Fresno city attorney doubles down on questionable methods in no-camping case | Opinion
Safe to say that Fresno’s first attempt at prosecuting an unhoused individual under the city’s no-camping ordinance won’t be written up in any legal periodicals.
Except as an example of what not to do.
As an objector to laws that punish people for lying and sleeping in public spaces, Wickey Two Hands getting off due to a technicality was perfectly OK in this crevice of the universe. Since last week’s ruling, I’m told (by attorney Kevin Little, who represented Two Hands in court) that the 77-year-old secured temporary housing in Fresno.
If getting people off the streets is indeed the goal of the city’s ordinance, then mission accomplished.
Nevertheless, two leftover aspects of the short-circuited trial merited further inquiry:
Why weren’t the misdemeanor charges against Two Hands brought to trial in a timely manner within 45 days (and the judge’s stated reason the case was subsequently thrown out)?
And why is the Fresno City Attorney’s Office issuing subpoenas to reporters (and without the knowledge of City Attorney Andrew Janz)?
Monday morning I texted those questions to Janz. He quickly agreed to answer them and wanted to do it in person. The interview took place Monday afternoon at City Hall and included other Bee journalists. As part of my own reporting, I also spoke to two attorneys with direct involvement (Little and David Loy of the First Amendment Coalition) as well as other sources in the legal community.
After sifting through the facts, my answer to the two questions posed above is essentially the same: The city’s case against Two Hands was assigned to an inexperienced prosecutor far down the chain of command with limited knowledge of criminal trials who was given wide latitude to employ questionable methods.
For clarity’s sake and before delving further, let’s discuss the two issues separately.
Questionable strategy for landmark case
Even though the charges against Two Hands were relatively minor (i.e. misdemeanor), this was a landmark case guaranteed to generate widespread media attention. Moreover, the defendant was represented by Little — one of Fresno’s top civil rights attorneys who would like nothing more than to challenge the no-camping ordinance on legal grounds.
Those two elements alone merited a different strategy. Janz, a former prosecutor for the Fresno County District Attorney’s Office, should’ve tried the case himself — simply to set an example for future no-camping prosecutions by his office — or at the very least assigned it to one of his 10 chief subordinates whose titles include chief assistant city attorney, assistant city attorney and supervising deputy city attorney.
Instead, the case went to deputy city attorney Daniel Cisneros, who joined the city attorney’s office in the fall of 2023 after passing the state bar exam in 2021. And whether one believes the defense was responsible for the breaching of the 45-day speedy trial window (Janz’s version of events) or the prosecution was responsible (Little’s version), a more experienced litigator would’ve prevented the proceedings from getting tripped up by a technicality.
Ultimately, though, the responsibility lies at the top. Meaning this mess lands in Janz’s lap.
Even though there are no scheduled trials for violations of the no-camping ordinance, about 250 cases are currently open, according to Janz. Plea agreements have been worked out in most previous instances, he added, which is the city’s goal because it compels the individual at issue to get assistance.
Given how this one turned out, is his office sufficiently prepared for future cases that go to trial?
“We are absolutely prepared,” Janz said. “We have the resources necessary to prosecute these cases again. We were ready to go on this one, but the defense violated their own speedy trial rights.”
“They’re the ones who came in asking for a continuance on Feb. 20 — not me,” Little countered. “We insisted on our right to a speedy trial.”
Puzzling stance on reporter subpoenas
In addition to shifting any blame for the case getting tossed out, Janz took what I’ll generously characterize as a puzzling stance on the sticky subject of his office issuing subpoenas to two local reporters (The Bee’s Thaddeus Miller and Fresnoland’s Pablo Orihuela) who published stories about Two Hands in the months before the scheduled trial.
Janz confirmed the subpoenas were issued without his knowledge or consent, characterizing that as “a bad tactical decision by the assigned prosecutor.”
But rather than back away from poor policy, Janz doubled down by saying reporters will be called to testify in future cases prosecuted by his office. Only next time they’ll ask nicely before typing up subpoenas and sending out process servers to stalk newsrooms. (The one who served Miller wore a Hawaiian shirt and mouthed a toothpick — as if lifted from the pages of an Elmore Leonard novel.)
I sincerely hope Janz reconsiders. Not only is it legally unnecessary for reporters to testify in court about published news articles, which are “self-authenticating” under the California Evidence Code according to Loy of the First Amendment Coalition, it is also extremely unwise. Independence is one of the central pillars of the press, and anything that comprises that or even lends the appearance is always best avoided.
This explains why reporters go to great lengths to avoid testifying about their work — and why powerful shield laws exist to prevent journalists from being forced to do so except in rare instances.
Surely there are simpler, more effective ways of prosecuting a person for sleeping in a public space. If that’s even necessary at all.
