Witness for the Defense

When a man bites City Hall in court, our columnist takes the stand

I testified in the Palm Beach County Courthouse last week about a column I wrote. I did so voluntarily, despite the fact that I have fought hard — even risked jail time — many times to keep from taking the stand in the past.

Now, do you hear that sound off in the distance? It's a bunch of veteran newspaper pros all groaning in unison. They're the purists, and to them a reporter willfully taking the stand is a journalistic crime in their eyes, no matter what the circumstances.

But before someone tries to drown me in my own ink, listen to the facts of the extraordinary and groundbreaking case for which I testified, The City of Riviera Beach vs. Fane Lozman. The houseboat-living Lozman, a political activist, was fighting eviction from Slip 452 at the Riviera Beach Municipal Marina. The city's pretense for kicking Lozman off the dock was that his ten-pound wiener dog, Lady, had menaced some of the marina's residents.

Christopher Smith

The dog had never hurt anyone and was always leashed, and Lozman said the city really wanted him to sail off into the sunset because of his hobby of dogging public officials. Before his eviction, Lozman was holding up the city's $2.4 billion redevelopment plan — anchored by billionaire Miami Dolphins owner H. Wayne Huizenga — with a lawsuit that he filed against the city.

The activist fought the redevelopment after learning that the marina he called home would be taken over by the master developer, Viking Harbor Inlet Properties. Fearing Viking would make it unaffordable for everybody but the megarich, Lozman wanted to keep it in public hands. He also didn't like the fact that the city was subverting recently established state law, championed by then-Gov. Jeb Bush, that made it illegal for cities to use eminent domain to profit developers.

Lozman, a 45-year-old, self-made millionaire with time on his hands, was also a regular at City Hall meetings, where he brought up the foibles and ethical deficiencies of elected officials, his favorite target being Mayor Michael Brown (who incidentally has plenty of foibles and ethical deficiencies to point out [see "Who Crowned Michael Brown?" August 17]).

I first visited the thorn in the city's side on August 1 last year, and it wasn't long after arriving on the sun-spackled dock that it became evident how serious the conflict had become between Lozman and his landlord, the city.

In my presence, Rivieria Beach Assistant Police Chief David Harris nearly arrested Lozman for doing what then-marina Director George Carter deemed unauthorized work on his houseboat. At one point, Harris told Lozman he wanted to "slap the cuffs" on him.

This all because Lozman was replacing double doors on his craft to shore it up against a coming storm, Hurricane Ernesto.

Ultimately, Harris calmed down and told Lozman he had one day to finish the work. Lozman believes that if I hadn't been there — that is, a reporter with a notebook — he would have seen the inside of a jail cell that day.

I wrote a column about what I'd seen titled "Witness for the Intimidation" (having no idea how literal that title would become). The newspaper hit the streets on August 8. The very next day, Lozman got an eviction letter from Carter, a longtime city employee and admitted Brown friend, stating that he was being booted from the slip because his wiener dog had been spotted without a muzzle.

In short, Carter deemed that the bitch — an animal Carter admitted in the eviction letter had never bitten anyone — be booted from the marina. "City Bites Dog" was the headline over the column I did on that.

Lozman began fighting the eviction in court, claiming that the city was retaliating against his political activity and violating his First Amendment rights. Because he could find no attorney willing to take the case, he represented himself, winging it as he went along.

As the case dragged on, city officials finally did have the cuffs slapped on Lozman. Upon their order, police arrested him during a City Commission meeting November 15. What did he do? Speak his mind during his allotted time during public comments. He was literally dragged to jail and charged with disorderly conduct and trespassing.

No surprise that the charges have since been dropped. Riviera Beach officials apparently forgot they were in the United States of America instead of, say, Kazakhstan (which really is a horribly oppressive country, Borat notwithstanding).

Near the same time, the city abandoned its plan to use eminent domain to benefit Viking, Huizenga and other private developers as part of the $2.4 billion plan. Lozman counted that as a victory.

Two weeks ago, he called me to say his case was going to the jury, which would decide if the city's eviction violated his First Amendment rights. He asked me if I would testify about my articles.

I've always avoided testifying before a jury, although prosecutors have regularly tried to force me to do so. In those cases, interviews with suspected criminals piqued their interest. A couple of chats that got me subpoenaed involved a drunk driver who'd killed three people and a funeral home director who left a dozen corpses to rot in a storage shed. I'm under subpoena at this very moment from the Broward State Attorney's Office in a Mafia case involving alleged Bonanno crime family capo Gerard Chilli. New Times and I are fighting it.

Testifying in those cases would have made me an arm of law enforcement. And I don't want to have to tell my sources, no matter what awful thing they've done, "Oh, and by the way, what you tell me can and will be used against you in a court of law."

I'd rather go to jail.

In the Lozman case, I was only going to testify that what I'd written was true. Instead of betraying a source, I was helping one. It was also a First Amendment case, which we journos are supposed to hold near and dear. My conscience didn't just condone the idea; it urged me to testify, just as I'm sure it would do if I were to witness a serious crime.

If I were a regular reporter rather than a columnist, it might have been different. And if I hadn't personally witnessed the city's harassment — and written the article that possibly prompted officials to evict Lozman in the first place — I wouldn't have done it either.

To Lozman, I said I'd testify. He responded by telling me his Johnnie Cochran-inspired trial slogan: If the dog didn't bite, the eviction ain't right.

Though I thought I was doing the right thing, a general sense of dread still burned in my chest as I drove to the Palm Beach County Courthouse last Wednesday morning. There, I had to wait outside the courtroom with the other witnesses, which included a few city marina workers, a retired Navy man who lived in a slip next to Lozman's, city Councilwoman Vanessa Lee, a former Coast Guard officer who runs a diving business at the marina, the owner of the nearby Seashell City shop, and another City Hall gadfly who witnessed the trespassing arrest.

All were served subpoenas by Lozman. The city's own case was minimal, focusing on the lease agreement.

It wasn't long before I realized first-hand why no newspaper would ever want any of its reporters to testify under just about any circumstances. I sat outside the courtroom for, oh, four hours or so before I was called. You see, a witness can't actually watch the trial until after he's testified.

So I couldn't watch the trial that I still wanted to write about. Now, I could regale you with bits of conversation from all of us impatient, frustrated witnesses as we waited our turns (OK, there was talk of the movie Jaws, the mythic Skunk Ape, and the possible homicide of one Fane Lozman), but let's just say we all wished we were somewhere else.

Finally, I was called. The bailiff led me into the sixth-floor courtroom past the smart-looking jury of five women and one man and the Honorable Peter M. Evans, a well-respected 20-year veteran on the bench. After swearing in, I sat on the witness stand across from tall and thin Lozman, who in his big dark suit looked like a fish out of water (or, more precisely, a Florida live-aboard in a courtroom).

Then the fun started. Under Lozman's questioning, I testified that I was at the marina. That was about it before the city's attorney, high-priced municipal law guru George Roberts, began a mind-numbing series of objections.

"Hearsay, your honor," he'd say.

"Sustained," Judge Evans would usually rule.

Then Lozman tried asking me a question — a popular one was a variation of "Did Assistant Chief Harris threaten to put the cuffs on me?" — in different ways and Roberts, a gray-bearded 31-year veteran whose demeanor tilted from amiable to gruff, would successfully object again.

Several times, the judge would call Lozman and Roberts to the bench and turn on a white noise machine so the jury couldn't hear their words. I could hear them, though. Roberts, who also had the help of co-counsel Sherri Renner, kept referring to any testimony I might give as "classic hearsay."

Lozman gave up, and then Roberts began his cross. It went much more smoothly, since he knew what to ask and Lozman had no idea what to object to. One thing Roberts managed to get into the record was that Lozman referred to his city protagonists as "corrupt assholes" (a direct quote from my story), enhancing his basic argument that the defendant was a rule-breaker who was just trying to make trouble.

Lozman tried to question me again but was quickly shot down by the judge, and it was soon over. He was clearly outmatched by Roberts and Renner, but there was something admirable — almost noble — about the effort.

I left the stand almost wishing I'd said more. Almost. Mostly, I was relieved to finally get to watch the trial and take notes. And from there, I got to see a few entertaining snapshots of life at the marina.

The former Coast Guard officer, Sandra Brammeier, told the jury of hearing "a really strange noise" once while on her boat. It was Lozman's cat, which had fallen into the water. Brammeier leapt from her boat and saved the feline, but not without suffering injury.

"I must have kicked a barnacle or something," she testified. "I just about cut off a toe."

Otherwise, she'd had no run-ins with Lozman's animals other than friendly interaction with the always leashed wiener dog. Not so with some other larger dogs who saunter about the dock unleashed.

"There's a black Lab that hikes its leg on my rinse-spin every time it walks by," she said, prompting a few laughs from the jury.

At one point, Lozman, who doesn't know most points of law from points of toast, pulled out a list of the 20 most common objections. Then he began to randomly call them out as Roberts conducted his cross-examinations, trying to give the old bard a taste of his own medicine.

"Objection, scope," Lozman would say.

"Objection, leading."

"Objection, compound question."

At least Lozman was having some fun. And he had some impressive moments. Carter, the former marina director who evicted him, took the stand as a hostile witness and admitted that he'd gotten a new job since leaving the city — at Viking, the master developer chosen by the city for the $2.4 billion plan challenged by Lozman.

Lozman's closing statement was downright inspired, and his closing line was brilliant: "What makes America beautiful is our freedoms. Don't let them take those away from me."

The jury had to answer yes or no to two questions that would decide the case: Did the city violate Lozman's freedom of speech? And would he have been evicted were it not for his political activity?

A "yes" and a "no," respectively, would mean a Lozman victory. I didn't know how the jury would rule, but I knew that if it had really listened, it would rule against the city. Even though Lozman had no formal legal training and went up against two hired legal guns (I haven't been able yet to get figures, but I'm betting the city spent more than $30,000 on the eviction), he'd won the thing. The facts were on his side.

And Roberts didn't seem too confident. When I asked him how he felt about the case, he said, with a wry smile he's very adept at making, "I'll know that when we hear from the jury."

After 151 minutes of deliberation, the jury came to a decision. Its answers: yes and no.

Lozman won. He jumped up and hugged his friend (and unofficial law clerk) Pepper Newman. It may have seemed obvious that city officials had abused their power, but the fact that the jury actually confirmed it was still stunning. "This is a victory for all Americans," Lozman said afterward, before he popped a bottle of Cristal in his houseboat in the marina he could still call home.

Grandiose words, but I damned well agreed. This would be in the law books forever and might someday help some other citizen crazy enough to use the Bill of Rights. I didn't regret my testimony, for whatever it was worth. I just knew that I'd never do it again except for one hell of a case — something worthy of City of Riviera Beach vs. Fane Lozman.

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