Transform Now Plowshares: Preliminary Hearing—Not!
Note: the Transform Now Plowshares story is breaking nationally, picked up on the Reuters newswire last night, on MSNBC’s web site, and with a four minute segment on ABC News with GCI animated characters standing in for our three.
As the afternoon wore on in Judge Clifford Shirley’s courtroom it seemed we might never get to the question of the day—would Mike Walli, Megan Rice and Greg Boertje-Obed continue to be held in Blount County Jail, or would judge Shirley release them? Stay tuned…
As Judge Shirley began the proceedings, Francis Lloyd, counsel for Megan Rice, reported that hypothermia, possibly brought on by the failure to provide Megan with her medicine, might compromise her ability to participate in the hearing. Francis had already draped his raincoat over Megan. Court took a recess why officials scrambled to locate a blanket. In the end, Judge Shirley reappeared with a space heater to direct on Megan and a staff person found a sweater and blanket.
We began with the announcement that the government had submitted a new criminal complaint, charging a felony—that the defendants had, at a place within the special maritime or territory of the United States, namely the Y12 National Security Complex, did willfully and maliciously destroy or injure or attempt to destroy or injure a structure, conveyance, personal or real property. The new penalty is a $250,000 fine and not more than 5 years in prison; not more than 3 years supervised release; and a special assessment of $100.
The defendants then exercised their right to a preliminary hearing on the charge, and it was set for Thursday, August 9, 9:30am. The judge noted that if a grand jury returned an indictment in the meantime, the Thursday hearing would be converted to an arraignment. In fact, many observers believe this is likely.
The court then turned to the question of detention.
Assistant D.A. Melissa Kirby recited the reasons the government felt it necessary to keep Mike, Megan and Greg in jail, declaring the latest charge to be a crime of violence, citing the definition of violence in the law, which includes violence against real or personal property. Ms. Kirby also cited two military cases at Camp Garcia where the court ruled entering a military base to be a crime of violence; she cited past convictions of Mike (1995 in Washington, and 2006 in North Dakota) and Greg (1987 in Washington, DC; 1988 in Philadelphia, PA) for similar crimes of violence.
In response, Chris Irwin spoke for Mike. He noted that he had received the government’s citation only seven minutes earlier, but he pointed out striking differences in the cases. In the Camp Garcia case, the two defendants had interrupted live-fire training exercises. He then pointed out that in one of the government’s cases, the defendant had, actually, been granted pre-trial release by the judge; in the other, they were held for fourteen days, until the conclusion of the military exercises, and then released.
After Francis Lloyd concurred, the judge pushed forward, saying he believed the cases were not on point and did not mirror the current case and, in any event, the defendants were released. Ms. Kirby made a vain attempt to re-spin her argument.
The judge said, “Not similar to this case. But there are other cases. The question is: Does this constitute a crime of violence? That’s not for me to decide. The definition is in the Act, and it includes injury to property. So the government does qualify to seek detention.”
At this point, the judge polled the defendants as to their desire for a hearing on detention. Mike Walli said he wanted a hearing as did Megan Rice. The judge noted that Greg had already submitted a waiver and indicated he would not accept any conditions as terms for release should the judge offer them. The judge then dismissed Greg to the marshals saying, “Mr. Obed, you are free to go.” But of course Greg was very not free to go. He was only free to relocate to the holding cell in the court.
Ms. Kirby then turned to the meat of her argument for why the defendants should be detained. She skipped past the “risk to flee” argument and went for danger to the community, defined partly by the nature of the crime for which they were charged. She talked a long, long, long, long time, often repeating herself, stepping away from the podium to consult her colleague and notes, then returning to reiterate that she “absolutely believes” the defendants present a risk to the community. As she piled argument on argument it appeared she had no confidence in any one argument but thought she might succeed if she could bury the judge under the weight of a thousand little reasons.
“They schemed and planned and coordinated this event. They snuck into the facility under the veil of night. They entered the protected area, where deadly force is authorized. In a deadly force area, open gunfire heightens the risk to other employees, janitors, other people,” said Kirby. “They demonstrated they don’t value the risk of that situation. They don’t value their own lives. They lingered to spray paint on the walls of the building even though they could be killed. They did it anyway—they were not concerned for the guards or other bystanders. They will offend again.”
She set out on another tack. “These people are a catalyst for violence. There intentions may be peaceful, but they are a violence catalyst. Some other copycat will be shot because of what they did. They caused Y12 to be suspended for several days. If they are released, they will be emboldened to go again.” And it went on and on and on.
Finally she stopped. The judge said, “Now as to the danger, I’m not sure danger to the defendant qualifies.”
Kirby: I agree. They put everyone at risk.
Judge: Who else was out there?
Kirby: I don’t know. Bear Creek Road is 150 yards or meters away from the exclusion zone. Had gunfire taken place, people coming and going, anyone was at risk. I’m certain they have people there, a night shift, janitors… Whatever the case, they put people at risk. And quite likely, other people look at this and will be inspired and emboldened. These people are celebrated by their colleagues—this is a badge of honor. They will do it again. It is escalating. I absolutely believe they are a danger to the community.
Judge: Was anybody there?
Kirby: I’m certain.
Judge: I’m not. Why are you?
Kirby: There were security guards there.
Judge: But the other people you mentioned.
Kirby: I don’t know.
Judge: I need clear and convincing evidence.
Kirby: There was the potential, whether anyone was there or not. They believed they might be shot and killed and were willing to pay the ultimate price. They were not concerned about other people…
…and she was off again.
The judge pushed her one more time on the presence of other people, then moved to the defendants. Chris Irwin noted the prosecution had not met the requirement of clear and convincing evidence and that, in fact, the evidence showed the court could be reasonably certain of Mike Walli’s appearance when required as he had never failed before.
The judge said flight was not the issue for him. It was compliance with the law. Not re-offend.
Chris said the facts of the past stand on their own. The government has not shown Mike ever to have violated terms of release. He has always met the conditions of his release.
That’s a strong argument, the judge said. Yet he keeps doing this. And somehow, if I put conditions on him, he will magically abide by the conditions set by this court. I just don’t understand this.
Chris attempted to relieve the judge’s confusion. “He’s a man of principle, Your Honor. When he gives his word, and makes a promise to this court, he will keep it.”
The judge shifted. “Is he willing to promise he won’t violate the law? That he won’t trespass on any property? Mr. Walli, is that the case?”
Mike spoke clearly and firmly: It is, Your Honor.
Now Francis Lloyd spoke for Megan: “The government is asked to convince this court that no condition will reasonably assure appearance and community safety. Congress used these words intentionally—conditions, reasonable. So you are being asked to forecast that there is nothing that can reasonably assure my client’s appearance or the safety of the public.”
Francis went on to note that the facts of the case that qualify the case—the definition of violence including property, rely on the offense charged. “I understand the court has made this threshold determination. I submit that in considering the factors under subsection G-1 a different analysis is appropriate. Not a statutory definition, but what a consideration of what sort of violence is needed. The government’s affidavit indicates a level of violence far different from violence that would threaten any person. Paragraph 11 describes what the accused possessed, their statement or letter, asserting their faith and love for nonviolence and promoting their philosophical belief regarding nuclear weaponry. This is not violence directed at a witness or an officer. They were unarmed. This should play a part in the determination that there are no conditions that will assure appearance or safety of the community.
“Since my client’s arrest,” Francis said, “the likelihood of my client or any other person undertaking entry into this area is highly unlikely. And I am not being flippant.” Francis concluded by urging upon the court, despite the government’s position, there are or can be conditions that can reasonably prevent harm to anyone else and assure the presence of my client at trial, given the fact that they have a strong desire to present their views to the public.
The judge asked what conditions might be applied.
Francis: That they not violate any law. That’s a fairly common condition.
Judge: In her case, that hasn’t been a deterrent factor. What could I do that would reasonably assure…
Francis: True, everyone is subject to the laws of the land. But including that requirement heightens the penalty; the requirement can be enhanced by your judicial order. You can require them to remain a specific distance from Y12 or any facility of the Department of Energy.
Judge: Is she willing to agree she wouldn’t trespass if she were released?
Megan: Yes, certainly. In the interest of a fair and just trial.
The judge gave Prosecutor Kirby one more chance, and she repeated her argument in detail, throwing in the upcoming Hiroshima Day observances at Y12. “There description of nonviolence is not right,” she said. “They are willing to die for what they believe. That’s violence.”
As the judge moved to close the hearing, Francis Lloyd rose to make one final point. “The government suggests the defendants’ willingness to subject themselves to harm is violence according to the law. But the law says, ‘of another.’ Any argument that says any person, simply by exposing him or herself to a risk of danger makes it an act of violence—makes any protester anywhere surrounded by hostile forces a violent person. It just is not so.
Judge Shirley quizzed Mike and Megan about where they would go, and then took a recess. We waited. The marshals were kind enough to let us have a long chat with Mike. Forty minutes later, the Judge reconvened the hearing.
“I commend both sides for arguments well made; they made my decision more difficult. I feel a little like Tevye in Fiddler on the Roof. ‘On the one hand…but on the other hand…and on the other hand…’ In the end, I must make a decision.”
He then issued his opinion verbally, talking us through his thought process. He said he sided with the government that the same threshold for violence applied. But he also agreed with the defense that he should look to the nature and circumstances in evaluating the danger. He said he did not agree with the government’s argument that the willingness to risk one’s life makes one violent because someone might respond. Still, the weight of the statute, not because they engaged in violence, tips the balance toward detention, even if only slightly.
He then noted the defendants had not engaged in any typical act of violence. It is possible their actions are a catalyst that put in motion things that contain danger. But they are presumed innocent. This factor argues for release.
He then addressed the question of their history, and noted that they had a history. “Some day these two are likely to participate in trespass behavior, but not while they are on release. Mr. Walli has a record of complying. There is a rather odd principle of compliance with regard to these defendants. They seem to feel if there is a general law they disagree with on principle, they are willing or even compelled to violate it. But if it is a court order, they are compelled to comply. I am at a loss to explain it, but it seems to true. This argues for release.”
Finally, the judge addressed the nature and seriousness of the danger to the community if they were released. “I don’t find the government has proved the danger is great or wouldn’t be removed or substantially reduced by conditions. In fact, it could be eliminated.”
Judge Shirley then declared the government had failed to prove by clear and convincing evidence that the defendants pose a danger, and he would release them subject to conditions.
He then quizzed Mike and then Megan as to their willingness to comply with conditions. “Do you promise?” he asked Mike. “Do you give your word?”
He asked Megan the same. “I do so promise,” she said, rising. “You may remain seated,” the Judge said kindly. “But I can’t see you,” Megan said. “Okay,” replied the judge, “I am not asking you to swear, but I am asking you to promise according to your spiritual nature.” Megan assented.
The conditions were standard fare: Don’t break any laws. Stay off federal property (except to come to court, clarified Francis Lloyd). Report to probation, get permission to move, which would generally be freely granted. Limited to their home districts in Washington, DC and the Eastern District of Tennessee and travel to and from court. Surrender passports. No contact with witnesses, no firearms or destructive weapons, subject to heavy penalties if violated.
With that, after considerable discussion about where they would stay, and a last desperate attempt by the prosecution to “stay their release,” the judge adjourned court. Mike and Megan will be staying at the Riverside Nonviolent Community House with Lissa McLeod and Jake Weinstein until their next court appearance on Thursday, August 9. Letters can be sent to them at 4627 Martin Mill Pike, Knoxville, TN 37920. And the phone at Riverside is 865 609 2012.