Colette Wilson
Walter Hoye is a pro-life Baptist pastor from Berkeley who feels a special calling to reach out to his fellow African-Americans to end the genocide-by-abortion taking place in their communities. As part of his efforts, in 2007 he began going out about once a week to stand in front of Family Planning Specialists, an Oakland abortion clinic where he would offer leaflets about abortion alternatives and hold a sign reading, “Jesus loves you and your baby. Let us help.” By all accounts, his demeanor was unfailingly friendly and low-key.
Yet, there was something about his peaceful, prayerful presence that enraged local abortion enthusiasts, including the cadre of clinic escorts who began showing up to engage in a concerted effort to impede his movement, block his sign, and drown out his quiet offers of assistance. When that did not deter Rev. Hoye, clinic management enlisted the help of Oakland city council members to enact, on December 18, 2007, a “Mother-may-I” bubble-zone ordinance applicable within a 100-foot radius of any Oakland abortion clinic.
The law makes it a crime to “approach within eight feet of any person seeking to enter” a “reproductive health care facility” in order to offer literature, display a sign, or engage in “oral protest, education, or counseling,” without that person’s consent. Violators are subject to a penalty of up to one year in jail and/or a $2,000 fine for each offense. Life Legal Defense Foundation immediately filed a federal lawsuit challenging the ordinance as unconstitutional on its face. That case is still pending at the trial level.
The ordinance(1) was modeled after a law passed in the 1990s by the Colorado state legislature, which the U.S. Supreme Court upheld as constitutional in Hill v. Colorado, 530 U.S. 703 (2000). (See Lifeline Fall 2000 article by Mike Millen, discussing the case.)
Guided by LLDF attorneys and based on what the Supreme Court in Hillhad held was permissible under such an ordinance, Rev. Hoye continued his weekly vigils in front of the Oakland abortion clinic. Often, a team of as many as four clinic escorts would encircle Rev. Hoye, holding large sheets of blank cardboard in front of his sign and always interposing themselves between the pastor and any woman who might be headed towards the clinic. On May 13, 2008, still infuriated by his weekly prayerful presence, clinic personnel summoned the police and insisted that Rev. Hoye be arrested for supposedly having violated the ordinance. One of the witnesses against him was an Oakland City Attorney, who had been clandestinely watching for hours from her car parked across the street.
The District Attorney later filed a four-count complaint based on purported incidents of April 29 and May 13, 2008, listing two charges of allegedly “unlawful” approaches and two charges of allegedly using “force, threat of force, or physical obstruction” against clinic escorts. Despite the fact that these escorts later admitted at a pre-trial hearing that Rev. Hoye had never used force, threatened, or blocked them, the District Attorney refused to drop the charges.
At a readiness hearing on December 12, 2008, the D.A. demanded that Rev. Hoye plead guilty to one misdemeanor count and agree to stay away from the abortion clinic for an unspecified period of time in exchange for dismissing the other three charges. Rev. Hoye refused this “generous” offer, and the matter was set for trial. A jury was impaneled during the week after Christmas, and the prosecution began putting on its case January 5. Unbeknownst to the prosecution, defense attorneys had in their possession a complete video record of Rev. Hoye’s time outside the clinic on both days he was accused of having violated the law. Until the videotapes were offered as impeachment evidence, prosecution witnesses were remarkably creative in conjuring up phantom patients whom Rev. Hoye had supposedly harassed, as well as in claiming he had threatened two escorts and the clinic director.
The most egregious of such false testimony came from the first witness, clinic director Jackie Barbic, who claimed that she had watched from a window as Rev. Hoye approached within a few feet of six to eight patients, including one who had put up her hands to fend him off. She described how she then went outside with a tape measure to demonstrate to him what eight feet looked like. According to Barbic, Rev. Hoye then began approaching her, with a “smirk” on his face, all the while she was backing away, saying, “Stay away from me! Back away!” with her hands held up to protect herself.
During her testimony, her voice choked with emotion as she described how fearful and intimidated she was. On cross-examination, Ms. Barbic and the jury were shown the video of this incident. The video showed Ms. Barbic approaching Rev. Hoye and pointing a tape measure at him—and Rev. Hoye standing still. She could be seen lecturing him and then talking to others standing outside, while Rev. Hoye walked away. A few minutes later, the same scene played out again, with Ms. Barbic again pointing the tape measure at Rev. Hoye and him moving down the sidewalk in a different direction. When Ms. Barbic was asked if either of these was the incident she was talking about, she immediately responded that they were not—that there was a third incident with a tape measure that occurred later. There was, of course, no third incident, as the remaining video of the morning showed. Ms. Barbic’s other testimony was also contradicted in virtually every particular by the video or, surprisingly, by other prosecution witnesses.
After the existence of the videotape was revealed to the prosecution, there were no more claims that Rev. Hoye had made any threatening gestures towards anyone, although escorts did claim there were more approaches to phantom patients. One escort claimed she felt intimidated when she saw Ms. Barbic approach Rev. Hoye with the tape measure and tell him to back off, and, “Walter didn’t move. He just stood there.” In this escort’s mind, the law required Rev. Hoye to back away from the clinic director, and the fact that he didn’t do so was perceived by her as very intimidating.
Or so she testified. Upon cross-examination, it was revealed that she had never mentioned this to the police or the District Attorney until after charges had been filed. In other words, the D.A. first filed the charges naming her as a victim, then went desperately searching for evidence to back it up. (The court dismissed this particular charge at the close of the prosecution’s case.)
According to another clinic escort who testified, she felt “creepy” when Rev. Hoye spoke to her, warning her not to trip on the curb after she had stepped in front of him to cover up his sign. Both her testimony and the video confirmed that she repeatedly approached Rev. Hoye to take up a position directly in front of him, or to one side, in order to hold a blank sign in front of his. When asked why she did not stay away from Rev. Hoye if she felt intimidated, she replied that it was more important, “to prevent women from seeing what is on his sign.” Indeed, the escort witnesses were unanimous on this point: that the job of an escort is to prevent women from reading Rev. Hoye’s sign or hearing his message. They freely acknowledged that the message on the sign was, “Jesus loves you and your baby. Let us help,” and that what Rev. Hoye would say to women was, “Can I talk to you for a minute about alternatives?” In their view, such messages were “harassing” and “intimidating” and required their efforts to make sure women did not see or hear them.
Despite initial vehement objections from the D.A. demanding that the videotape be kept out, the judge ultimately allowed the jury to see the entirety of the videotape from the two dates in question. The lengthy footage was so uneventful, even the judge was seen dozing off at one point, along with at least one of the jurors.
So, naturally, Rev. Hoye was acquitted of all charges, right? Wrong! The jury acquitted Rev. Hoye on only one charge—the remaining count of harassing a clinic escort—and found him guilty of “harassing” two individuals seeking access to the abortion clinic.
How was that even possible? First, it must be borne in mind that the Oakland ordinance takes a very expansive view of what counts as “harassment,” defining essentially any effort to communicate—whether by offering a pamphlet, holding a sign, or speaking aloud—as “harassment,” if it is done within eight feet of anyone entering or exiting an abortion clinic. Second, notwithstanding the ordinance’s own caveat that nothing in it “shall be construed to prohibit any expressive conduct” protected by the First Amendment, and notwithstanding the Supreme Court’s extensive discussion on how such an ordinance must be interpreted in order to pass constitutional muster, the trial judge refused to instruct the jury in any way as to how this ordinance must be interpreted.
Judge Stuart Hing denied all such requests for jury instructions made by LLDF attorneys. On such basic questions as, “What constitutes an ‘approach’?” or “Does ‘consent’ mean the person seeking to communicate has to first obtain permission or does it mean he is free to communicate until the person tells him to ‘go away,’” the jury received no guidance. Nor was it explained whether, if one simply stands in place and holds out one’s hand to offer literature as a person walks by, that counts as an “approach.” The Supreme Court in Hill held that it could not—this jury decided that it did.
Thus, the jury was left without any navigational device while sailing in dangerously unconstitutional waters. When they pored over the videotape during deliberations, jury members (most of whom were highly educated, by the way) took a hyper-technical approach, reaching absurd results. For example, some noticed on the video that Rev. Hoye, while holding his sign, turned slightly towards the UPS man as he entered the clinic and counted that as a violation! Jurors did not agree among themselves as to what Rev. Hoye had done to violate the ordinance, nor did the judge require them to. No one cared that these perceived victims never complained to anyone about Rev. Hoye’s conduct; the jury was allowed to use its own judgment as to what constituted a criminal violation by Rev. Hoye from merely watching the video. For this, Rev. Hoye is facing possibly two years in prison and a $4,000 fine!
Allison Aranda, LLDF staff counsel who defended Rev. Hoye throughout the trial along with volunteer LLDF attorney Mike Millen and LLDF Legal Director Katie Short, was flabbergasted by the results. “This is a miscarriage of justice, and we will appeal this verdict,” she said. “After speaking with several jurors after the verdict was read, it is clear that the court’s failure and outright refusal to instruct the jury regarding the key elements of the crime led to the erroneous conviction of Rev. Hoye.” LLDF attorneys plan to challenge the constitutionality of the ordinance, as well as the prosecution’s failure to meet its burden of proof.
Although stunned and dismayed by the jury’s verdict on January 15, 2009, Rev. Hoye said, “It’s Martin Luther King, Jr.’s birthday again, and I can still hear his words in my heart: “The Negro cannot win as long as he is willing to sacrifice the lives of his children for comfort and safety.’”
Following the verdict, Judge Hing contemplated immediately taking Rev. Hoye into custody and sentencing him the following day. Defense counsel objected and dissuaded the judge from remanding Rev. Hoye to custody that day, based on his promise to stay at least 100 yards away from the abortion clinic while awaiting sentencing so that Rev. Hoye’s attorneys could draft several post-trial motions and prepare for the hearing.
At the February 19, 2009 sentencing hearing the District Attorney recommended two possible sentences for Rev. Hoye. The first being 3 years probation, a $130 restitution fine, and an order prohibiting Rev. Hoye from coming within 100 yards of the abortion clinic at 200 Webster Street. Alternatively, if Rev. Hoye refused to agree to the stay-away order, the District Attorney requested that the court put Rev. Hoye in jail for the maximum sentence of 2 years. Initially, the Judge was inclined to go along with the prosecutor’s first option, but when the court learned that Rev. Hoye would not agree to the stay-away order, the Judge sentenced Rev. Hoye to 1) 30 days jail time, which could be served in an alternative program, 2) a $130 restitution fine, and, 3) half of the statutorily-authorized fine of $2,000, for at total fine of $1,130. Additionally, the Judge put Rev. Hoye on probation for 3 years and as a condition of probation, he required Rev. Hoye to continue to abide by the 100 foot stay-away order.
Rev. Hoye told the Court that he would follow the law as it is being applied by Oakland officials while on probation, however, he would not accept probation if it included an order to stay away from the clinic all together. Rev. Hoye expressed his desire to simply pay his debt to society and be free to return to the clinic rather than being placed on probation. Despite Rev. Hoye’s refusal to accept the Judge’s probation offer, and even after the pleas of Rev. Hoye’s attorneys, who explained that probation is a contract, and in order to have an enforceable contract there must be an acceptance of the offer made, the Judge insisted that the D.A. draw up Rev. Hoye’s probation agreement as pronounced. The Judge then set another hearing on March 20, 2009 in this matter, so that Rev. Hoye’s attorneys can prepare their notice of appeal and file a request for stay pending appeal.
The Judge then set another hearing on March 20, 2009 in this matter, so that Rev. Hoye’s attorneys can prepare their notice of appeal and file a request for stay pending appeal. LLDF attorneys are now researching and briefing the issues to be discussed at the hearing, including the right of a defendant to decline probation, which right appears well-established in California law. Also, California law guarantees the right of Rev. Hoye to be free on bail pending appeal, with only those conditions related to “public safety.” So for now, Rev. Hoye continues to enjoy at least limited liberty.
http://bpc.iserver.net/codes/oakland/_Data/tItLe08/, then scroll down to Chapter 8.52, “Access to reproductive Health Care Facilities”