Deb Moore and Marty Kent, facing trial for violating Berkeley's anti-nudity ordinance, had their case dismissed by judge Ron Greenberg on Friday, April 10.
Moore and Kent, directors of the Berkeley-based X-plicit Players performance group, were charged with five counts under the anti-nudity ordinance. They were cited in July, November and December of last year for performing naked on Telegraph Ave. in Berkeley.
A legal controversy arose in the case because the pair were charged with infractions, despite the fact that the law is on the books as a misdemeanor. Infraction cases are heard only by a commissioner or judge and are not subject to trial with a jury.
Defense attorney Bill Simpich moved for dismissal of the case due to the improper presentation of the charges, and Greenberg ruled in his favor.
How Moore and Kent came to be charged with infractions rather than misdemeanors remains something of a "mystery".
In September 1997, after the D.A.'s office had declined prosecution of nine consecutive citations, the Berkeley City Council held a closed meeting in which they discussed "the potential for litigation arising from the anti-nudity ordinance". Rumor has it that this meeting included discussion of the possibility of changing the anti-nudity ordinance from a misdemeanor to an infraction, as a way to prevent the X-plicit Players from presenting their next case to a possibly sympathetic jury.
In November and December 1997, Moore and Kent were cited again for their nude street performances. The citations were written as misdemeanors, and included court arraignment dates (infraction citations do not have associated court dates).
At the time of their December citation, the pair were also arrested and charged with failure to appear in court for citations they'd received in July. These charges had been explicitly dropped by the District Attorney's office, and appropriate records made, but somehow these records were invisible to the arresting officer. Life is full of mystery, isn't it?
Eventually, after a series of court hearings, the situation began to settle: the misdemeanor charges from July, dropped by the D.A.'s office, reincarnated as infraction charges. The misdemeanor charges from November and December, never having been filed with the D.A.'s office, appeared as infractions. The charges were brought together and trial scheduled for April 13.
Meanwhile, someone got worried about the appropriateness of these infraction charges. Another closed meeting was scheduled for the City Council, but the press got wind of it and showed up with a lot of questions.
The closed meeting was canceled. City Attorney Manuela Albuquerque admitted that the anti-nudity ordinance couldn't be prosecuted as an infraction. The case was dismissed.
Some flavorful features of the case:
• An infraction was invented to replace a misdemeanor.
• A fee for the imaginary infraction was set, and bills were actually sent to Moore and Kent.
• Police reports from the citations, which should have been forwarded to the D.A.'s office for prosecution, were shunted to limbo.
Someone must've had a lot of fun playing God...
The character of the anti-nudity ordinance seems to hinge on its status as misdemeanor or infraction. While the law remains a misdemeanor, people accused of violating it are always able to call for the judgment of a jury.
The X-plicit Players have always claimed that there is widespread appreciation of public nudity in Berkeley. We believe that the great majority of local citizens are happy to accept the appearance of naked people in public. Popular support has sustained us through six years of legal battles, including five trials, all of which have been decided in our favor.
When the jury acquitted Deb Moore and Nina Shilling in October 1996, they spoke for the citizens of Berkeley. It seems the District Attorney's office heard their voice, because since that time they've refused to prosecute any of the citations filed against us.
We feel that local law should reflect the shared sensibilities of local citizens. The attempt to recast the anti-nudity ordinance as an infraction is a clear-cut attack on this idea. The whole point of the move is to exclude the voices of Berkeley citizens from the effects of the law. This must not happen.
The people of Berkeley have supported us, and we support them. We trust their judgments about the anti-nudity ordinance, and we are adamantly opposed to a legal maneuver aimed at excluding those judgments from the legal process.
We call upon everyone who cares about the just application of the anti-nudity ordinance to tell the City Council in no uncertain terms: Don't change the anti-nudity ordinance to an infraction. Hands off the juries!
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