In an About-Face, 3 Abortion Protesters Sentenced to Jail Ask Judge for Probation

Three abortion protesters sentenced to jail terms in 1989 for chaining themselves together in the waiting room of a San Marcos doctor’s office told a Municipal Court judge Friday that they have changed their minds about probation, which they refused when sentenced originally.

Judge Harley Earwicker, who heard the matter at Municipal Court in Vista, agreed to hear the defendants’ request at a hearing July 26. However, Earwicker said he doubted he could grant the motion, since he had sentenced the three to jail terms almost two years ago.

Angela Phelps, 33, and Georgina Cheek, 37, were given 60-day sentences for trespassing, with Dean Mesa, 32, a former San Diego County sheriff’s deputy, receiving a 120-day sentence for trespassing and resisting arrest, in the aftermath of the incident on July 20, 1989.

A fourth defendant, Nancy Scofield, 42, accepted probation when she was sentenced.

All were part of an Operation Rescue effort to draw attention to physicians who perform abortions. The target in this case was Dr. George Kung, an obstetrician with an office on Rancho Santa Fe Road in San Marcos.

Defense attorney Stephen E. Hurst told Earwicker that his clients now hope for a probated sentence. The three served short jail terms before having their cases referred to the Superior Court appellate panel in San Diego. That appeal was denied, as was a request to have the case reviewed by the 4th District Court of Appeals.

Hurst said Mesa said that, at the 1989 sentencing, Earwicker imposed a condition that the three “not even picket an abortion clinic,” which is why they refused probation. Hurst said Scofield accepted probation because no such condition was imposed on her.

“We all know that picketing, when properly done, is a lawful expression of free speech,” Hurst said. “They objected (to probation at the time) because they were losing their rights to free speech. They’re now willing to accept probation, provided the condition is not reimposed.”

Earwicker said he knows of no precedent that would allow him to reverse an earlier decision and grant probation after defendants turn it down. Hurst argued that such a precedent exists and won the right to present his case at the hearing July 26.

Earwicker issued a $5,000 bench warrant and a notice to appear in one week for defendant Georgina Wicker, who failed to show up Friday.