Court Report from the RNC 8's October 8 Hearing

Thanks to everyone who attended the rally and court solidarity for the RNC 8 on October 8! Enough supporters showed up that the court staff agreed to switch to a larger courtroom. Not only that, but even in the larger room, we took up enough space that the customary sad-looking undercover investigators needed to stand the entire time.

The hearing itself lasted all morning and then some; the attorneys weren’t able to get through arguing all their motions (a motion regarding exhibits and witnesses was left out) before Judge Warner had to break for lunch and pick up her afternoon schedule. No rulings were made Thursday. At the end of the hearing, Warner indicated that she would wait to rule on the motion to consolidate the 8 into one trial before setting the next date.

Still to be accomplished before trial are a hearing for the motion/s not heard on Wednesday, suppression hearings regarding the raids against the 8 last August, omnibus hearings and arraignments.

Regardless of whether the RNC 8 will be given one trial or multiple trials, Warner’s November trial block is out of the question. Her next trial block is in January, though the prosecution said witnesses will be unavailable for part of that time, and so a January trial seems unlikely. Warner’s subsequent block is in March, 2010, although she noted that her schedulers may be able to arrange for a trial outside her normal block (judges in Ramsey County are typically on trial duty for four weeks, then other duty for five, repeating).

Below is a more detailed look at the motions that were argued last Thursday. Next up: join us at the next monthly free meal cooked by the RNC 8, October 27 at 6pm at Walker Church in Minneapolis.

More Coverage: Twin Cities Daily Planet, Minnesota Daily

FIRST MOTION - CONSOLIDATION

After settling into the new courtroom and working out which of the eight lawyers would present which arguments, the first motion to be argued was the motion for consolidation. Max’s attorney Larry Leventhal argued that the complaints against the 8 are identical, that the evidence and legal issues nearly the same for each, and that a joint trial is customary in conspiracy cases especially when the defendants express such a strong desire to be tried together. If the prosecution wanted individual trials, it should have filed individualized complaints against each of the 8, he said, adding that the prosecution’s wish to separate the 8 “is a trial strategy rather than a strategy where it believes a fair trial can be had.”

Leventhal also cited a September 17, 2008 letter from prosecutor Heidi Westby herself “request[ing] to consolidate for all future hearings and trial.”

He also addressed the state’s line of reasoning about logistical concerns for a joint trial - which in part stated that there may not be a big enough courtroom - saying that it’s an argument “that architecture defines the rights of a defendant.”

Among the other problems with potential separate trials: defense witnesses could not be readily accomodated in eight separate cases, particularly potential expert witnesses such as the 88-year-old Howard Zinn. Additionaly, lawyers attending separate trials for each co-defendant (in order to adequately prepare for their own client’s case) would be impractical as well.

In the state’s rebuttal, prosecutor Westby questioned if all of the eight were willing to have the evidence against each of them applied against all, and tried to argue that the cases against the 8 were different enough to warrant separate trials. She soon brought up an alternative option to eight different trials: that the trials be split into three, with Nathanael, Erik and Max standing together; Garrett and Luce standing together; and Rob, Monica and Eryn standing together. Westby said she would like to see the trials sooner rather than later - a statement contrary to nearly every prosecutorial action so far in the case.

Judge Warner cut off Westby while she tried to raise concerns about practical issues like potential courtroom seating arrangements and the number of juror strikes each side would get during jury selection. “We haven’t even scratched the surface to address those practical issues… We’ll address those after I decide” on the consolidation motion, she said.

After Westby’s alternative proposal for three trials, each of the 8’s lawyers and their clients reaffirmed their commitment to being heard together. “Such a plan [three separate trials] would present all the disadvantages and none of the advantages” to the RNC 8, said Monica’s attorney Bruce Nestor. “Our clients are committed to a joint trial, and every single issue can be resolved.”

SECOND MOTION - DISCOVERY

Nestor then argued a lengthy motion to compel discovery that has been withheld from the state. Specifically, the RNC 8’s attorneys asked for:

• Information regarding cash payments provided to informants. (The state then stipulated that they would provide this material.) FBI informant Brandon Darby testified in a separate trial that he received $12,500 for his services, but it’s currently unknown how much FBI informant Andrew Darst was paid.
• Information on the hiring process of Ramsey County informants Chris Dugger, Marilyn Hedstrom and Rachel Nieting, all infiltrators in the RNC Welcoming Committee. Dugger and Nieting were promoted shortly after the RNC; these documents would show whether their promotion was used as a carrot to entice them to provide, misconstrue or invent information on the RNC-WC.
• Travel and expense records regarding the $300,000 spent on investigating the RNC 8; these records would show whether or not law enforcement was truly present when and where reports claim they were.
• Documents relating to communication between FBI informants Darst and Darby’s FBI handlers and judges or prosecutors. On August 26, 2008 - 5 days before the beginning of the RNC - Darst was arrested for criminal trespass in the St. Paul suburb of Roseville, but his charges were almost immediately dropped by the Roseville City Attorney. Much later, he was arrested in Minnetrista, MN on felony burglary and assault charges which were later greatly reduced in secretive fashion. 
• Documents relating to the execution of the search warrant for the convergence center at 627 Smith Avenue South. The warrant did not authorize a night-time raid, but such a raid took place anyway on August 29, 2008. If the sheriff’s office knowingly disobeyed the warrant, documents to that effect would help prove an intentional violation of the constitutional rights of the 8 and form a basis for disallowing the alleged evidence gathered through that raid.
• Documents relating to the Mobile Field Forces’ intelligence and training, including any threats allegedly posed by the 8, the RNC-WC, or other individuals or groups. Since the 8 are potentially being held responsible for any and all crimes that occurred on September 1, 2008, such documents would assist their defense.
• Identities of all undercover officers in the streets on September 1st; this information would help determine whether any of the crimes committed on the 1st for which the 8 are being held responsible were committed or incited by the police. The prosecutors claim they have disclosed all the relevant informants, but one notable absence in their disclosures was any mention of agents from the Bloomington, MN Police Department. Ex-Bloomington officer Richard Greelis’ new book (PDF) details his department’s undercover investigation, which included falsely “adopting a sector” in the RNC-WC’s strategy and writing a call with inciting language such as, “We are red-zone activists.”
• Correspondence between the Ramsey County Sheriff’s Office and other agencies, for example, a letter from Sheriff Fletcher to St. Paul Chief John Harrington. Harrington’s response to that letter was only obtained through a local journalist. Said Nestor of Sheriff Fletcher, “If the state doesn’t call him as witness, I guarantee you that we will.”

Prosecutor Westby’s position was that her office has done all it could to provide the information, and that some had not been asked for. “I can’t control the FBI,” she said.

Garrett’s attorney James Dahlquist rebutted that this was not the case, and that much of the information was requested as long as 13 months ago.

THIRD MOTION - COMPUTER EVIDENCE

Computers were seized from nearly all of the RNC 8 before the RNC, as well as from others in the RNC Welcoming Committee, and have not been returned despite requests. The electronic information totals 1.3 terabytes, and much of it was not provided in the dozens of DVDs of discovery. The RNC 8’s attorneys provided Ramsey County with a hard drive for the rest of the data, but the material they received could only be fully opened with a special program - EnCase - used by law enforcement at the cost of $3,600 per installation.

Assistant prosecutor Derek Fitch argued that the EnCase program is the standard one used by law enforcement, and that freeware to do the same thing is available.

Rob’s attorney Travis Snider noted, however, that the available freeware doesn’t actually allow users to view all the data and has a (no pun intended) trial period. He emphasized that the request from the defense was a simple one: either return the computers, or provide a straight copy of the data in a more reasonable format.

FOURTH MOTION - STATE’S AMENDED COMPLAINT

This, the third and most recent amended complaint against the 8, removing the terrorism charges (PDF), was submitted by the prosecution on April 9, 2009 but not yet formally approved by the court.

In addition to the different charges, another amendment to this version of the complaint extends the end date that the conspiracy was allegedly in effect from August 30, 2008 to September 1, 2008 - after each of the eight had been arrested. Assistant prosecutor Fitch claimed that on the 1st, “uncharged co-conspirators [were still] enacting the RNC-WC’s overall goal of shutting down the convention.” Presumably, given the scope of the investigation, authorities know who these alleged co-conspirators were, and yet they have not been charged.

Attorney Nestor pointed out that the complaint is nearly identical to the search warrants filed for the convergence center raid and house raids on the 8, with only one paragraph added to meet the September 3, 2008 charging deadline: an extremely vague laundry list of things that happened on September 1st, and (intriguingly) September 2nd, with no indication of whether the 8 are being held liable for each and every one of them. “Just which of these listed acts are our clients liable for?” he asked, without receiving an answer.

Fitch claimed that despite the language of the complaint, the state does not intend to introduce any evidence from September 2nd.

QUOTES FROM THE PRE-COURT RALLY

Celia Kutz, RNC 8 Defense Committee: We have eight people here who organized together, who have been charged together, and the only way to truthfully represent what happened at the Republican National Convention is for them to be tried together. The organizing that occurred for the RNC protests wasn’t one person’s idea - it was a community event that drew people from across the country.

The 8 have been charged with an alleged conspiracy. Conspiracies don’t happen alone; neither does poitical change. The prosecution is trying to distract us: by separating the eight, they hope to divide and conquer the solidarity that the RNC 8 have found in like-minded people across this country. People who know that dissent is not a crime, that expressing ourselves in the streets is a right, and that change can come through protest, direct action and civil disobedience.

Larry Leventhal, Attorney for Max Specktor: The state wishes there to be something less than a vigorous defense. The state wishes to see something less than the defendants being able to fully assert their rights. They want to be able to pick people off one at a time. They want to say that 50 million dollars can be used for their prosecution, but defendants don’t have that type of resources to band together to fight what the state is defining as a conspiracy where everyone is responsible for the actions of one another.

Well, if they’re responsible for the actions of one another, we’re ready to stand together and say we affirm that nobody did anything wrong who is on the defense side; the violations of law are all on the side of the prosecution and the massive police forces. Not ony is dissent not a crime, but faced with the conditions that were being expounded by the Republicans at the convention, dissent is an obligation.

Steve Clemens, antiwar organizer, co-defendant in September 2009 “Other RNC 8″ trespassing trial: The real conspiracy is the conspiracy to continue an unpopular war which continues adding to the loss of life and the emptying of our treasury. If anything, these young people on trial have had the courage to say no to this madness.

I stand here with the RNC 8, this generation’s “Chicago 8″ - young people who call for these wars to end, for these corrupted systems to be exposed, calling on the judicial system to reign in the excesses of governmental repression under the guise of “national security.” Our national security comes only with justice and equality–not selective prosecutions of people working and planning for change.