i
COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE SIXTH APPELLATE DISTRICT
CITY OF SAN JOSE, ) CASE NO: H026491
)
PLAINTIFF-RESPONDENT, )
) SANTA CLARA CASE NO:
VERSUS ) 103-CB815401
)
JOHN WEBSTER, )
)
DEFENDANT-APPELLANT. )
)
__________________________________ )
APPELLANT’S REPLY BRIEF
________________
ON APPEAL FROM ORDER AFTER HEARING ON
PETITION OF EMPLOYER FOR INJUNCTION
PROHIBITING VIOLENCE OR THREATS OF
VIOLENCE AGAINST EMPLOYEE (CLETS)
THE HONORABLE THOMAS CAIN PRESIDING
JOHN H. WEBSTER
1556 Halford Ave., #132
Santa Clara, CA 95051
Jwebster@ix.netcom.com
appellant pro-per
ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES..............................................................................iii
STATEMENT OF CASE AND FACTS ...........................................................1
ARGUMENT........................................................................................................7
This Court of Appeal has authority and jurisdiction to rule on this case
and may accept new evidence. .................................................................7
I. Respondent’s brief contains significant factual errors...........................8
II. All of Defendants actions concerning Lt. Herbert were pursuing a
legitimate purpose....................................................................................14
III. Defendants actions prior to January 2002 were clearly protected free
speech. .......................................................................................................16
IV. Demanding testimony from Lt. Herbert is not harassment...............17
V. The driving and parking of the Billboard Truck around City Hall and
the Police Department was not even targeting Lt. Herbert.................18
VI. Mr. Webster’s stopping by Lt. Herbert’s house was not harassment
or even threatening in any way...............................................................20
VII. Judge Cain’s snap decision that there was an actual “threat of
violence” is invalid...................................................................................23
SUMMARY: .................................................................................................26
CONCLUSION...................................................................................................28
PREVENTION OF FAIR TRIAL: .............................................................28
ERROR IN LAW – EXCLUDED EVIDENCE: ......................................28
ERROR IN LAW – VERDICT UNSUPPORTED BY EVIDENCE.....29
iii
TABLE OF AUTHORITIES
CASES
(Gomes v. Fried (1982) 136 Vsl.Spp.3d 924, 933 [186 CalRptr. 605, 610],
...........................................................................................................................15
STATUTES
Code Civ. Proc. §527.8............................................................................... 14, 24
Code Civ. Proc. §657.1..................................................................................7, 28
Code Civ. Proc. §657.6..................................................................................7, 28
Code Civ. Proc. §657.7..................................................................................7, 29
Code Civ. Proc. §909.............................................................................. 7, 20, 30
Evidence Code section 452, subdivision (d).....................................................1
MISCELLANEOUS
McVeigh Letter Shows Anger Over Waco Fire, San Jose Mercury News (9
April 1997), p. 6A............................................................................................23
1
STATEMENT OF CASE AND FACTS1
Defendant John Webster believes that in 1990 a unit of the San Jose
Police Department including Officer Brenda Wells, now Lieutenant Brenda
Herbert, was involved in organized criminal activity during a sting
operation in conjunction with the US Postal Inspection Service (hereinafter
“USPIS”). During that sting Officer Wells, in an undercover capacity
talked extensively with defendant Webster in a series of taped phone
conversations. As a result of that sting defendant Webster received a felony
conviction for crimes allegedly committed during those conversations.
Defendant Webster further believes that in that sting the police and
the USPIS used illegal active split entrapment and then hid and falsified
evidence, including extensive editing of the tape recordings of those phone
calls, all to cover up their illegal activity. Judge Thomas Cain had aided in
hiding the details of that sting by sealing the Justification for the Search
Warrant to Defendant’s residence.2
According to the plaintiff, Mr. Webster first committed any act in
furtherance of his beliefs in September 1994 when he had a conversation
with San Jose Police Lieutenant Glenn McCourtie where he claimed that he
1 The “facts” are based upon the evidence tendered by the City of San Jose in its Petition
for Injunction and supporting declarations. Defendant respectfully requests that this court
take judicial notice of those pleadings on file in this matter pursuant to Evidence Code
section 452, subdivision (d).
2 This is taken from Recorders Transcript July 25, 2003, pg. 21 line 21 plus what it means
to seal a document.
2
had been wrongly arrested and prosecuted and that Brenda Herbert was
primarily responsible. Lt. McCourtie was concerned for Ms. Herbert, and
he immediately told her of the conversation.3 (McCourtie Declaration
[CT:16-17]) A year later, Mr. Webster went to the San Jose Police
Department and dropped off a flyer offering a “reward" to San Jose Police
Officers “[f]or information or actions leading to the arrest and conviction of
the Officers who participated in fabricating evidence as part of an illegal
entrapment scam run five years ago (i.e. 1990) in San Jose. (Exhibit B to
Declaration of Lieutenant Ken Ferguson [CT:37]) Five months later, in
January 1996, Mr. Webster left a petition for San Jose police officers to
sign asking for a grand jury investigation into police misconduct.
(Paragraph 5 to Declaration of Ferguson [CT:19])
Mr. Webster additionally has a web-site that contains the following
material. A review of the web-site material shows that Mr. Webster
complains of police and governmental corruption, and explains why. He
requests the address of Lieutenant Herbert as follows:
A MAILER TO THE FAMILY - When they ignore messages
to the Public.
It is becoming obvious that the City of San Jose, the police
Department, and Lt. Brenda Herbert herself couldn't care less
what the public believes so I will be attempting to inform people
in the Herbert and Wells family directly of Brenda's evil deeds.
Hopefully there will be someone who receives it that will be able
to apply family pressure on Lt. Herbert to “Do the right thing.”
3 It is important to note that nothing has happened to Lt. Herbert in the 8 1/2 years since
that conversation.
3
If anyone reading this happens to know the address of someone
living in Northern California with either of those last names
please send me the address by email at:
Jwebster@ix.netcom.com. I will only use these addresses for
sending the mailer.
(Exhibit A to Declaration of Ferguson [emphasis added])
Three years later, in July 1999, Mr. Webster sent to Lieutenant
Herbert at the San Jose Police Department a postcard, which challenged her
to a “duel to the truth!” It went on to explain:
“With polygraph tests being the weapon of choice.”
(Exhibit C to Ferguson Declaration [CT:39])
Over a year later, a campaign flyer for Mr. Webster, running as the
Libertarian candidate for State Senate, came to the police department where
Mr. Webster again accused Lieutenant Herbert of official misconduct.
(Exhibit D to Ferguson Declaration [CT:41-42])
Two years later, in June 2001, Lieutenant Herbert received a
Libertarian newsletter with an article written by Mr. Webster, once again
accusing her of falsifying evidence (Exhibit E to Ferguson Declaration
[CT:44]). That newsletter was sent to Lt. Herbert by its editor, not Mr.
Webster, so as to allow her to respond to that article. Six months later, Mr.
Webster subpoenaed Lieutenant Herbert to testify in United States Tax
Court [CT:51], again to prove that she had falsified evidence.
In August 2002, Mr. Webster began using a mobile billboard, again
accusing Lieutenant Herbert of falsifying evidence [CT:47]. This truck was
4
driven around the San Jose Police Department, the Hall of Justice, and the
San Jose City Hall. Occasionally it was parked near the Police
Administration building.
In mid February 2003, Mr. Webster with a female companion went
to the address listed in Santa Clara County Records as being owned by a
Samuel and Brenda Herbert. He rang the doorbell and knocked on the
door. The door was not answered. At a later date, Saturday February 22nd,
he again went to that address and tried a second time to contact the
residences. Again the door was not answered.
This second time he and his companion, pretending to be a couple
interested in buying property, then went to the neighbors to try and find out
exactly who lived at the first house. A teenage neighbor volunteered the
information that the Herberts actually lived there and that the Brenda
Herbert who lived there was employed at the San Jose Police Department.
No other attempt to speak with the residents or neighbors was ever made.
(See Declaration of Samuel Herbert4[CT:7-8])
In the last act complained of, Mr. Webster wrote Lieutenant Herbert
a letter and delivered it to her place of work. (See Exhibit A to Declaration
of Samuel Herbert [CT:10-12]) The letter begins that it was written at the
4 Several points of clarification are in addition to Samuel Herbert’s declaration. This
demonstrates how by Plaintiff/Respondent giving less information that they can better
sell paranoia to the courts. Obvious questions left unanswered by their version is: How
did Defendant come to know where Lt. Herbert lived and when did he actually discover
this information?
5
suggestion of Assistant San Jose Police Chief Thomas Wheatley5. The letter
proclaims Mr. Webster's innocence and accuses her of falsifying evidence.
It explains why he acted the way he did. He states that he believes that
Lieutenant Herbert only "reluctantly" participated in the fabrication of
evidence. He states that "I can't prove that without getting you on the
witness stand first."
He also states: “I see you as somewhat of a victim yourself; a victim
of a system that punishes good cops and rewards the police officers that are
willing to sell their soul to get the criminal”. He suggests that they write a
book together about the experience. He states that even if he gets a
monetary settlement due to the falsification of the evidence that it "will not
buy my silence." There is no mention of any violence of any kind. Enclosed
with the letter was a flyer [CT:13-14], which mirrored the web-site.
Included was the following:
Bad Cops turn good citizens into Terrorists.
When Law Enforcement Agencies like the USPIS and Police like Lt.
Brenda Herbert hide or alter evidence to supposedly get the "bad
guys" they will unavoidably also destroy the lives of a few good
citizens. Add to that our local court's willingness to cover-up police
wrong doing as long as it was done "with good intentions." The once
"good citizen" is left with no way to get a peaceful redress of
grievances. When this occurs repeatedly that "Government Gone
Bad" loses its legitimacy and gives moral justification for its
overthrow by force. This is what was happening to cause the
Oklahoma bombing where hundreds of innocent people were killed
5 This letter was written at the suggestion of a high San Jose Police official and yet the
City cites this as an example of ongoing harassment. Talk about creating a case from
nothing.
6
as "collateral damage" in an effort to send a message to the FBI and
BATF for violating people's rights.
Is a Bad Cop like Lt. Brenda Herbert putting your freedom in
danger? Absolutely!
If you have any contact with Lt. Herbert or the San Jose police
Department please urge them to come clean and to admit to the
hiding and alteration of evidence that has occurred in the past.
Nowhere in the pamphlet was Lieutenant Herbert directly or even
indirectly threatened with any sort of violence. What Defendant did
threaten is that eventually Lt. Herbert will be put on the witness stand and
the truth will come out [letter to Lt. Herbert, CT:11, end of 2nd paragraph].
7
ARGUMENT
This Court of Appeal has authority and jurisdiction to rule on this case
and may accept new evidence.
Code Civ. Proc. §909.
In all cases where trial by jury is not a matter of right or where trial
by jury has been waived, the reviewing court may make factual
determinations contrary to or in addition to those made by the trial
court. The factual determinations may be based on the evidence
adduced before the trial court either with or without the taking of
evidence by the reviewing court. The reviewing court may for the
purpose of making the factual determinations or for any other
purpose in the interests of justice, take additional evidence of or
concerning facts occurring at any time prior to the decision of the
appeal, and may give or direct the entry of any judgment or order
and may make any further or other order as the case may require.
This section shall be liberally construed to the end among others
that, where feasible, causes may be finally disposed of by a single
appeal and without further proceedings in the trial court except
where in the interests of justice a new trial is required on some or all
of the issues.
Another pertinent code is Code Civ. Proc. §657
The verdict may be vacated and any other decision may be modified
or vacated, in whole or in part, and a new or further trial granted on
all or part of the issues, on the application of the party aggrieved, for
any of the following causes, materially affecting the substantial
rights of such party:
1. Irregularity in the proceedings of the court, jury or adverse party,
or any order of the court or abuse of discretion by which either
party was prevented from having a fair trial.
6. Insufficiency of the evidence to justify the verdict or other
decision, or the verdict or other decision is against law.
7. Error in law, occurring at the trial and excepted to by the party
making the application.
8
I. Respondent’s brief contains significant factual errors.
A. Under the heading “IV FACTUAL BACKGROUND”, page 4, bottom
of page, Respondent states:
The facts of the threats and harassment do not appear to be
disputed in any significant way by Mr. Webster {footnote:
Indeed, Mr. Webster confirms his activities in his February 22,
2003 letter. [CT:10-12]}. Instead, he argues that the threats and
course of conduct were justified and served a legitimate purpose,
thereby precluding the injunctive relief sought by the City.
While much of the actions of Defendant are not in dispute, other
than that many of the related facts that Respondent must have known
about were left out to carefully spin their case of paranoia for the courts,
calling Defendant’s actions “harassment” has always been strongly
disputed.
And there simply is nothing that Defendant has stated in any media
that constitutes any kind of threat to Lt. Herbert6, her coworkers or
neighbors. Calling his actions “threats and harassment” in a section for
Factual Background is going pretty low even for a City Attorney.
Also in Appellant’s Opening Brief the question as to whether there
was a “Credible threat of violence” was split into two questions: Was
there no legitimate purpose being served by the conduct? Would a
“reasonable” person be placed in fear for his or her safety? Appellant has
argued that both conditions fail but Respondent’s misinterpretation
9
comes from the following section that starts at the bottom of page 9 of
that Opening Brief:
That portion of the statute [of CCP §527.8(b)(2)] and the
intent of the Legislature is clear: if there is a legitimate purpose
in the statements or conduct then it is immaterial whether or not a
reasonable person is placed in fear for his or her safety.
Respondent then mixes in the “threats” word with “course of
conduct” as if it is a given. Again there were no threats.
B. Under “V. ARGUMENT A.”, page 9, Respondent states:
In fact, Mr. Webster does not dispute that he intentionally set
about to harass Lt. Herbert.
Defendant’s intentions from the beginning have been to confront
her with his accusations, and to encourage her to confess. There was no
intent to harass, in fact as shown in his February 22nd, 2003 letter to Lt.
Herbert (CT:11, 3rd paragraph) he goes out of his way to make it as
painless as he can for her to confess.
C. Under “ARGUMENT A (1)”, bottom of page 14 continuing to page 15,
Respondent states:
This ongoing campaign of Appellant was justified by him as an
effort to get Lt. Herbert to testify under oath that she, in fact,
altered tapes in connection with the 1990 criminal prosecution
against him. This rationale ignores the fact that Brenda Herbert
testified under oat at Appellant’s preliminary hearing on June 18,
1990 and at that time she could have been cross-examined about
the tapes [CT:26-27], and that she stated under oath in a
declaration dated January 3, 1992, that she did not alter the
6 The only threat that Mr. Webster has stated is that eventually Lt. Herbert will be put under oath
and questioned about her role in that 1990 sting, and that the truth will come out.
10
recordings of her telephone conversations with the Appellant that
were used in the prosecution of him. [CT:26] (emphasis added)
This simply is inaccurate; prosecution at the Preliminary Hearing
never introduced the actual content of the tapes or their transcripts so they
could not be brought up by defense. In that hearing Defense is not
allowed to introduce new evidence. In the actual trial though the tapes, if
they had not been altered, would have been used to show blatant
entrapment and that Officer Wells (who later married becoming Officer
Herbert) was driving the conversations. She was demanding details of
Defendant’s past sexual history with children and demanding promises of
future sexual encounters with children for her. Defense had responded by
giving exaggerated past encounters he had had (that were way past the
statute of limitations) and he promised only impossible future encounters.
After the editing of the tapes she is only a passive listener and Defense is
initiating “offers” instead of just giving responses. Making impossible
“offers” is still against the law. Note that at that time only Defense’s
Public Defender had actually listened to the tapes and he had not even
prepared transcripts for Defense to read (CT:33, under “Tape
transcripts:”). From Defense talking with the PD though, it was known
that the conversation was missing from the tapes where “Barbara”
(Officer Wells undercover identity) solicits sex with the 10 year old boy
11
from Mr. Webster, and where he adamantly refuses (CT:10, letter to Lt.
Herbert, 5th paragraph).
As far as the January 3, 1992 sworn statement of Officer Herbert,
keep in mind that this was a sworn statement given to prevent the tapes
from being analyzed by a forensic tape expert. There was nothing more
to lose for making the big lie to prevent the tapes from being analyzed. If
the lie was accepted she would not be found out; if the tapes were
analyzed she would go to jail anyway. Plus, the Judge involved (Daniel
Creed) apparently was known for not releasing tapes for analysis unless
he was legally forced into doing it.
D. In Respondent’s brief (page 24 bottom of page continuing to page 25) is
the following:
As evidenced by Mr. Webster’s own words, the deposition
was to be no more that another vehicle of harassment. It has
apparently been his desire for years to put Lt. Herbert “on the
stand” to confront her with his accusations that she altered
evidence against him. Mr. Webster has persistently sought to
provoke Lt. Herbert so that she might sue him for defamation to
allow him to re-litigate issues that were rendered moot by his
plea.
Here Respondent again confuses “making accusations of criminal
conduct to a criminal” with “harassment”. If this were so, the Justice
department would be guilty of harassment on a continual basis.
12
Next, a deposition of Lt. Herbert would not consist of making
accusations to her but would consist of specific questions to her about her
role in that 1990 sting and her interaction with the US Postal Inspection
Service. Mr. Webster is confident that her answers will show that that
sting was illegal and utilized the hiding of evidence and the premeditated
alteration of tape-recorded evidence. Mr. Webster believes this was an
example of Organized Criminal Activity being carried out under the guise
of law enforcement.
Finally, the victims of that sting, of which Mr. Webster claims to
be one, allegedly had their Civil Rights violated big time. That’s a
serious Federal offense committed by the Law Enforcement agents in that
sting and there is no statute of limitations. The fact that the victims
accepted plea bargains is totally irrelevant. Mr. Webster’s efforts then
have more to do with outing those criminals, who happen to be wearing
badges and robes, in order that they may be prosecuted for their crimes,
rather than with the re-litigation of his own 1990 conviction.
E. In the conclusion to Respondent’s Brief, page 27 they really pull “facts”
out of thin air with the following statement:
The City of San Jose had more than adequate grounds to seek
to protect its employee and workplace in the face of threatening
statements and conduct. This is particularly true when the
statements were intended to evoke senseless, tragic violence
against government employees. (emphasis added)
13
Are we talking about the same case here? There were no
threatening statements and conduct. And in all of Mr. Webster’s flyers,
publications, and web page he is obviously intending to and working to
prevent senseless, tragic violence against the government and its
employees as well as the public at large. Is it possible that Respondent is
alluding to incidents of harassment and threats of violence carried out by
Lt. Herbert’s co-workers and fellow police officers against Lt. Herbert
that might be a result of Mr. Webster’s Free Speech message? Is that why
it is so important to silence him?
Mr. Webster believes that if the Government continues on its path
of “The Ends Justify the Means” and to hell with peoples Rights, that
eventually the People will revolt against that Government, and it will not
be a pretty picture. He further believes that the only way to prevent this is
to return our Government to being the Servant of the People not their
Master; and to restore the confidence of the People in a Government
based on Law that respects the Individual Rights of its citizens.
An obvious first step in achieving this is to show the public that
even where Law Enforcement personnel and Judges violate the Rights of
individuals they will be held accountable for their actions and punished
for their crimes.
14
II. All of Defendants actions concerning Lt. Herbert were pursuing a
legitimate purpose.
The applicable civil code used by Plaintiff/Respondent to get the
Temporary Restraining Order and Injunction against Mr. Webster is as
follows: Code Civ. Proc. §527.8:
(a) Any employer, whose employee has suffered unlawful
violence or a credible threat of violence from any individual, that
can reasonably be construed to be carried out or to have been
carried out at the workplace, may seek a temporary restraining
order and an injunction on behalf of the employee prohibiting
further unlawful violence or threats of violence by that
individual.
(b) For the purposes of this section:
(1) "Unlawful violence" is any assault or battery, or stalking
as prohibited in Section 646.9 of the Penal Code, but shall not
include lawful acts of self-defense or defense of others.
(2) "Credible threat of violence" is a knowing and willful
statement or course of conduct that would place a reasonable
person in fear for his or her safety, or the safety of his or her
immediate family, and that serves no legitimate purpose.
{emphasis added}
It is clear that Lt. Herbert has suffered no “unlawful violence”, as
per CCP §527.8 (b)(1), from defendant. This is particularly true with the
City discounting any “stalking” 7 (Recorder Transcript June 13, 2003 page
15 through page 17), then the remaining issue is limited to whether there
exist a “Credible threat of violence” as defined in CCP §527.8 (b)(2).
7 It is clear that there was no stalking anyway. The occasional parking of the truck with
8’ X 10’ signs across from the Police Administration building clearly was to give Mr.
Webster’s message to all of the police officers and personnel there and was not targeting
Lt. Herbert specifically.
15
An important part of this definition is the requirement that the
statement or conduct “serves no legitimate purpose”. That portion of the
statute and the intent of the Legislature is clear: if there is a legitimate
purpose in the statements or conduct then it is immaterial whether or not a
reasonable person is placed in fear for his or her safety.
Exposing police corruption and misconduct certainly serves a
legitimate purpose.
“It is our opinion that the plaintiff is within the ‘public official’
classification. Although as a patrolman he is ‘the lowest in rank of
police officials’ and would have slight voice in setting departmental
policies, his duties are peculiarly ‘governmental’ in character and
highly charged with the public interest. It is indisputable that law
enforcement is a primary function of local government and that the
public has a far greater interest in the qualifications and conduct of
law enforcement officers, even at, and perhaps especially at, an ‘on
the street’ level than in the qualifications and conduct of other
comparably low-ranking government employees performing more
proprietary functions. The abuse of a patrolman’s office can have
great potentiality of social harm; hence, public discussion and public
criticism directed towards the performance of the office cannot
constitutionally be inhibited by threat of prosecution under State
libel laws.” (Emphasis added.)
(Gomes v. Fried (1982) 136 Vsl.Spp.3d 924, 933 [186 CalRptr. 605, 610],
quoting Coursey v. Greater Niles Township Publishing Corporation (1968)
40 Ill.2d 257 [239 N.E.2d 837, 841])
Yet when Judge Cain refused to allow the deposition of Lt. Herbert
he denied Defense the ability to prove that there was a legitimate purpose in
Defendant’s actions rather than the “course of conduct” of harassment, as
Plaintiff/Respondent would have us believe.
16
III. Defendants actions prior to January 2002 were clearly protected
free speech.
In Plaintiff’s arguments [CT:123; line 3] their Attorneys state:
For years, Webster had carefully navigated his course of
harassment to arguably qualify his actions as protected speech
and take advantage of that safe harbor. Even if the statements
about Lt. Herbert that he published in the press and on the
Internet, to city residents and to her co-workers, were
defamatory, her recourse would have been to bring a defamation
action, which, Webster revealed, was his intent and desire.
An important concession made here by Attorneys for
Plaintiff/Respondent is that statements made by Mr. Webster to Lt.
Herbert’s co-workers is a legitimate avenue for “Free Speech” and that Lt.
Herbert’s proper recourse would be to bring a defamation action against
Mr. Webster.
This is important because of all the groups that Mr. Webster has
targeted with his accusations of police corruption, it seems to be the good
police officers that are most interested in having accusations investigated.
These police officers, her co-workers, want to be proud of their department
and to keep its reputation clean. And where corruption is found, they want
to have the bad cops removed from the force. By comparison the general
public and the City Government almost couldn’t care less.
Because of this, Defendant has targeted most of his efforts these past
years at the average San Jose police officer. The September 1994 incident
with Officer Glen McCourtie was only one of over fifteen separate episodes
17
where Mr. Webster talked extensively with a San Jose police officer about
the corruption and illegal activity in the S.J.P.D.’s past
IV. Demanding testimony from Lt. Herbert is not harassment.
A police officer’s normal duties include the occasional requirement
to testify under oath for private citizens, concerning facts that the officer is
aware of. An example is a police officer testifying in Civil Court about a
traffic accident or a domestic dispute. In these cases the private party is
expected to pay a standard fee for the time and travel expenses of the
officer. These fees are even collected up front at the San Jose Police
Administration building when serving a subpoena for an officer. The
officer then is expected to show up for the trial/deposition, to give truthful
answers to questions under oath and then afterwards to return to their
normal duties. This is all that was expected of Lt. Herbert.
There is only one reason that either the subpoena to appear at the tax
court for Mr. Webster in February 2002, or the subpoena to give a
deposition for this case, would cause Lt. Herbert any “Annoyance,
Embarrassment or Oppression”. That reason is if she were afraid that her
answers may bring up facts that point to herself having been involved in
Organized Criminal Activity during that 1990 sting. Perhaps on some of
the questions she would be able to invoke her 5th amendment rights against
self-incrimination. Now wouldn’t that be an interesting development.
18
V. The driving and parking of the Billboard Truck around City Hall
and the Police Department was not even targeting Lt. Herbert.
As pointed out in section III above targeting Lt. Herbert’s coworkers
and fellow police officers with accusations of her illegal activity is
a legitimate vehicle for Mr. Webster’s Free Speech, and Lt. Herbert’s
recourse, in Respondent’s own words [CT:123; line 3], would be to bring a
defamation action against Mr. Webster.
It is fairly obvious that the driving of the billboard truck around the
Hall of Justice, the County Government buildings, San Jose City Hall,
including slowly driving through the City Hall parking lot, and even the
driving in front of the Police Administration Building, had little to do with
confronting or harassing Lt. Herbert. It did however have everything to do
with blatantly displaying Mr. Webster’s accusations of police misconduct
to City and County Government representatives and employees, police
officers and Police Administration employees, and yes even the public.
In the declaration of Officer Julie Marin [CT:54, line 3-5] she states:
The vehicle [the billboard truck] appeared to be intentionally and
strategically placed to give Webster an optimum view of employees
leaving work.
Or to put it another way, this would mean that the billboard truck
with 8’X10’ signs was intentionally and strategically placed so as to be
optimally seen by all the police officers and employees, that is to say Lt.
Herbert’s co-workers, leaving work. The intent is fairly obvious, as they
19
left work they would not be able to ignore the signs on the billboard truck
directly in front of them. Mr. Webster often would even wave to the people
to make it that much more difficult for them to ignore the billboard truck
that was in front of them.
On a number of occasions police officers leaving work had even
walked across the street to talk with Mr. Webster while he was parked in
his billboard truck. They had asked him to explain the accusations that
were on the truck’s signs and of course Mr. Webster was more than happy
to oblige.
Respondent’s Brief, starting in the middle of page 20 states:
This argument [that his actions serve a legitimate purpose] fails
for one simple reason:
The restraint sought by the City does not preclude Mr. Webster
from petitioning his government or exercising his First Amendment
rights; it merely prohibits him from engaging in certain conduct that
was a credible threat of violence and which did not advance his
asserted legitimate purpose. Mr. Webster can continue to petition
governmental officials, he can drive his truck and billboard
throughout all of San Jose with the exception of a 300 ft. radius of
the police department and Lt. Herbert’s house,… [emphasis added;
error: 300 yrds. not ft.]
Defendant believes that his driving and parking of the billboard
truck around the police department was the only place that his Free Speech
was having any real effect. He further believes that it is precisely because it
was having an effect there that Attorneys for Plaintiff/Respondent have
gone to so much trouble to misrepresent the facts to make it appear as if
20
Mr. Webster’s actions are some kind of “Credible threat of violence” to
justify the Restraining Order.
This suggests a whole set of questions that need to be asked of
Respondent: Have Lt. Herbert’s co-workers voiced reluctance to work with
someone they thought might be a “bad cop”? Was Lt. Herbert getting
suggestions that she was dragging down the reputation of the San Jose
police force and should resign? Where there any actual threats that Lt.
Herbert received that may have come from her co-workers or other police
officers. Code Civ. Proc. §909 gives this court of review the authority to
demand answers to these questions. If these things were happening then it
is clear that the motion for a Restraining Order and Injunction is bogus and
that instead Lt. Herbert should exercise her option to bring a defamation
action against Mr. Webster.
VI. Mr. Webster’s stopping by Lt. Herbert’s house was not harassment
or even threatening in any way.
While Appellant’s previous counsel simply pointed out that
Plaintiff had failed to prove that Defendant’s two visits to Lt. Herbert’s
home were either a form of harassment or any kind of threat, perhaps a
step by step analysis here would make it clearer.
Defendant was originally served with the TRO when he was
driving in his billboard truck across from the Hall of Justice on Hedding
Street [CT:65]. The officers that served the TRO, Sgt. David Yazzolino
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and his partner had asked Mr. Webster where he had gotten the address
of Lt. Herbert. Mr. Webster’s response was that he had gotten it from
the SCC. Records at the Assessors office at 70 W. Hedding. Now one
has to believe that the City Attorney would have debriefed those
officers, so Plaintiff would have known this shortly afterwards and
would have been able to confirmed that indeed Samuel and Brenda
Herbert’s property was listed in that database and was accessible to the
public.
Now Mr. Webster is keenly aware that just because a Brenda
Herbert is listed as part owner in property does not mean she lives there,
the property could be rented out to others, or it might even be that that
Brenda Herbert is not the one that works at the San Jose Police
Department. For example there has been up to three John Websters
besides the Defendant/Appellant of this case that resided in Santa Clara
County.
Now before Mr. Webster could go ahead with sending flyers to the
neighbors of Brenda Herbert, telling about her heinous crimes he really
would need to verify that the real Lt. Brenda Herbert actually lived
there. Otherwise he could end up opening up a real can of worms
legally; with lawsuits against him for defaming the wrong Brenda
Herbert.
22
As supposed evidence of the “Harassment and Threats” of Mr.
Webster visiting Lt. Herbert’s home Plaintiff relies on the sworn
statement of Samuel Herbert [CT:7-8] who admits that he did not even
come into a face to face contact with Mr. Webster but only observed
him through the front door peephole, while giving no indication to Mr.
Webster that anyone was home.
Samuel Herbert did elude to the fact that a neighbor’s daughter
actually talked with Mr. Webster and his companion. Are we to believe
that no one from the City Attorneys office interviewed this lady? If they
did where is that lady’s statement?
The truth is that the lady’s statement would not have helped the
paranoia that Plaintiff was trying to build for their case. That’s why it is
not included. Her statement would have been that the couple (Mr.
Webster and companion) were courteous and non-threatening and that
they said that they were interested in the next door property but had
failed on two occasions to find anyone at home. Her statement would
confirm that the couple said that they were interested in who actually
lived there and whether it was rented out or whether the actual owners
lived there.
What actually happened is that the lady volunteered that she could
get the phone number of the neighbors so that the couple could call at
their own convenience to get their questions answered rather than trying
23
again and again to catch them at home. It is only after the lady returned
and said that she couldn’t find the number, that she then volunteered
that Samuel and Brenda Herbert actually lived there and that the Brenda
Herbert worked “high up” in the San Jose Police Department.
The couple then thanked the lady for all her help and left.
Now don’t you agree that Plaintiff’s version makes it sound a lot
more like harassment and threatening behavior? The problem is that it
is intentional deceit by Attorneys of Plaintiff/Respondent to fake a
“course of conduct” to justify a Restraining Order.
VII. Judge Cain’s snap decision that there was an actual “threat of
violence” is invalid.
In the section of defendants flyer titled “Bad Cops turn good citizens
into Terrorists” [CT:14] the defendant draws a parallel with the FBI and
BATF as Bad Cops8 who had attacked the Branch Dividians at Waco
Texas. Then because of the unanswered accusations made against those
Federal agencies of allegedly using unjustified lethal force against innocent
people, followed by a cover-up, a third person, an otherwise good citizen
named Timothy McVeigh became a domestic terrorist and blew up the
Federal Building killing innocent people.
8 It is public knowledge that Mc Veigh’s motivation in the Oklahoma City bombing was
from his perception of Law Enforcement misconduct at Waco. (See, e.g.,McVeigh Letter
Shows Anger Over Waco Fire, San Jose Mercury News (9 April 1997), p. 6A)
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Upon analyzing the Recorder’s Transcript (July 25th, page 55, line
15 to line 20) it is clear that a major part of Judge Cain’s decision is based
on a difference of opinion with the defendant, about the role those law
enforcement agencies had in causing the Oklahoma City bombing.
What defendant was saying in his flyer was that we can not afford to
let accusations of police corruption and cover-up go unanswered, there is
just too much at stake. We must have a public investigation to determine if
there is any truth in them, and then prosecute those that are guilty.
Otherwise there will eventually be some third party that believes the
accusations but “knows” the system won’t prosecute bad cops, so he takes
the law into his own hands. It might even be another police officer. The
defendant here is only being the messenger of what happens when the
system no longer works for Justice.
Ignoring the question for a moment as to whether or not Defendant’s
actions and statements served a legitimate purpose, CCP §527.8 (b)(2) still
requires a “reasonable person being in fear for his or her safety”. This
clearly is not the case. On Defendant’s web-site and all of his flyers, and
even including the section mentioning the Oklahoma City bombing, he
implies that if the Government and Courts were to actually seek Justice and
to actually investigate into allegations of Police corruption that such
incidents of violence would never occur. Clearly a “Reasonable Person”
would have faith that our Government and Courts would seek Justice and
25
would investigate into allegations of Police corruption. Perhaps Judge Cain
has inside information that in his Court this is not what happens. To him it
is apparently more important to continue the cover-up of illegal police
activity then to reduce the chance of violence resulting from the public’s
response to that activity.
It is important to note that in all of Mr. Webster’s flyers, ads or on
his web-site, or even in Judge Cain’s court, nowhere has he given any
indication that he believes that the Oklahoma City bombing was either a
good or a desirable occurrence. He only states that he believed that it was a
predictable occurrence resulting from the perception .of police corruption at
Waco Texas.
Finally, when Judge Cain queries “So the same type of frustration
Mr. McVeigh felt towards his Government?” (Recorder’s Transcript July
25th, page 55, line 26) And defendant answers “That’s the type I’m talking
about.” Besides the obvious ambiguity as to who the Judge was referring to
as having the same frustration as McVeigh, versus who the defendant was
talking about, there just is no basis to believe that the defendant would react
to that frustration in the same way as McVeigh, ever. There just is no basis
for interpreting statements made by Defense in either his web-site, his
flyers, or in court as being “Threats of Violence”.
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SUMMARY:
While Judge Cain’s refusal to recuse himself is in itself insufficient
cause to justify a re-hearing after his rulings, it does however, in the
interests of justice, mandate that this review court scrutinize his rulings and
the evidence he accepted to justify those rulings with an extra critical eye.
First Respondent has admitted that Defendant’s actions previous to
recent events falls within what could reasonably be considered protected
Free Speech. Second, a police officer’s normal duties include the
occasional requirement to testify under oath for private citizens so the
requested testimony for the tax court and the deposition for this case are all
part of a police officers daily routine and not harassment.
Respondent has further admitted that targeting Lt. Herbert’s coworkers
with allegations of her previous illegal activities is a legitimate
protected Free Speech where Lt. Herbert’s recourse would be to bring a
defamation action against Mr. Webster.
Targeting Lt. Herbert’s co-workers is exactly what
Defense/Appellant was doing when he was driving and parking the
billboard truck with 8’X10’ signs so that all the co-workers, police officers
and officials there couldn’t help but see it. Plaintiff has him lying in wait
for Lt. Herbert. Defense visits an address that is listed in a public database
to determine if that is where Lt. Herbert actually lives. No one answers the
door there but a neighbor verifies that it is her residence. Plaintiff has him
27
being there to harass Lt. Herbert. Defense writes a letter to Lt. Herbert at
the request of an assistant chief of police, Plaintiff claims that it’s part of a
continuing harassment. All of the claims of harassment submitted by
Plaintiff/Respondent disappear upon close examination.
But to top it off, all of Defendant/Appellant’s actions were clearly
intended to alert the public at large, Lt. Herbert’s co-workers and fellow
police officers, about what Mr. Webster knows to be true. That they have a
Bad Cop in their midst who needs to be brought to justice for her crimes.
But to actually prove that his accusations of Lt. Herbert were true and not
just some way of trying to make her life miserable Defendant needed that
deposition.
Unfortunately Judge Cain had a direct conflict of interest with
allowing that deposition. If indeed Lt. Herbert’s testimony showed her as
being part of an organized criminal conspiracy than it might also show that
Judge Cain, by sealing documents for her, was knowingly part of the coverup
of that same conspiracy.
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CONCLUSION
PREVENTION OF FAIR TRIAL:
A new hearing should be granted on the ground that court order or
abuse of discretion prevented a fair hearing. (Code Civ. Proc. §657.1)
Judge Cain arbitrarily ended the hearing, in favor of the Plaintiff,
over a dispute with Defendant about the role that Federal Agents had in
causing the Oklahoma City Bombing. The Judge had not even allowed
Defendant to explain his answer to a fairly ambiguous question that the
Judge had asked (Reporter’s Transcript, page 55, line 26). By doing this he
prevented Counsel for the Defendant from presenting evidence of other
important issues.
Counsel was prepared to present a witness that would explain why
Mr. Webster went to Lt. Herbert’s residence and what actually happened
there. Mr. Webster himself was prepared to explain his intent with the
driving and parking of the billboard truck around the Police Administration
Building and why he resorted on occasion to using a pair of binoculars.
ERROR IN LAW – EXCLUDED EVIDENCE:
A new hearing should be granted on the ground of error in law,
occurring at hearing and excepted to by the party making the
application, because the court erroneously excluded evidence at that
hearing, thus materially affecting defendant’s substantial rights. (Code
Civ. Proc. §657.6)
Judge Cain granted the motion by the Plaintiff for a Protective Order
to stop counsel for defense from taking the deposition of Lt. Herbert. That
deposition was calculated to provide evidence that would have been used to
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show that Defendant’s actions were serving a legitimate purpose and
therefore could not be part of a “Credible threat of violence”. That is a very
relevant subject and clearly admissible. The arguments in section IV and in
the above Summary also clearly show such a deposition would not be
harassment.
ERROR IN LAW – VERDICT UNSUPPORTED BY EVIDENCE
A new hearing should be granted because the verdict is against law in
that it is unsupported by any substantial evidence and the entire
evidence would justify a directed verdict in favor of defendant. (Code
Civ. Proc. §657.7)
It is clear that Attorneys for Plaintiff/Respondent has been thinking
backwards. They apparently started from the premise that Defendant must
be stopped from continuing to blatantly broadcast his accusations of San
Jose Police misconduct to police officers, police officials, and to San Jose
City Government officials. They then derived how to best misrepresent the
facts to justify a Restraining Order.
In this document Appellant has suggested facts that
Plaintiff/Respondent most certainly would have know about but apparently
intentionally left out because those facts would not have supported their
paranoid view of Defendant’s actions. There is also the likelihood that Lt.
Herbert has received harassment from her co-workers and other police
officers, such facts would explain Plaintiff/Respondent real intentions.
This Court of Appeal has the authority under Code Civ. Proc. §909 to
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question Attorneys for the Respondent as to their knowledge of all those
exculpatory facts.
Because of all the above it is therefore respectfully submitted that
this court should order this matter to be re-heard in Superior Court before a
different judge, and to allow defendent to take the deposition of Lt. Herbert
concerning her part in that 1990 sting9.
Dated: August 4, 2004
Respectfully submitted
__________________________
John H. Webster
appellant pro-per
9 Since Respondent is apparently aware that Mr. Webster accusations are true, and would
predictably drop the motion for injunction rather than allow a deposition of Lt. Herbert,
justice would be better served by this court requiring such a deposition before it reaches
its final ruling. Such a deposition of Lt. Herbert should be in the presence of Mr.
Webster and an officer of Internal Affairs to ensure her cooperation.