Judge Bill Price, Iowa District 5C, greeted the 7 defendants facing trial for Criminal Trespass at the Polk County Courthouse. Built in 1902, his regular courtroom was so small that he couldn’t fit in all the defendants or the lawyers – not to mention the 70 prospective jurors and any members of the public coming to support us. Judge Price huddled with our two pro-bono defense attorneys and the two prosecutors while the prospective jurors watched a movie about service as a juror. Next thing I saw was 30 of those jurors filing out of the courtroom and back to the jury pool office. It was discovered that in our type of misdemeanor charge with multiple defendants, we will each get only 2 strikes rather than the 4 we were expecting after a pre-trial discussion yesterday afternoon. With defense and prosecution each getting 14 strikes, and needing a jury of 6, with a reserve in case any jurors were struck for cause, it was decided that we would question 40 jurors rather than 70.
The Prosecution would be handled by David Albretch and Jim Hathaway and our pro-bono lawyers for five of us are Larry James, a former Prosecutor who now handles mostly pro-bono (no charge to the defendants) cases and Glen Downey, a recent resident of Iowa, having moved here from the Pittsburgh area where he was an English Professor before becoming a lawyer who handled many protest/free speech-type cases. He is not a member of the Iowa bar yet but has been given permission to handle our case with Larry’s presence in the courtroom. James is a gregarious and enthusiastic lawyer who also was a former military officer at the air base where we were arrested! Downey shared some of his work defending Greenpeace and other protestors in Pennsylvania as we walked to lunch. Two defendants, Michele Naar Obed from the Hildegard Catholic Worker House in Duluth and Elliot Adams, former National President of Veterans For Peace have asked to go “Pro-se” (represent themselves) so they can retain the right to ask questions of the other witnesses and make their own closing statements. The Judge warned them at the start that they should be aware that we all face a maximum sentence of 30 days in the Polk County Jail so they had better weigh that before proceeding on their own. Both Michele and Elliot are very experienced as defendants in civil resistance cases so they weren’t surprised at the Judge’s attempt to discourage them in going this route.
Voir Dire, the legal term for questioning prospective jurors didn’t start until a few minutes before 11 and the Judge’s questions took us up to a lunch break. Of the 40, there were 4 people of color and the pool seemed to include younger people than my last trial in Winona in February. Normal questions like “do you know any of the lawyers or defendants?, have you ever been a juror before?, and do you have any family members or friends who are police officers?” also included some others likely unique to this case: “have any of you participated in a demonstration?, and do any of you subscribe to ‘Jury Nullification’?” Three or four admitted to the former, including an older man who stated he marched for civil rights in the 60s and was in “peace demonstrations” in the 70s. Later we found out he served in the Peace Corps two years and had helped out at “the Catholic Worker” community in the past! (Can you guess who was the first prospective juror struck by the Prosecution?)
In contrast, a construction worker volunteered that he was responsible for “readiness” with his military unit and felt “harassed” by people opposed to the military mission with which he was engaged. When asked by the Prosecutor how he would respond to someone on his property “who refused to leave”, he quickly smirked and said he’d “turn the hose on them.” The Prosecutor quickly tried to turn his remark into a joke by saying something to the effect of recent “hot” [temperature-wise] days but the man’s demeanor didn’t waiver from grim determination. (He earned his place on our list of those to strike.)
By 2:30 we had selected a panel of three women and three men and the Judge began to instruct them about the procedures for the case. Don’t talk to anyone else (including each other) about this case; don’t do any research on your own about this; don’t watch the news, don’t read the newspaper.
The trial resumed after the 3 PM break with opening statements by a Prosecutor and a Defense Attorney. Albrecht painted the case as an issue about the right to “exclude others from your property… their decision to break the law has consequences.” Downey countered by observing that there are many boundaries and lines in our world today and they sometimes change. “What or where the line is today may not be where that line is tomorrow, or next year, or even next century… Where one person sees a hard line or boundary, another sees an opportunity for change or advancement.” He concluded that the jurors should listen to all the facts and evidence … “and then you follow the law and your conscience and do what is right” because in a democracy, that is what you do.
Day 1 concluded with 3 witnesses for the Prosecution. Chief Master Sergeant Jeff White was in charge of day-to-day security at the 132nd Iowa Air National Guard Base on the blustery St. Patrick’s Day morning that we were arrested. He described his duties and how he called a higher-ranking officer on duty to issue the order for us to leave after 7 of us stood in front of the closed gate by the base entrance. When asked if the people who were later arrested were “peaceful”, he would only grudgingly say, “they were non-compliant”. When pressed further by Elliot Adams, one very schooled in both military procedure and principled protest, Chief White admitted that no one attempted to go over the fence, under the fence, through the fence or around it. Even though he stated the “defendants blocked the gate”, he later admitted that the military had already closed the gate before the demonstration started and instructed all base personnel to use a different entrance/exit than where the anti-drone protestors were. When pressed about exactly where the base property began and public property ended, he admitted that was the responsibility of civil engineers rather than security forces on the base.
Major Ken Hartman, the Wing Executive Officer who also serves as the Public Affairs spokesperson for the airbase told the jury that he served as “the voice of the Commander” at any protests outside the base. He said the 7 of us were creating a “safety hazard” in that we were “impeding traffic flow” but later admitted the gates were already shut before we “stepped over the line” and no one attempted to enter or leave the base from that entrance while we were there. He was the one to issue the formal warning to us to leave or we would be arrested and he then asked the Des Moines police officers to arrest us. He admitted that it “was all very cordial” and He didn’t remember us asking him to speak with the base commander or to deliver the letter of indictment we carried with us. When pressed, he agreed his did not wish to engage in any conversation with us.
However, Lt. Russell Schafnitz, the Des Moines Police Department Commander of the STAR (Strategic Tactical Response Team) Unit was the arresting officer on the scene. After identifying all the defendants from their photos taken during the arrest and then locating us in the courtroom, he told the jury that the defendants told him they “would leave if they were able to have a dialog with the National Guard members first”. He said we discussed the First Amendment with him as well as our desire to “seek a redress of grievances”. He made a point to shake Michele’s hand after he left the stand while exiting the courtroom after she asked him, “Did you handcuff me?” He replied, I didn’t handcuff anyone that morning and Elliot Adams added how appreciative all of us were by the way we were treated by Schafnitz and the other Des Moines police at the scene.
As the clock approached 4:30, the Judge called it a day, stating we should be in the courtroom by 8:15 tomorrow. Our lawyers want us to gather at 7:30 to discuss an “Offer of Proof” we will submit to preserve some testimony in the event of an appeal since the Judge previously granted a Motion in Limine which states “The defendants may present before the jury the general reason that they were present at the place of arrest (eg; to object to the presence of drones) and the general outcome they were seeking but are prohibited from expounding on the reason they harbor the belief as to why the conduct they were protesting was wrong. This Court finds that as a matter of law the philosophical reasons for the conduct of the Defendants is not justification as a matter of law and is therefore not relevant to the trial of these cases.”
This is part one of a two-part series. Read ‘Drone protest trial, day 2 – with a verdict.’