By Jena Ardell
By Jon Campbell
By Alan Scherstuhl
By Tessa Stuart
By Roy Edroso
By Jon Campbell
By Albert Samaha
By Zachary D. Roberts
DECEMBER 21Chanting "Mumia's fearless, so are we. We demand that Clark go free," two dozen demonstrators braved freezing winds Wednesday morning to protest the incarceration of a supporter of death row inmate Mumia Abu-Jamal at the Brooklyn Metropolitan Detention Center.
Accusations of political persecution might be commonplace for this crowd, but in this case, the penalties dealt activist Clark Kissinger seem to invite skepticism about just application of the law. Their main target: magistrate judge Arnold Rapoport, "a flaming reactionary" who "has engaged in utterly bizarre, erratic behavior," according to Kissinger lawyer Ronald Kuby.
Kissinger's troubles with Rapoport began last year, but intensified after a December 6 hearing in Philadelphia, where he received a sentence of 90 days in jail for violating probation related to a previous arrest. As part of that probation, Kissinger had been forbidden from leaving his hometown, New York City, without the consent of authorities. But on August 1, Kissinger did just that, to deliver a speech on Mumia at the Republican National Convention. Kissinger requested but was denied permission for that trip. Given the once-in-a-lifetime occasion of a Republican convention in the town of Abu-Jamal's imprisonment, however, he went anyway.
In his speech, he called George W. Bush "a smirking frat rat" who had "killed 135 people, that is, approximately one person every other week for the entire tenure of his governorship of Texas."
This highly public appearance landed him before Rapoport again. During the hearing, Kuby argued that Kissinger had every constitutional right to travel to a relevant spot to most effectively deliver his political message. Rapoport apparently had other ideas. Though he opened the hearing claiming that "the only issue is whether or not the defendant violated the terms of his probation," his subsequent comments hinted at a different agenda.
Rapoport at one point suggested Kissinger had "created a riot" at his New York probation office, although he eventually tempered that characterization, according to an official transcript of the hearing. Later, he mentioned threats he had received, asking Kissinger, "(T)hat's what we're to expect here?"
"He was clearly blaming Kissinger for these (threats)," Kuby says. "If he had been a defendant acting like that, he would have been packed off for psychiatric evaluation."
Some of Rapoport's commentslike "(T)here seems to be a trail of disruption wherever (Kissinger) goes"drew laughter from Kissinger supporters, prompting the judge to order the courtroom cleared.
"(Rapoport) is a flaming reactionary, furious that people have raised the issue of Mumia Abu-Jamal and have traveled to Philly to do it," Kuby says.
A member of Rapoport's staff said the judge would not comment. But assistant U.S. attorney Richard Goldberg denies the judge behaved inappropriately and says, "The case was very simpleMr. Kissinger stipulated that he violated the terms of his probation." He adds, "Your First Amendment rights aren't absolute when you break the law."
Kissinger's supporters accuse Rapoport of skewed and severe decision-making, beginning with probation conditions they call too harsh for the crime. For a Class B misdemeanoramong the most minor of violations, usually meriting a small fineKissinger received a year's probation, in which he has been banned from traveling without permission, has had to turn in his passport, and is under orders to provide personal and financial data and information on associates.
All that for allegedly refusing an order to move during a lawful protest at Philadelphia's Liberty Bell pavilion in July 1999. Rather than plead guilty and pay a small fine, he and a few others pled innocent and went to trial.
Kuby believes the state is in part punishing Kissinger for daring to go to trial. He calls the one-year probation "unheard of" and says the Brooklyn detention facility, where accused felons awaiting trial are normally housed, is so unaccustomed to dealing with misdemeanants that "even the prison authorities are having difficulty figuring out how to process Clark."
The point of the penalties, Kuby argues, has not been to punish a simple failure to comply with an order, but rather "to prevent Clark Kissinger from speaking out about Mumia Abu-Jamal." Rapoport, Kuby says, "virtually admitted as much" at the December 6 hearing, by displaying apparent aggravation with Kissinger and his supporters.
Goldberg, the D.A., counters, "they appear to be perfectly standard conditions of probation," adding that probation, rather than a simple fine, is not an extraordinary penalty.
But Goldberg and Kissinger's supporters agree, at least to some extent, on one point: Kissinger's punishments are a warning to other activists. At his December 6 hearing, Kissinger said, "The purpose behind my sentencing and restriction has been in effect to try and put a brake on a political movement that the government does not like."
Goldberg denies politics played a role in the court's decisions. But he says, "Everyone who is punished is to a certain extent punished so that other people also don't break the law. It's all about breaking the law."