012 at 8:19 am

The problem is that not all people who vote Democrat are progressives. I would venture to guess that most aren’t.

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avatar imominous April 29, 2012 at 4:03 pm

“Do something productive?”

I’d say fighting to keep our nation free is friggin productive…moreso than a lot of things people do. Like this judge, what a useless POS!

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avatar ken April 29, 2012 at 5:53 pm

It would be nice to see him doxed Not that I am advocating that….

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avatar Sarah July 7, 2012 at 8:08 am

The dY fISH WAS SENRTENCED AND CONVICTED TO 90 DAYS IN JAIL, THAT WAS THE SAME DAY I GOT FIRED FROM MY JOB AT UPS.

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