Day 4 of the frac sand trail: The verdict comes in, the struggle continues


Part one

At 9 AM the jury was seated and defense witnesses continued their testimony. Veteran activist and Catholic Worker farmer, Mike Miles was the thirteenth defendant to take the stand. With a degree in Zoology and a Masters in Youth Ministry, Mike told us the premise of one of his seminary courses was that one cannot know God unless you are doing justice. He said he has found himself “walking up driveways I shouldn’t have – because of my commitment to nonviolence.” He knew if he got arrested he would have his “day in court and hopefully be able to tell the truth, the whole truth, to a jury serving as the conscience of the community.” However, the Judge quickly told the jury to completely disregard Mike’s statement that he felt confident the morning he walked on to the frac sand loading site at the Winona port because he had been acquitted before by a jury for doing a very similar thing under a Claim of Right defense. When asked by defense attorney McCluer why he stayed and risked arrest after being asked to leave by a police officer, Miles said because of the urgency of this issue: how frac sand is used to extract more oil and gas out of the earth. “We must do everything within our power [to try to prevent or mitigate climate change ]”, he responded. When asked if walking on the property was the only recourse left, Miles cheerfully said, “No. There are many arrows in the quiver of nonviolence” and he has used a variety in his long history of activism.

Mike Abdoo became the last defendant to testify after a discussion the previous evening about our lawyer’s desire to keep our testimony brief so the jurors could get the case before noon. He is a recent member of the Lake City Catholic Worker after having been a Winona Worker previously. In that role, he “attended numerous public hearings, took part in public protests, wrote letters”, and other myriad activities over 1 1/2 years trying to stop the frac sand industry. He described sand on the sidewalks, sand coming in windows, clogging air conditioner filters as the mining of silica sand exploded in the area about two years ago. His wife is now expecting their first child and “she drinks out of a well – that’s terrifying” when recognizing the threats to clean water that this short-term profit industry can cause. He wanted to do “whatever we could do” to stop this.

The defense rested by 9:35 and the jury was excused while the judge and attorneys discussed his jury instructions. Our lawyer requested a broader instruction on Claim of Right, suggesting Hennepin County’s Judge Jack Nordby’s instructions but Judge Jeffrey Thompson ultimately disagreed. He said as judge he was trying to keep the issue focused on our actions rather than the content of our beliefs. He described how he marched in protest during the Vietnam War after the invasion of Cambodia while a student at Carleton College. But here in this court, we need to be “content neutral” in deciding this case. We need a standard appropriate for any kind of protest. He went on to list a variety of protests which have come before courts including land mines, the people from Westboro Baptist Church, the Klu Klux Klan, abortion, … citing several cases he has read on appeal.

After denying an expansive view of Claim of Right, he also denied McCluer’s request for an instruction on a necessity defense saying that the action taken must directly address the harm caused and the danger must be imminent. In this case he felt defendants still had legal remedies. “Democracy is a messy process. Over time, over a long period of time, maybe you can change people’s minds – if you are lucky. But this doesn’t mean you can break the law. It is a difficult process to change peoples’ mind but the law doesn’t allow you to break the law to do so. Civil disobedience means you break the law and take the consequences.” He then quoted a favorite TV crime-fighter, Baretta, saying, “Don’t do the crime if you can’t do the time.”

When the jury returned, the Prosecutor said he would not call any rebuttal witnesses. So he was asked if he wished to make his closing arguments. He gave “the State’s view”, saying even “polite” persons cannot break the law. “Just because the defendants were peaceful doesn’t mean they can break the law. The words “frac”, “sand”, or “silica” won’t be found in the Judge’s instructions. Trespass is the crime, not protesting. These people made a conscious decision to break the law. This was civil disobedience, a planned event. A deliberate act. Purposely breaking the law. Their strong feelings turned into a criminal act. I urge you to follow the law in this case. They [the defendants] should be held responsible for that.”

Richmond McCluer rose to give the closing for our defense. He asked the Judge for use of the courtroom easel so he could draw a crude “thermometer” with a vertical line with 0% on the bottom, a 50/50 line in the middle, and 100% at the top. His defense asks a clear question: “is it [the case] proven by the State? Every element? The police cannot convict them of a single crime. Even the Judge can’t unless the defendants waive their right to a jury trial. Only the jury can do that.

On his diagram he started speaking and writing words as he progressed up from zero to 100. “Hunch”, “suspicion”, “strong suspicion”, “probable cause”. Above the 50/50 line in the middle he continued with “preponderance”, “clear and convincing”. At the very top, by 100% he wrote “certainty”. Just below that level, he said and wrote “proof beyond a reasonable doubt.” He proceeded to inform the jury that in a civil trial 51%, anything over 50%, “preponderance”, is enough to decide a case. But not in criminal cases. “No one can be 100% certain but we do ask for proof beyond a reasonable doubt.”

“Some defendants told you they did it [trespassed] to prevent a greater harm. Some said they had no choice [after trying other legal means]. Some said they believed they had a Claim of Right. Some simply did not have the charges against them proved. The defendants acted with the knowledge that only the community can convict them. It is the conscience of the community and it has given the responsibility to you [the jury].” He illustrated his point with the story of two dogs in Winona, concluding, “What do 99% of people do when they see that poor dog outside in the freezing cold? There are a very rare few who cannot sit idly by. These people [pointing to the defendants] could not sit idle and I’m honored to represent them. I’m asking you to do justice.”

Prosecutor Flaherty used his rebuttal time to tell his jury that “any fact can be proved by direct or circumstantial evidence.” After describing the latter, he said, “They [the police] did a good enough job in this case. … When you do an act, there are consequences. They made a conscious choice to protest and break the law or protest and not break a law. It is not about beliefs but what you did. Law punishes you not for what you believe but what you did. This case is about deliberate violation of the law and you should hold them accountable.

The jury instructions were given at 11:35 and 20 minutes later they left the courtroom to begin deliberations.

Part two

At 3:45 PM, the solemn jury reentered the courtroom and I knew immediately that we were found guilty because they did not look at the defendants nor did they smile. Juror #2 handed the 20 verdict forms to Judge Thompson who looked them over before reading them in alphabetical order. The jury finds defendant Michael Abdoo, guilty. Then 19 more names were read, one at a time with the word “guilty” as the choral refrain. I think all of us were a little shocked because we were certain that several defendants were not properly identified by the police or were not warned properly according to the testimony heard. I suspect even the Judge was somewhat surprised in one or two cases.

But ultimately, all of us did the action together; it is fitting that we are all treated alike.

The Judge asked the Prosecutor if he would give his recommendation for sentencing since some of the defendants had traveled great distances to be there and would prefer not to have to return for sentencing at a later date. Judge Thompson said he was sure some of the defendants probably had prior records but it was his preference to sentence us all alike if the Prosecutor didn’t object. He did not. The Prosecutor recommended “a stayed sentence with unsupervised probation for one year under the condition that they remain law-abiding and in good behavior, stay away from CD Corp properties and the Hemker facility on Old Goodview Road, and pay reasonable restitution.”

Defense Attorney McCluer turned around to huddle up with the defendants still in the courtroom and asked us what we thought. He was surprised (and pleased) that a fine was not tacked on to the request. We all agreed to the fairness of the first part but were all opposed to paying any restitution. McCluer told the Judge we were OK with the Prosecutor’s recommendation including the omission of a fine. The Prosecutor then said it was an oversight, not a deliberate omission.

Before passing sentence, the Judge asked each defendant if he/she wished to make a statement. There wasn’t enough time for me to capture each comment. Most defendants said they were morally opposed to paying restitution to companies profiting off of frac sand. “It would be morally unethical”, “it is morally abhorrent”, “it would be a moral hardship” were a few of the phrases. Matthew Byrnes indicated he’d rather be held in contempt – “put me in jail” before voluntarily paying it. Many Catholic Workers stressed they had little or no income but were willing to do service in educating the community in lieu of restitution.

I took the time to thank my co-defendants for making me an “honorary” Catholic Worker after the article in this morning’s Winona newspaper said I was a “Minneapolis Catholic Worker”. I told the judge I was grateful for being able to act together with these people.

John Heid said that the Judge had remarked at the beginning that this was going to be a new experience – trying more than 20 of us at a time. John said Gandhi talked about “experimenting with truth”. That’s what we did and it is likely we will be back before you again (and again). John continued, “I’m not promising to be good, but I am promising to try to follow my conscience.”

Diane Leutgeb Monson, one of the coordinators of the retreat and action chose not to testify today in order for the jury to get the case sooner. But she did make a brief statement before sentencing which included observing that this experience is part of the journey – now we have to carry the message out to the community. Dan Wilson said his actions were on behalf of all. “I did this for you [Judge Thompson] and for your kids and their kids.”

Our attorney said he felt so moved by John Heid’s statement that he’d like to make a comment as well. He spoke of an ancestor of his who was sentenced to death by Queen Victoria for his part in the Irish struggle against England. “If you grant us some leniency, we’ll try to do better next time.” McCluer smiled, knowing the reference was double-edged, referring to the defendants as well as his ancestor. He continued, “He was sentenced to death but was able to escape and eventually went to Mexico and fought with the Irish Battalion in the Mexican-American War.”

The Judge followed the recommendation of the unsupervised probation with conditions and added a $200 fine/restitution and the mandatory $85. court fees imposed by the state. He noted the many objections to restitution and said you can consider this a fine or restitution. You have 90 days to pay it. If you don’t, it will be turned over to a collection agency for collection and they’ll charge a recovery fee as well. McCluer later told us he could have made it a condition of our probation but chose instead to past it on to a court-collection firm if we don’t pay.

The entire experience – preparation, action, trial, sentence was joyful “experiment” in nonviolence. I’m glad I took part. An on-going “experiment with truth.”