A Social Sculpture on Trial, part two: Art has a boundary and a price

What would turn out to be the first and last day of the Ash Studios jury trial is scheduled to begin at 8:30 am in Courtroom 11. At around 9:46 am, things began to appear as if they are about to proceed. A small audience has gathered to watch the proceedings, a performance with far-reaching outcomes for Ash Studios, experimental spaces in Dallas, and potentially much further afield.

Ash Studios, the social sculpture and social practice project co-founded by Fred Villanueva and Darryl Ratcliff, has defended itself before Judge Michael Acuna before. As before, they’ve defended themselves on the grounds that the project is a social sculpture, a collaborative project that is something separate from the sort of building or business that the citation that has brought them here contends. According to the City of Dallas, they are in violation of section 114.1, of Chapter 16 of the Dallas Fire Code which states: “No structure or land shall be used or occupied, no change in the existing occupancy classification, zoning use, or the tenant or occupant of a structure or portion of structure shall be made… until the building official has issued a certificate of occupancy and a fee has been paid…”

They’ve previously argued their 5th Amendment rights, and made it clear that the city’s effective censoring and silencing of Ash is akin to the destruction of artwork, and now they’ll try their case in front of both Judge Acuna and a jury that will hear none of this reasoning. A jury that will eventually find Fred Villanueva the man, as an embodiment of Ash Studios the social sculpture, guilty and responsible for a fine and court fees.

Judge Acuna predicted for the jury that the trial would last no longer than a day. That the implications of their decision were larger and further reaching than a simple matter of having the proper paperwork to run a business was not something that was impressed upon the jury. He defined the entire trial simply: that the defendant (Villanueva) needed a CO that he didn’t have. That the defendant’s possession of an older CO, issued to a former owner of the property, proved Villanueva’s knowledge of the fact that he needed one. Whether or not he thought inheriting one was good enough could be left up to interpretation by the jury, but what they could not leave up to interpretation was the small scope of what they knew about this case. Villanueva needed a CO, not one issued in the 1970’s for storage and workshop spaces like the one he has (although it could be argued that in its function as an artist studio, Ash has operated as both of those things).

According to Judge Acuna’s oration, Vallanueva didn’t have a valid CO, when a relatively small audience of twenty or so had assembled for a performance and the fire marshal issued its citation. These things are true, and it is also true that the “Waiting for Lefty” performance took place in the outside area of the space – no fire marshal would testify to this fact; a fact which would have opened them up to a line of questioning in regards to where their jurisdiction lies (in buildings and structures, not backyards). Having treaded that territory with Ash Studio’s defense attorney Paul Saputo, one fire marshal who was present the night the citation was issued admitted that she would not consider giving a citation to someone outside of a building or structure before proceeding to avoid pinpointing where she came into contact with Villanueva or how they got into the building together after talking outside. It would be drilled into the jury’s collective mind that Ash Studios is a business, nothing more or less, nothing outside or ahead of the established laws.

It’s 10:20am when the jury panel process is underway. Former police officer and current Assistant City Attorney Mathew Saliba, who had represented the prosecution in pre-trial proceedings up to this point, approaches the bench accompanied by two other attorneys. Saliba is serious, slightly daunting, and gives off Patrick Bateman-esque vibes.

Prior to the court proceedings Saliba, thought to be one of Dallas’ rising talents, made efforts outside of Municipal Courtroom 11 to signal Villanueva and Ratcliff of his love for art and the impersonal nature of his representing the city against them. On the record, however, he approaches the bench prior to jury selection to speak to Judge Acuna about “matters that I need to attend to today…” asserting that he “will be present for jury selection but…” Although what came after “but” was inaudible, those of us who had been present at the pretrial hearings would notice that while Saliba would pop in and out of the courtroom throughout the proceedings, he would not try the case, leaving that to one of the two men who accompanied him to the bench. Leaving this ‘impersonal’ case to an assistant, the prosecution and defense attorneys made the inevitably tedious proceedings of both the jury selection and trial into an imbalanced courtroom drama – a performance whose most dramatic element was the aftershock of the potential decision.

Arguing for the omission of what had already been presented during pre-jury trial proceedings, the prosecution effectively argued in favor of leaving the jury without context regarding what Ash is, who it serves, why it may have been targeted, and how, even upon obtaining the recommended CO, a CO that Villanueva had been told would not be the proper one when making alternate attempts to secure it, Ash could continue to be targeted as other spaces before it have been, in Dallas and across the country. The prosecution later mentioned the fact that Villanueva still had not obtained the proper CO, but did not mention to the jury that, as a social sculpture, no CO exists for the space, and there is no attempt being made to create one or to consider a CO that would allow those in the arts to flourish and work with communities such as South and East Dallas that are directly served by Ash Studios.

Nonetheless, Saputo stated that he was “not in opposition” but that he did “intend to call an expert witness” someone who could testify regarding “under what auspice the play was being conducted.” “As long as the testimony is factual and not legal” was the response given by Judge Acuna.

By the end of the eight hour day, an associate would note that what we had all just participated in was, on some level, a part of the social sculpture of Ash Studios – a part of it in the same way that the building has been and continues to be only a part of Ash Studios. At the beginning of the day, we waited. Waited for a new defense strategy, and the possible absence of Villanueva’s testimony. Villanueva ultimately testified as a way to counter what he would later call false testimony given by two Dallas County fire marshals who, respectively, couldn’t remember if they’d interacted with him in or outside of the space on March 30th, 2017, when the citation was issued before a performance of “Waiting for Lefty”, and testified to having come into contact with Villanueva as he was coming from inside of the building. Neither seemed to remember how they came to be inside of the building, but both asserted that a play was either going on or about to start in the interior. When asked by the prosecution about the fire marshal’s testimony, after stating that the production was going on in a backyard space that audience members were being led to through a side door, Villanueva remarked, “I heard the false testimony.” An answer that was met with a swiftly overruled objection, made on the grounds that Villanueva was non responsive.

In stride with that and a considerable number of objections issued by the prosecution, there was also an overruled motion to strike Ratcliff as a witness (he was not there on the night of the performance and citation but was called as an expert witness as the cofounder of Ash Studios), and an objection to call witness Michael Corris, artist, writer, professor and SMU Art Department Chair, on grounds that seemed unclear to the prosecuting attorney himself, as it had not been stated whether Corris was on the stand as a material or expert witness before the objection was made.

Another request from the prosecution, essential to Ash Studios’ argument, was a censoring of the term “social sculpture” to refer to Ash Studios. This simple act could be interpreted as a way to obscure facts as the matter of fact label of “business” was heavily applied to Ash Studios throughout the selection process and trial, and false equivalencies about the legal obligation to secure the proper paperwork when opening a business were presented to potential jury members by prosecution during voir dire, a legal process of examination where questions are asked and truthful answers are given by potential jury members before final selection is made.

The term social sculpture escaped the censorship from the courtroom, a victory in and of itself as six more people have a bit of understanding of what’s under attack in the city of Dallas, even if they don’t have a full scope of the attack, or even a certainty that there is an attack taking place. On the defense side, Saputo requested that irrelevant and emotional fire related death tolls be left out of opening and closing statements, or even used within lines of questioning during testimony, to which Judge Acuna agreed. It is hard to say whether the prosecution would have contextualized potential safety hazards being ascribed to Ash and spaces like it with facts related to the Ghost Ship fire, but what seemed to be a lack of awareness about why spaces like Ash, or why Ash itself, are important within the city leave the underlying actions of the fire marshals under question. Whether or not the person or persons responsible for calling the fire marshals to report on Ash were acting in bad faith, and what motivated that unnamed individual to make the call, is anyone’s guess. Certainly, an awareness of efforts made by individuals and the government to close these spaces were not presented by either side, but potential jury members were given a brief and comprehensive lesson on the state’s burden, the meaning of beyond a reasonable doubt, and the need to be honest about biases.

The news that Ash Studios was listed as a co-producer of “Waiting for Lefty” along with Upstart, the Dallas based theater company that produced the play at Ash, was perhaps the final nail in the coffin so to speak, as the defense had evolved to one hinged on the difference between ownership and use in the end, emphasizing the absence of Villanueva’s name from any playbills or materials associated with the “Waiting for Lefty” performance, and admitting that as the owner of the space, Villanueva probably should have a CO, but that he hadn’t done anything that he was criminally liable for.

“If you allow someone to use something then by definition, you are not using it.” said Saputo in closing, going on to emphasize that the difference between ownership and use were “not a throwaway technical distinction,” but the “difference between guilty or not guilty.”

“Art has no boundaries but it does have a price.”

That was the catchy slogan used by the prosecution in closing statements. It was used at first in correlation to safety, and then at the end of closing as a segue into reminding the jury of their civic duty to decide on a fine for Fred Villanueva as Ash Studios, a fine that turned out to be $100. Less than the original citation of $750. Less than the possible maximum of $2,000, and less than the over $15,000 worth of updates that have already been drawn out in order to meet city standards. Yet, the price paid is one that, for many in Dallas and elsewhere, will mean a boundary between an experimental space for art and its eventual absence.

Dallas-based ‘social sculpture’ and experimental art space Ash Studios went to trial opposing occupancy restrictions for DIY spaces facing increasing closures in the city. In this two-part piece, Ashley Jones frames the trial and the implications of its outcome on experimental art spaces everywhere. Read part one here.