Two months later, before the cold crack of dawn on December 10, authorities returned in even greater force, this time to disperse campers once and for all. By daybreak, they'd arrested 46 activists who refused to vacate Dewey Square. Among them, protester John Ford was charged with resisting arrest and trespassing — though he and other witnesses claim he peacefully surrendered with his palms up.
"Part of me was going to accept the deal," says Ford. "But I wanted to say out loud the reason that I was accepting the scurrilous charge of resisting arrest, and they wouldn't let me. When I opened my mouth at the arraignment, the bailiff grabbed me and forced me out of the room. I'm willing to fight this just on a criminal level. I don't think I was trespassing, and I certainly wasn't resisting arrest."
Allison Nevitt was also also jailed on December 10, charged with trespassing. Two days before the eviction, she wrote in a blog post on the Daily Kos that she would stand her ground in Dewey Square. "If I can watch people in Syria march when they know that they're going to be shot at," Nevitt tells the Phoenix, "then I can't stand here and let our government tell us that we don't have the right to assemble in a public space."
"Some people were charged with disturbing the peace, and some were charged with disturbing the peace and unlawful assembly," says NLG attorney Myong Joun. Joun also notes that only male defendants were charged with resisting arrest. "There's no real rhyme or reason. In the least, we want to know why were some people charged with unlawful assembly while others were only charged with trespass or vice-versa."
NLG attorneys initially sought to separate the defendants into two groups — those arrested in October, and those arrested in December. But motions to divide them by arrest dates were rejected, and instead Judge Dougan decided to split Occupiers into groups of about five, effectively removing the possibility of a marquee media trial. The DA's office welcomed that decision. "The logistics of trying a large number of defendants in one case in one courtroom would make it very difficult," says spokesman Wark, "not just for the prosecution and defense, but for the logistics of the actual courthouse."
Planning considerations aside, the biggest holdup has been the discovery process. The defense has requested a deluge of data — for example, NLG attorneys are after recordings from a camera on a Big Dig ventilation building with a bird's-eye view over Dewey Square. After months of asking, though, they were told that the footage belongs to the Massachusetts Turnpike Authority. On top of that, NLG attorneys say they're having trouble getting city footage.
"We still haven't received some documents, and especially videos," says Masny-Latos. "The cops claim that some of this footage has been lost, or destroyed because the law requires them to destroy if it's not used in a criminal case after 90 days. We know from other FOIA requests that we've filed that they don't destroy everything after 90 days. But when they say that they did destroy footage, we have no way to challenge that."