RNC Eight case wades into murky legal waters of conspiracy theory

Those competing visions of the so-called RNC Eight (pictured above) will be at the heart of any criminal trials for the defendants — Erik Oseland, Eryn Trimmer, Garrett Fitzgerald, Luce Guillen-Givens, Max Specktor, Monica Bicking, Rob Czernick and Nathanael Secor.

The defendants were rounded up in a series of police raids in the days leading up to the GOP gathering in St. Paul. Led by the Ramsey County Sheriff’s Department, the officers seized smoke bombs, sling shots, bolt cutters, bottles of vinegar, buckets of nails, two-way radios and other items. These, prosecutors contend, were the tools of a criminal enterprise that planned to kidnap delegates, assault police officers and attack buses during the four-day gathering.

The defendants are charged with felony counts of conspiracy to commit riot in the second degree in furtherance of terrorism. In addition, the RNC Eight are believed to be the first defendants to be charged under the Minnesota version of the federal Patriot Act, which was passed in 2002. Under the law, their sentences can be ratcheted up by 50 percent, meaning the defendants could face up to seven-and-a-half years in prison.

But the conspiracy charges take the case into what some experts characterize as murky legal waters. Because the defendants were arrested prior to executing their purported criminal plan, the case will hinge on acts that prosecutors believe they credibly intended to carry out. Another novelty of such prosecutions: The entire group is legally culpable for the actions of each individual.

While conspiracy cases are common in federal court — particularly in taking down multi-state drug rings — they are comparatively rare in state courts.

“[In] state court we tend to be dealing with crimes of violence and a lot of individual actors,” says Phil Carruthers, head of the prosecution division at the Ramsey County Attorney’s Office, which is handling the RNC Eight cases. “It’s kind of more the meat and potatoes of crime: murder, rape, assault. In federal court, they have fewer cases and they can have a little bit better ability to handle more complicated cases.”

In the the RNC Eight prosecutions, as with all conspiracy cases, the defendants were arrested before they could commit the major elements of their alleged plan. “In a conspiracy, no one has to actually commit a crime,” says Peter Erlinder, a professor at William Mitchell College of Law. “The crime is the agreement itself.”

Erlinder argues that conspiracy cases draw “perilously close” to prosecuting people for thought crimes. “If there’s agreement among the people that has an illegal objective, and one of them takes one step in furtherance of the conspiracy, that is enough to make out the separate crime of conspiracy,” he says. “The object of the conspiracy never has to actually occur.”

Conspiracy prosecutions are also unique in that the entire group is deemed legally responsible for the individual actions of each member.

“The reason they are a great benefit to prosecutors is everyone who is a member of the conspiracy is guilty of everything that the others [do],” explains Stephen Cribari, a professor at the University of Minnesota Law School and a former federal public defender. “If they are members of the conspiracy — and the act was done during the conspiracy and in order to further the conspiracy — all the conspirators are deemed to have done the act.”

In the instance of the RNC Eight, this means that if one member of the group actively planned violent acts and then took meaningful steps to commit them, all eight defendants would be held responsible.

Another legal issue that is yet to be settled is whether the cases will be consolidated into one trial. Neither the defense nor the prosecution has formally indicated its preference with the court. But it’s clear that the defendants would prefer to face a jury collectively.

“The defendants have all indicated that their desire at this point is to have them consolidated,” says Larry Leventhal, who is representing Max Specktor. “If the state is contending that they all worked together to achieve something, a trial at the same time with everybody would seem to be mandated.”

But the Ramsey County Attorney’s Office sees things otherwise. “The presumption in state court is that there [are] separate trials,” says Carruthers. “That’s the way it’s proceeding. Obviously if the defense brings a motion to the contrary, we’ll respond.”

Cribari says that federal conspiracy cases are consolidated in most instances. “Generally at the federal level, you try to avoid repetitious, expensive trials,” he says. “It seems easier to me to try co-conspirators together.”

But even if everyone agrees that the RNC Eight should be tried together, the logistics would be daunting. With eight defense attorneys working the courtroom, and with the high-profile prosecutions likely to draw a significant number of spectators, the case has the potential to turn into a legal circus.

Ramsey County District Judge Teresa Warner has already made it clear that any shenanigans will not be tolerated. At a February hearing, she booted one observer from the courtroom after her cell phone went off in the middle of a legal debate.

However the trials ultimately proceed, the cases will come down to starkly different descriptions of the actions of the RNC Eight. Defense attorneys argue that their clients are simply dedicated social-justice activists.

“This is obviously a political prosecution, where people are being prosecuted for their political beliefs,” says Jordan Kushner, who is representing Guillen-Givens, noting that Ramsey County Attorney Susan Gaertner is running for governor. “It’s amusing on one level, but it’s also very disturbing that our clients are being used as political pawns in this way.”

“There’s also the public spectacle of being branded a terrorist,” adds Leventhal. “I think after the trial is over, it will be shown that they are not. During the interim, who knows what people think.”

Carruthers, naturally, sees things differently. He says the RNC Eight cases are about protecting the constitutional rights of citizens whatever their political beliefs. “Even if you disagree with Republicans, do Republicans have a right to have a convention and meet and discuss issues?” he asks. “Do only certain people have a right to expression?”

The cases are unlikely to be resolved anytime soon. The defense team is in the process of reviewing thousands of pages of police documents, surveillance tapes and other evidence that could be introduced at the trials. There will almost certainly be substantial legal wrangling over what materials ultimately can be entered into evidence. Trials are tentatively slated for September.