STATE OF NEW YORK : COUNTY OF TOMPKINS CITY COURT : CITY OF ITHACA

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PEOPLE OF THE STATE OF NEW YORK MOTION FOR DISMISSAL IN -vs- FURTHERANCE OF JUSTICE TIMOTHY G. ALLEN, LOURDES BENERIA, BRIANA BINKERD-DALE, DAN BROWN, ABIGAIL COHN, KERRY COOK, ROYAL D. COLLE, MARY S. CROWLEY, STUART DAVIS, BRETT deBARY, VICTOR deBARY, LAURIE E. DRINKWATER, PAMELA DRIX, SEVERIN DRIX, JENNIFER EASTER, DAN FREDERICKSEN, MARY KOPONEN BARBARA LANTZ, JANE MARIE LAW, MARY LOEHR, JOANNE LUKS, BARBARA LYNCH, JOSEPH MARTIN, JOHN PAUL MEAD, JANE MT.PLEASANT, BENJAMIN NICHOLS, DANI NOVAK, A. REEVE PARKER, JUDITH PIERPONT, ELIOT RICH, ROBERT RICH, CAROL G. ROSEN, DAVID ROSEN, ELIZABETH SANDERS, PAUL SAWYER, NANCY SCHULER, ANTONIA SHOUSE, DIRK TRACHY, WILLIAM TROCHIM, ELIZABETH VANCOURT, HELENA MARIA VIRAMONTES, and MARVIN WARREN,

Defendants.

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STATE OF NEW YORK )

) ss.:

COUNTY OF TOMPKINS )

RICHARD M. WALLACE, being duly sworn deposes and says:

1. 1. I am an attorney duly licensed to practice my profession in the State of New York; I represent the defendants in the within action and am fully familiar with all prior proceedings heretofore had herein.
   2. This affidavit is made by your deponent because it involves questions of law with which the defendants are not familiar; because of the defendants’ right not to make any statements which might tend to incriminate them; and because it is based upon my review of papers and documents heretofore filed in these proceedings.
   3. The allegations herein made on information and belief are based on your deponent’s review of these matters, the papers and pleadings had herein, discussions and correspondence with the defendants and prosecutor and investigation of this case.

THE SO-CALLED “AMNESTY AGREEMENT”

1. 1. Annexed hereto and incorporated herein as Exhibit A is what your deponent fairly believes to be a true copy of the so-called “Amnesty Agreement” (hereafter “agreement”). At the Pre-trial Conference on August 30, 2005, the People agreed, in open Court, to provide me with a copy of the original agreement and signatories, together with any correspondence causing the list to expand or contract. Despite repeated inquiries, your deponent has not yet been provided with that documentation. Accordingly, the attached exhibit is from the Cornell University News Service article dated July 18, 2005.

The Agreement Plainly States “The Violations Cited on July 15, 2005 through July 18, 2005 Will Be Forgiven”

1. 1. The construction of the agreement is very clear. The first paragraph of the agreement, the “Whereas Clause”, expressly states that the parties to the agreement are the “Cornell University Administration” and “those who have opposed the parking lot on University Avenue”. Paragraph 8 of the agreement then goes on to clearly state the obligations of Cornell, that with the signing of the agreement on July 18, 2005 the Administration will speak with the appropriate “authorities” regarding the Day Hall in April 2005. The agreement makes no promises to the outcome of those discussions. However, regarding the trespass violations at the Redbud Woods between July 15, 2005 through July 18, 2005, the agreement does make a promise. The agreement is clear and express in saying the following:

“The violations cited on July 15, 2005 through July 18, 2005 will be forgiven.”

1. 1. On information and belief, the plain meaning of this agreement is clear that all of the trespass tickets will be “forgiven”. Frankly, that does not even mean an ACD. It means a flat out dismissal. That was the commitment made by the university to “those who have opposed the parking lot on University Avenue”, signed by University President Hunter R. Rawlings, III on July 18, 2005.
   2. On information and belief, the university, the “victim” in this case, has requested that their agreement be given full force and effect by this Court.
   3. It is respectfully submitted that the Court should now give full force and effect to both the plain meaning of the agreement and the stated wishes of the victim.

Actually Signing the Agreement Had No Bearing on Who Made the Final “Amnesty” Cut.

1. 1. Annexed hereto and incorporated herein as Exhibit B is the only document I did receive from the People, having obtained the same after noticing it in the People’s file at the aforesaid Pre-Trial Conference on August 30, 2005. Upon request a copy was immediately made.
   2. Exhibit B discloses 22 alleged signers whose names were typewritten in the left hand column.
   3. On information and belief, based on the handwritten names in the right hand column, the list of 22 alleged signers was expanded to include Mr. Calvin Crolle followed by the notation “George ok’d”, and also the name which appears to be Sarah Ousley, for a new total of 24 “signers”.
   4. On information and belief, Calvin Crolle and Sarah Ousley were not in fact signers, but were added to the list after the fact.
   5. On information and belief, Wendy Petti (discussed below) was also allowed to sign after the fact. On information and belief, the above people, plus all of the people who signed the original list, were in fact offered an ACD.
   6. On information and belief, other defendants, whose names were neither on the original list nor on the subsequent expanded list, were also offered an ACD. Specifically, without limitation, defendant Ryan Mauk, who neither signed the list nor had his name added to Exhibit B, managed to somehow place his name before Susan Murphy, who then placed his name before George Dentes, resulting in an ACD offer for Mr. Mauk from the People.
   7. On information and belief, Ryan Mauk subsequently took full advantage of this offer and obtained the benefit of an ACD in City Court through his attorney Diana Cramer on or about August 30, 2005.
   8. On information and belief, Ryan Mauk’s name was added to the list at the request of Susan Murphy, which in turn was granted by the People with the approval of George Dentes upon request of Susan Murphy, all as evidenced by e-mail from Mr. Dentes to Susan Murphy dated August 25, 2005 and annexed hereto as Exhibit C (see Point 2 “Amnesty Signers on Vacation”).
   9. Your deponent has no knowledge as to what equities entitled defendant Mauk to become eligible for an ACD without either signing the list or having his name placed on the list, except that he was on “vacation”.
   10. On information and belief, based on conversations with my clients, there were many other protestors cited for trespassing who would have very much liked to have their name placed on the list after the fact, or been given the benefit of an ACD like defendant Mauk, but had no way of knowing that was one of their choices.
   11. On information and belief, based on correspondence and conversations with my clients, at least one other protestor listed on Exhibit B, named Wendy Petti, managed to have her name included after the fact, but only after a great deal of effort, determination and just plain luck. Wendy Petti’s saga, in pertinent part, is as follows: “My entire purpose had been to support the students in their protest and to try to protect the woods, and if the students had decided to leave the woods and to sign the agreement, and if I too could join them in signing the agreement, then it seemed to me like this would be a good thing to do.

First thing the next morning I made phone calls to try to find out who had the agreement. I was passed from one person to another by phone and e-mail. Meanwhile my own family was dealing with a medical emergency and we all spent several hours at the emergency room. I finally received a phone call in the afternoon from Kent Hubbell, Dean of Students, who told me that the agreement was in Susan Murphy’s office. So I left my family still finishing up in the emergency room and went over to campus to see if I could still sign the agreement before everyone left for the day. I arrived just before 4 p.m.

I spoke first with Susan Murphy’s assistant who told me she thought it was too late for me to sign the agreement, that the names of the non-signers had already been sent downtown in the morning. I explained that I had just learned of the deadline as the deadline was expiring, while I was in a meeting with lawyers, and that I had never been presented with an opportunity to sign it, and that I had tried since first thing in the morning to find out where to sign it. As we were speaking, Susan Murphy came into the office and she also said there had been a clear deadline of Monday evening and I re-explained my situation to her. I tried to point out that community residents like myself had never been informed of the option to sign, and that I was not the only one who would have appreciated the opportunity if it had been presented to us. Meetings and discussions had been going on throughout Monday and we had not all hung around outside the fence all day to find out what was going on. I said that the meetings had been with the students and I had respectfully stayed away from the meetings even though I had come by the woods several times that day. As far as I had known, residents like myself had not been invited or allowed at the meetings. No one had ever told me otherwise. (I only learned in the meeting with the lawyers that some community residents had been there.) The University had our contact information and I had assumed if they were presenting an option for amnesty to the trespassers that they would have contacted all of the trespassers, and they had made no attempts to do this. The burden had been on us to find out and come to them, and this did not seem right to me, since some people had not yet even now, late on Tuesday, learned about the agreement. By the way, I had checked the Redbud website Monday daytime and evening and it was not updated in a timely fashion to get the word out about signing the agreement… I sort of feel like we the “outsiders” were let down in that regard, too. But even if the information had been posted on the website in time to make a difference, the burden should have been on the administration to contact all trespassers with the offer, rather than to let them hear about it by happenstance. They were not thinking about equal treatment for all trespassers; they were just thinking about clearing the rabblerousers out of the woods.

I think there may be several reasons that Susan permitted me to sign the agreement belatedly even while emphasizing that it was supposed to have been signed the previous evening:

(1) I was a Cornell alum and she probably didn’t want to start getting the alums riled up. (2) I had made earnest efforts to sign the agreement ever since learning about the option at the lawyers’ meeting the preceding evening. (It helped that I had contacted the Dean of Students’ office first thing Tuesday morning instead of waiting until the afternoon.) (3) It probably helped that I’m a respectable-looking 50-year-old mom instead of, let’s say, a local teenager.

If Susan had not happened to be in the office right then I don’t know if her assistant would have permitted me to sign. Clearly they had not planned on letting anyone sign past Monday evening, even though they had made no efforts to disseminate the information beyond those they happened to run into inside the fence.

Susan marked the time of my signing the agreement (4 p.m. Tuesday) and said that she would send a request for my name to be included with those being offered amnesty. But my court date stayed on the docket. So I went to court as scheduled and explained that I did not feel ready to plead guilty or not guilty since I was still waiting to hear if I was being offered amnesty. I think all of this is relevant as the lawyers pursue possible amnesty for all. I think it is terribly unfair that a number of community residents were completely out of the loop and given no opportunity to sign. I know of an elderly gentleman who spent time in the woods late Sunday evening to show solidarity, and he never knew about Monday’s agreement. He told me afterward that he would have signed if he had known. It makes no sense to me that people are being treated differently according to whether or not they signed, considering that a number of people did not make a decision to rebuff the offer; they never saw the offer. They had already left the woods. It sounds like there was a lack of clarity in the administration’s dealings with the faculty and pretty much a lack of thought about the community residents who had already left. It makes a sorry mess even sorrier.

The “elderly gentlemen” is Dani Novak, a math professor at Ithaca College.

1. 1. On information and belief, although the People have either failed or refused to provide your deponent with the original list, the number of actual original signers is significantly less than the number of people offered an ACD.

Many Defendants Were Unaware of or Without Access To the “Amnesty Agreement”

1. 1. Your deponent asked my clients about the extent to which each was aware of the existence of the so-called “Amnesty Agreement”, the extent to which their ability to sign the agreement, (e.g. access) was impaired and also what if anything they were told about the importance of signing or not signing the agreement.
   2. Several of my clients responded that they had no access to the agreement because they were not even aware of its existence until well after the fact.
   3. Other clients, for example Timothy Allen, had to leave. Mr. Allen was on the site on Monday, July 18, 2005, but needed to leave the site by 10:00 a.m. to go to work and did not have time off available on Monday until 8:30 p.m. Monday night, well after the agreement had been signed. The next day, Timothy Allen had the impression that he did not need to sign in order for his trespass violation to be forgiven and doesn’t understand why that portion of the agreement which clearly states “the violations cited on July 15, 2005 through July 18, 2005 will be forgiven”, with no distinction between signers and other protestors, has not been given full force and effect.
   4. Similarly, regarding defendant Paul Glover, he was unavailable to sign because his mother died on July 17, 2005 and had to travel to Philadelphia, where he now lives. Defendant Glover’s letter is annexed hereto and incorporated herein as Exhibit D.
   5. It is respectfully submitted that whether it is defendant Timothy Allen having to go to work or defendant Paul Glover having to travel to Philadelphia because his mother died, there is no material difference between their circumstances and those of defendant Ryan Mauk, who apparently was on “vacation”. QUERY: Why should some be allowed to “sign” (i.e. have their names added to) the list after the fact but not others?
   6. Defendant Anna Ritter was present on Monday when Hunter Rawlings was present at the construction site to take signatures on the agreement. She reports the following:

“Hunter Rawlings and the others came in and set up a little area for signers to come and add their names to. They didn’t walk through the woods to ask the people mingling about if they wanted their signature added. I was in the woods at this time and never saw the event take place. They came and left in a jiffy.”

In other words, even people who were physically present when signatures were being obtained were not clear that the opportunity to be added to the so-called “Amnesty Agreement” was available to them.

1. 1. In addition, it would appear that the opportunity to sign was for a very brief window of time.
   2. On information and belief, defendant Marion Boratynski was present on Monday July 18th, the day of the signing for a candlelight vigil and left the site completely unaware of the availability of an agreement until finding out about it the next day when it was all done.
   3. Accordingly, many of your deponent’s clients failed to sign only because they were either unaware of the opportunity to sign the agreement or unavailable at the appropriate place and time.

Some Defendants Thought The “Amnesty Agreement” was Only for Students Continuing to Occupy Redbud Woods

1. 1. There is another sub-group of your deponent’s clients, many of them Cornell professors directly involved in the negotiations, who were themselves unclear about the need to sign the agreement.
   2. Specifically, in response to my questions set forth above, by way of example, some of my clients’ responses were as follows: Prof. William M. K.Trochim said the following: “Although I took part in many of the negotiations both in June and July, was present at the signing, and saw all of the major university officials there and subsequently, no official of the university ever suggested that it was relevant for me to sign it.”

Prof. Jane Marie Law had the following response:

“It was very unclear who the agreement was for. I felt the university was using this as a divisive moment to split our community unity.”

Prof. Reeve Parker and Prof. Joanna Gay Luks had the following response:

“I would say that it wasn’t clear to anyone at the time. The implication was, however, that Cornell was willing to drop the charges. (After all, the violations were incurred in the spirit of protest, not in the literal sense of trespassing since we were escorted onto and off of the site by police officers.) The letters in today’s Journal from Tommy Bruce and George Dentes confirm the fact that this still isn’t clear to the Cornell administration or the DA’s office!”

1. 1. Many of the faculty participants echoed the same sentiments. Prof. Trochim is perhaps the best example, relating an almost parental concern for the young people occupying the woods. The Court is referred to Prof. Trochim’s individual statement filed herewith.

Fundamental Fairness

1. 1. On information and belief, it is fundamentally unfair to offer an ACD to a subgroup of people whose actions were not substantively distinguishable from many others similarly situated, merely because that subgroup happened to have been present on a particular day and at a particular time when the opportunity to sign a document was made available to them.
   2. On information and belief, it is fundamentally unfair to give disparate treatment to people similarly situated, when several of the protestors who are now being refused an ACD reasonably believed it was unnecessary to sign the Amnesty Agreement in order to be “forgiven”.
   3. On information and belief, it is fundamentally unfair to give disparate treatment to similarly situated defendants when many of them were not even aware of the existence of the so-called “Amnesty Agreement” until after the opportunity to sign had passed.
   4. On information and belief, it is fundamentally unfair to give disparate treatment to similarly situated defendants, because some lacked either the persistence or the awareness that lobbying Susan Murphy and/or the Tompkins County District Attorney might be a way of obtaining the benefit of being “deemed” signatory after the fact, as opposed to those who had such awareness or tenacity, including without limitation Wendy Petti, Sarah Ousley, Calvin Crolle and Ryan Mauk.
   5. On information and belief, it is fundamentally unfair to give disparate treatment to similarly situated defendants, given the incredible lack of clarity as between the university, the District Attorney and the police, ranging from the initial failure to file all of the charges with this Court, and culminating in the very public dispute between the university and the District Attorney as set forth in the Ithaca Journal this past Saturday October 8, 2005, a copy of which I annex hereto as Exhibit E.

The De Minimus Nature of Most of These Violations Mitigates in Favor of Dismissal

1. 1. It would be just and fair to discontinue this prosecution because many of the protestors believed that if they left the site before 8:00 p.m., it was unnecessary to sign the so-called “Amnesty Agreement” in order to have their charges “forgiven”, a reasonable belief given the de minimus nature of the alleged conduct.
   2. Your Honor has several individual letters filed herewith for the Court’s review. A couple of examples are noteworthy.
   3. Prof. Joanna Luks describes her involvement on July 15, 2005, the first day of ticketing, as follows: “On July 15, word spread that protest over the handling of events was being formalized through the voluntary acceptance of violations for crossing the line demarcating the construction site. When I arrived at the site that afternoon, I informed the police officer at the gate that I wished to have my name included on the list of protestors. An officer opened the gate for me and escorted me to a table where another officer asked me the necessary information for filling out the violation (including the question of my awareness that in providing this information I was agreeing to being charged with a violation for trespassing); that officer handed me the violation, and the original officer escorted me to the gate on the opposite side of the site in order to let me out. The process took a total of about 5 minutes and I did not in any way damage the property that I walked on; to the contrary, I was trying to conserve it. It seemed clear to me that for those officers present, for the protestors involved, and for the Cornell administrators who had so disingenuously negotiated, this act of “trespassing” was the equivalent of signing a petition.”

1. 1. The letter of Prof. William M.K. Trochim is also commended to the Court for its consideration in this regard and is consistent with many of the faculty, who were there to support and protect the students.
   2. On information and belief, protecting students is something we should promote, not punish. WHEREFORE, your deponent respectfully requests that the trespass charges against the within defendants be dismissed in the furtherance of justice, together with such other and further relief as to the Court seems just and proper.

_______________________ Richard M. Wallace

Sworn to before me this

_ day of October, 2005.

__________________ Notary Public

-- WilliamTrochim? - 24 Oct 2005