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Justice Above the Law?
Published on Wednesday, November 30, 2005 by
Justice Above the Law?
by Max Obuszewski
“From start to finish, it was a trial unlike most that unfold in the courthouse, as one defendant after another pilloried Bush from the well of the courtroom and from the witness stand.” -- Henri E. Cauvin, The Washington Post, Nov. 18, 2005

As a representative of the National Campaign for Nonviolent Resistance, I am coordinating the legal efforts resulting from the arrest of more than 370 peace activists who tried to exercise a First Amendment right to petition the government on Sept. 26, 2005 at the White House. On Nov. 16, more than 100 defendants were scheduled for trial in federal court in Washington, 3rd and Constitution Ave.

Around sixty of these defendants had contacted me, and a majority had not yet paid the protest tax [$50 fine and $25 court costs] listed on the citation. Remarkably 42 defendants appeared for trial, traveling from Florida, California, Wisconsin, Oregon, New York, New Jersey, Maryland, Virginia, Pennsylvania and the District of Columbia to face a charge of “demonstrating without a permit,” which carries a maximum fine of $500 and a possible six months in jail.

Acting as pro se defendants with assistance from attorney advisor, Mark Goldstone, Cindy Sheehan's attorney, Jon W. Norris, and volunteer lawyer, Ann Wilcox, the activists volunteered to take on nine roles to be performed during trial. It surprised me that the case went forward, as Mark said it was the largest number of defendants in the same trial he has witnessed in more than twenty years of service to the peace and justice activists prosecuted in Washington.

After the morning demonstration on Nov. 16, the defendants, lawyers and supporters were ushered to a vacant courtroom. Mark, Jon and Ann soon began disseminating legal advice to the curious, and the group proceeded to engage in a mock trial.

Catherine Hartzenbusch, the prosecutor, soon came in to offer a plea bargain: plead guilty and pay a fine of $25 and court costs of $25. A marshal then began to take a roll call of who was present, but the lawyers objected. He wanted to call the names by arresting officer instead of in alphabetical order. This led Mark, Jon and pro se defendant June Eisley, from Wilmington, DE, now taking on the role of legal liaison, to go into Judge Alan Kay’s courtroom to deal with the objection. After this was settled, the marshal did not call out the defendants by arresting officer.

We were now informed, however, of the prosecutor’s plan to pursue separate trials by arresting officers, rather than a joint single trial. Moreover, the judge was intent on starting the trials without all of the defendants being given an arraignment.

An arraignment is a standard procedure in court. The defendant hears the charge, pleads to the charge and states to the court if counsel is present. When I heard of the government’s plans, I realized fairness was not to be a major concern in this court.

The government wanted to “steamroll” the defendants, as Mark put it, into copping pleas. But the solidarity of the defendants was emphasized by the fact that just one person accepted the plea bargain. I now knew the steamrolling would not work.

By noon, we entered Kay’s courtroom unwilling to accept separate trials or to be denied an arraignment. First, six defendants were informed that their cases were dismissed. For five arrestees, the arresting officer failed to appear. The other dismissal was for June, the legal liaison, who objected, "I don't want to be dismissed."

Then Kay called the first group of defendants into the well of the court, and each one sought an arraignment. The first four explained they had no representation, and thus were not prepared for trial. Kay had no alternative, but to grant a new trial date, Dec. 16. The fifth pled guilty.

The prosecutor informed the court the government would consider waiving the six months imprisonment, which would nullify a defendant’s right to a public defender. I suspect such a move, which did happen, was illegal.

So our entourage retired to the vacant courtroom to strategize. The defendants agreed on a strategy to force the hand of the government. Rabbi Arthur Waskow, from Philadelphia, representing the pro se defendants, objected to the court’s desire for separate trials and explained, for judicial expediency, that it must be a joint trial or everyone will seek a continuance. This settled the matter.

The prosecutor indicated the government was prepared for trial. We would find out later, she fibbed, as her primary witness was not present. So actually she could not have pursued separate trials, as the missing witness would have had to testify in every case.

She informed the court that no defendant would receive discovery as no one requested it. Denying the defendants discovery is astonishing, as there would be a police report at least which should be accessible in preparing a defense.

The judge called up the first four defendants and ordered them to sit in the well of the court. It took a legal skirmish before Cindy Sheehan was allowed to sit at the defendant’s table.

The first matter, though, was to argue the prosecutor’s motions: “To Preclude an Affirmative Defense of Necessity, For Leave to Late File and the Notice of Intent to Introduce Certified Business Records.” The judge ruled that the motion in limine would be held over for further observation. Jon and many of the defendants had never seen the motions before arriving in court.

Jon brought up the case of Andrew Bloch who was arrested March 19, 2003 in an antiwar protest after climbing over barriers to get to Pennsylvania Ave. The D.C. Court of Appeals vacated his conviction as the police set up an exclusion zone, which was illegal under the circumstances. Jon implied the police set up an exclusion zone on September 26.

Hartzenbusch, in her opening statement, told the court the defendants had no permit. Virginia Rodino from Baltimore began the pro se opening statement by reminding the court of the greatest antiwar demonstration ever on February 15, 2003. Every method to stop the war was tried without success, so it was necessary to go to the White House. Kay cut her off by saying you were demonstrating without a permit. A pro se defendant objected to this blatant prejudice, and Virginia continued with her denunciation of the war in Iraq.

In his opening statement, Jon pointed out his client had suffered the ultimate penalty--her son was killed in Iraq. Soon the judge cut him off and stated they were demonstrating without a permit. The judge was not an unbiased arbiter.

The first witness for the prosecution was called, a U.S. Park Police officer listed as the arresting officer of the four defendants now ensconced in the well of the court. The government dropped charges against the four defendants because the “arresting officer” acknowledged he had no idea what they were doing on Sept. 26. Ironically, the person who copped a plea would have had his case dismissed. The term arresting officer does not necessarily mean the person that placed a defendant into custody.

So the trial proceeded in this fashion. A group of defendants were called to sit in the well of the court, and their arresting officer testified against them. Objections were raised that isolating the defendants up front would make it easy for the police witness to point them out. The judge noted this objection, but permitted the practice to continue throughout the trial. One police officer admitted that there may be others in the courtroom who might be her arrestees. However, she could not point any out.

Defendant pro se PJ Park, of Mt. Rainer, MD, cross examined the police witnesses, as did Jon. There were six Park Police witnesses, and one arresting officer was responsible for 76 arrests, another 40 arrests. However, since the court brought the respective officer’s defendants up front, each witness identified all of his/her defendants by an article of clothing, including a War Is Not the Answer tee shirt. Cindy was obviously identified by name.

After five hours, we were informed the prosecution’s last witness was not present. At 6:35 PM, the case was carried over to Nov. 17 at 9 AM sharp to be completed by noon. This was unfair as the prosecutor was given six hours over two days to present her case, but the defense with 31 defendants was given two hours.

The next morning, the U.S. Park Service officer who granted permits for the Ellipse and Lafayette Park on Sept. 26 would be the last witness for the prosecution. During cross-examination, an attempt was made to have the witness indicate a permit was unnecessary for First Amendment activities. It did not succeed. He did say the defendants could have obtained a permit.

Both Norris and Anna White, a pro se defendant from D.C., offered motions for acquittal. Specific examples were noted of the witnesses failing to identify defendants. Since the judge rejected these motions, it was inevitable he would convict.

Nevertheless, Rabbi Waskow called the first witness for the defense, Manijeh Saba from Somerset, NJ. She was there on Sept. 26 in part for her three grandchildren. On the stand, she testified that “The president is deaf.”

The next witness Joy First came from Madison, WI and testified, "I believe that Bush is a war criminal and he should be on trial.” This was stricken from the record. She was emotional as she detailed everything she tried to do to stop the war.

Gael Murphy, a member of Code Pink from the District of Columbia, testified that more than 30,000 petitions were taken to the guard shack at the White House on Sept. 26, but were refused. In a statement to the judge, she explained that she is disenfranchised because of her residence in the District. She could not petition her legislators to vote against the war.

The judge kept encouraging the defense to hurry as time was running out. He never did this during the prosecution case. An objection to this time bias was only noted.

The last witness for the defense was Cindy, all the way from Berkeley, CA. Her sister Christy Dede Miller was in court as a defendant. Cindy spoke of many of her attempts to contact the president, including when she went to the guard shack on Sept. 26. The prosecutor asked, “Didn’t getting arrested further your plan?” She answered, “No.” She, like the other defense witnesses, asserted her innocence, stating her right to petition was protected under the First Amendment.

Just before the closing statements were made, Stephanie Allen from Buffalo objected to the disparity in time allowed for the prosecution versus that for the defense. Hartzenbusch, in closing, said they were clearly guilty of demonstrating without a permit and deserve to be fined.

Johnny Barber, from Deerfield Beach, FL, gave an exceptionally moving closing statement, noting that dissidents are always excluded from any of the president’s forums. Norris again reminded the court that Cindy paid the greatest price and argued points of law, including the Andrew Bloch decision by the appeals court.

After some minutes in his chambers, Kay ruled. He gave the Webster’s Dictionary definition for civil disobedience and then ruled all guilty and fined them $50 with a $25 assessment for court costs. In the court of law, defendants have the right to speak before sentencing.

However, in this court, Rose Marie Berger from D.C. made a collective sentencing statement after Kay announced the sentence. She asked for time served and quoted William Penn, “Justice above the law.” Kay indicated the sentence imposed stands.

As the judge left the bench, the defendants and supporters erupted into a hearty version of "We Shall Overcome." This was followed by Rabbi Waskow singing his progressive version of “America the Beautiful.”

The defendants spent two days sparring with the court on major issues of life and death, war and the Bill of Rights and the need to speak truth to power. From my perspective it was an invigorating example of community-building and an empowering method of continuing the resistance inside the courthouse. All involved deserve accolades. As a biased observer, I found the defendants not guilty as they acted on their Nuremberg responsibilities. As Johnny Barber said in his closing statement, “Our nation is in grave danger. On Sept. 26th and today, we have no other recourse.”

There are two more opportunities to take the resistance into the courtroom. From the correspondence, I know many others who were arrested on Sept. 26 are looking forward to having their day in court.

Max Obuszewski is a member of the Pledge of Resistance-Baltimore.


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