December 2003    

We print below a report on the sixth day of the trial of  Hostos Community College student leader, Miguel Malo, which continued on Monday, December 6.

Miguel Malo holding photo of his back after brutal manhandling by police in August 2001.
(Photo: Sue Kellogg)

On Day 6 of the trial of Miguel Malo in Bronx Criminal Court, Bronx assistant district attorney Terry Gensler rested the state’s case. Defense attorney Ron McGuire immediately moved to dismiss the charges since the prosecution had failed to present evidence substantiating any of its charges against the Hostos Community College student leader. The state did not show that there was any disruption of registration, or that there was any assembly going on, or that the defendant intended to strike anyone. Judge Robert Torres ruled that the prosecution had failed to present a prima facie case for resisting arrest and dismissed that charge. 

In fact, all three prosecution witnesses from the City University of New York (CUNY) security department admitted that neither they nor anyone else ever told Miguel Malo that he was under arrest until after the whole incident was over. Nor was he warned by any of the campus cops that he would be arrested if he continued to stand there with a sign and leaflets. Moreover, since one person alone can hardly by engaged in “assembly,” which the college administration claimed to have banned on that day for the first time ever, he hadn’t even violated the prohibition in a dubious “public safety announcement” that no student or faculty member has reported seeing that day.

This is an important positive development for Miguel’s defense, and by rights ought to lead to all the charges against him being thrown out. However, he is still facing multiple serious charges of assault (six in all), as well as disorderly conduct and harassment. Moreover, later in the day, the judge in effect ruled out any testimony from faculty witnesses that would show that both before and after August 2001, students and others passed out leaflets in the atrium area without prior approval. He also refused to let the defense show a videotape of exactly that taking place during a blood drive nine months later. 

Judge Torres blocked testimony from a faculty member (Lisette Colón) on her credentials as an expert in ESL (English as a second language) instruction and Miguel’s limited English as shown in exam results. He wouldn’t let her testify, as a faculty adviser to student clubs, that no permission had ever been required to pass out leaflets or hold signs in the area, and that there was no prior notification of the ban. The judge wouldn’t even allow Colón to testify as to Miguel’s reputation as a mild-mannered person, although she had been called as a character witness! We can expect more of such high-handed rulings from the bench today, as more faculty witnesses take the stand.

From the very beginning, when the judge announced that he would not permit the defense to raise any issues concerning the First Amendment and the right of free speech, this has been a rigged trial. The prosecution leads its witnesses to cynically claim they were “protecting” free speech by banning it from anywhere inside the campus, but the moment the defense begins to mention this right, the assistant D.A. pops out of her seat to object and the judge working in tandem rules it out of order. This happened so often Monday that the prosecutor seemed to be some kind of jack-in-the-box.

When defense attorney McGuire objects to pointless testimony that campus cop White is a single parent who has raised two children and taken care of a disabled brother, his objection is overruled. But when prosecutor Gensler objects to testimony that Miguel Malo did not have a violent reputation, that the 5 foot 2 inches tall Malo was attacked by two much larger police, and that there is specific evidence of his limited English proficiency, so that he may not have understood whatever it is that was said to him, the D.A.’s objection is upheld and the testimony blocked or stricken from the record.

The campus cops cynically present the most ludicrous claims, such as Hostos security chief Bernabe’s story that he was “concerned most about mothers with strollers” in the atrium, and “god forbid that a baby should drop on the floor” as a result of a hypothetical disturbance during registration! (The only actual disturbance came when his security goons wrestled the defendant to the floor to prevent him from talking with students.) On Monday, CUNY security officer Sean White claimed that Malo dropped to the floor, then looked at White in the eye and kicked him in the groin; thereupon, Malo supposedly “flipped over, then flipped back,” again “established eye contact” and again kicked White, all in the space of a few seconds. 

Contradictions in the prosecution’s case keep piling up. Sergeant White claims to have suffered severe pain from being kicked in the groin, although he only noticed this later in the campus security office, and even though a sonogram at Lincoln Hospital failed to show any injury. Campus cop Cruz earlier claimed that he was injured by a loose handcuff, but White stated that one cuff was on Malo while White held the other the entire time. This didn’t stop the judge from letting the charges of 3rd degree assault, 2nd degree assault and attempted 3rd degree assault stand. Miguel was standing outside the cafeteria, talking with students, when he was jumped from behind by two burly cops, and yet he is charged with harassment and disorderly conduct.

Miguel Malo disrupted nothing, harassed nobody, assaulted no one. He is “guilty” only of exercising his right to communicate with the students who elected him as their representative, and of opposing administration plans to carry out a racist “ethnic cleansing” of the City University in the name of promoting “excellence.” As a result, almost all Spanish-language and ESL courses have been eliminated by administrative fiat at Hostos (a college set up explicitly to service a Spanish-speaking community), without faculty, students or staff having any say in the matter. And to enforce their diktat, CUNY tops have turned Hostos into a miniature police state, where the right to free speech is subject to whims of the petty dictators of the Space Reservation Committee.

Miguel Malo is innocent of each and every charge against him, while the cops are guilty of attacking him. This judicial proceeding of the bourgeoisie’s injustice system has been a cynical farce, a theater of the absurd, worthy of Czech writer Franz Kafka’s harrowing novel of judicial arbitrariness, The Trial. We shall see how the drama in Bronx Criminal Court proceeds.

We urge supporters of Miguel Malo to attend the trial taking place in Jury Room 7 of the Bronx Criminal Court, 215 East 161st Street in the Bronx, located one block east of Grand Concourse (take the 4 or D trains to the 161st Street stop).

URGENT: It takes money to effectively defend Miguel Malo. The state has unlimited resources. Miguel must rely on donations from his supporters. Right now, the defense is paying hundreds of dollars a day to obtain overnight transcripts of the court proceedings, which are vital to an effective cross-examination. Funds are urgently needed to pay for this. Please send as large a donation as you can to: Miguel Malo Legal Defense Fund, c/o Susan DiRaimo, 252 Fieldston Terrace, Bronx, NY  10471.

See also:
Defend Miguel Malo! (November 2003) 
Day One of Miguel Malo Trial  (1 December 2003) 
Day Two of Miguel Malo Trial  (2 December 2003) 
Day Three of Miguel Malo Trial  (3 December 2003) 
Day Four of Miguel Malo Trial  (4 December 2003) 
Day Five of Miguel Malo Trial  (5 December 2003) 

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