The prosecution tries to portray protest as a crime, but their tactics fall flat as defendants head to separate trials

Above: A banner displayed at the Aston Park Build protest and mutual aid project, December 2021. Photo by Veronica Coit

Over a year after 16 locals were hit with absurd felony littering charges for having art and mutual aid supplies in a public park, the trials of the remaining defendants are set to start next week. While the state’s asserting that basic protest actions are automatically criminal, pretrial legal fights indicate they’ll be hard-pressed to convict.

After one of the defendants plead guilty to misdemeanor conspiracy — the fourth to accept a plea deal on lesser charges — four were still set to fight on in court. Eight others remain charged but currently have no court date.

Defense attorneys Joel Schechet, Martin Moore (who is also a county commissioner), and Catherine Perez pushed for access to Asheville police’s policy requiring seven-days notice before evicting a houseless camp. While this was later scrapped, it was in effect in late 2021 — and openly violated in the raid on the Aston Park camp on Christmas night where they arrested both mutual aid workers and Blade journalists. The request also included the Buncombe sheriff’s standard operating procedure.

The Buncombe County District Attorney’s office, led by assistant D.A. Katie Kurdys, tried to lump the four defendants into a single trial, claiming they were part of some grand conspiracy. But Superior Court Judge Jacqueline Grant was sharply skeptical of many of the state’s assertions. Throughout the proceedings, which are typically the easiest part of a trial for prosecutors, Kurdys made only limited gains and racked up some key defeats.

First came the request for discovery of the APD’s policies from the defense, including Perez who stated defendants held an “understanding that there was a seven-day policy.” “The state is not obliged to go on a fishing expedition,” Kurdys objected. Grant denied the request for the documents, but only with the condition that the records be placed under seal, available should the defense appeal possible convictions.

Then came the main pretrial hearing concerning joinder of the four defendants. That’s the fancy legal term for combining multiple trials, and it’s a motion that is usually granted. Importantly Kurdys was the same prosecutor who tried to, absurdly, join Blade reporters’ trespassing trial with that of a protester back in January and failed. Proceedings this time would last more than a day, ending with Grant allowing joinder of only two of the defendants.

Kurdys pushed hard for the joinder of the four defendants’ trials on felony littering — a charge not used locally in over a decade — but hesitated to present any real evidence.

Grant wasn’t having it: “I can’t work off of ‘Your honor, just trust me.’”

“It’s complicated,” Kurdys replied.

After the prosecutor claimed that messages from a signal chat and the defendants’ mere presence at the protest/encampment was enough to warrant conspiracy charges, Grant retorted, “If I was there, can the state say that I was part of a conspiracy?”

“Before we address joinder, we need to identify that this evidence is admissible,” followed Schechet, referring to a Signal messaging thread – one of the other limited components of the prosecution’s argument, and not by itself enough usually to suggest a conspiracy.

The Signal messaging app is an encrypted form of communication used by everyone from protesters and journalists to accountants and lawyers. We saw the prosecution’s same reliance on Signal messages in the misdemeanor bench trial of one of the Aston defendants back in January. Kurdys didn’t submit this message thread as evidence then, but still discussed its existence at great length with testifying APD officer Sam DeGrave.

To hear the state tell it the mere use of Signal is evidence of a shadowy conspiracy, the virtual equivalent of mafia members passing secret messages. After Judge Calvin Hill passed a guilty verdict in that January trial, Perez understandably appealed immediately.

Defense attorneys retorted that lumping all the defendants together limited their options, with Schechet claiming that legal strategies and circumstances may defer among defendants, thus denying them a fair trial should they be tried together. He also claimed this would lead to the ensuing trials taking two weeks “if we’re lucky.”

“The state doesn’t intend to bring up the individual weights brought in,” replied Kurdys to this claim. In a felony littering trial where the state must prove that individuals dumped at least 500 pounds of garbage in Aston Park, this was a revealing admission of how weak her case is.

Officer DeGrave was brought to the stand again Tuesday afternoon, but his testimony still wasn’t enough for Grant to give Kurdys more than a tentative agreement to try only two of the defendants together. The prosecutor would even admit on Wednesday morning that there is “no standard jury instruction on this charge.”

Of course there isn’t. The last time anyone in Buncombe County was charged with felony littering, a crime intended to deter large businesses and corporations looking to cut corners, was in 2012. These charges only came up at all because APD Capt. Mike Lamb tried to use them as an excuse to kick the Aston Park Build protest and mutual aid event out in December 2021, and police commanders then seized on it to punish an effort whose politics they didn’t like.

After Kurdys claimed that some profiles making statements in a Signal thread such as “Yes, I love this.” and “I’m so into this” were sufficient evidence for a joined case, Grant shot her down, noting that people talking about protesting didn’t equate to conspiring to commit a crime.

“Why do they need to discuss jail support?” followed the frantic Kurdys, again claiming a basic practice by anyone attending a protest — police often arrest people unjustly — was automatically criminal.

This is part of a disturbing trend. Atlanta prosecutors have recently asserted that jail support numbers written on arms is enough to jail Stop Cop City protesters and anyone near them on bogus terrorism charges. Kurdys used a similar logic to try to paint defendants as party to a conspiracy on Wednesday.

She didn’t stop there, tossing out that protesters allegedly trying to bring in a porta-potty to a city park was a sign of criminal intent. She claimed that the mere act of “vetting” in a Signal thread — those in the group discussing who they were comfortable including — was similarly “indicative” of crime.

But the judge, for the most part, wasn’t buying it.

“There is an irreconcilable difference in the defense,” declared Grant. She allowed trials for two defendants to be joined because they both interacted with police at the same time during two particular days of the Aston Park Build. But the other two defendants will not be brought to trial this week. Like the other remaining eight still facing felony charges their futures are unclear.

But Grant left open the question of whether the Signal chat could be used in the upcoming trial, something about which she still seemed skeptical. And Grant assured that defense attorneys might have grounds to sever the cases as things moved forward.

On Thursday, the defense secured the sequestering of all state witnesses except the main investigator DeGrave, meaning that police who are called to testify are forbidden from interacting with court proceedings, news reports, or each other until the order is lifted.

Initially jury selection was set to start Thursday, but the court failed to gather a sufficient pool of eligible jurors. In order to provide the correct number of jurors and alternates, and allow for the maximum number of dismissals by the defense and the prosecutor, 39 potential jurors would have been needed, but only 35 were available. Even the District Attorney’s office remains stretched thin.

“Folks are sitting in the state’s deadliest jail, sometimes for years, just waiting for some kind of resolution to the charges they face,” an April 13 statement from the defendants notes. “But the Buncombe County District Attorney’s office has been prosecuting 16 mutual aid volunteers on charges of ‘felony littering’ for more than a year, after a previous decade in which they enforced that statute precisely once.”

What’s ahead? The defense and prosecution will collect and cull a jury pool, the defense will probably pursue expert testimony to bolster their cause, and the two sides will continue to fight over what trials can be joined and what evidence can be admitted. Jury selection for what Kurdys admitted was “the most publicized trial in five years” begins Monday afternoon, with the full trial probably starting mid-week.

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Matilda Bliss is a local writer, Blade reporter and activist. When she isn’t petsitting or making schedules of events, she strives to live an off-the-grid lifestyle and creates jewelry from local stones

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