Roll call!
The 8:
Jordan Kushner representing Luce Guillen-Givins
Bruce Nestor representing Monica Bicking
Ted Dooley representing Erik Oseland
John Bachman representing Garrett Fitzgerald
Bob Kolstad representing Nathanael Secor
Larry Levanthal representing Max Specktor
Travis Snider representing Rob Czernik
Barbara Nimis representing Eryn Trimmer
The Prosecution:
Heidi Westby
Derek Fitch
The Judge:
Theresa Warner
The court date scheduled for Thursday, May 6th will be canceled due to a police officer’s funeral.
Motions to be considered at these hearings:
Motion to suppress evidence from convergence space and house raids
Motions for bail reductions
Motion for discovery regarding IndyTACT
Motion to dismiss (on behalf of Luce Guillen-Givins) due to selective prosecution
Motion to dismiss for lack of probable cause and request for Florence hearing
State had filed motion to compel witness disclosure, but it was withdrawn because they worked it out with the defense attorneys.
They heard arguments about the Florence hearing first.
Kushner argued that there was no probable cause for the conspiracy charges, because there was no specific evidence about the defendants entering into an agreement to commit the essential elements of the crimes. He argued that the interpretation of the law that they were using violated free speech rights and the constitution.
Gov’t argued that the motion for a Florence hearing should be denied because there was no exonerating evidence and it was unclear what elements they were challenging. Also argued that they were just trying to interview the government’s witnesses as a mini trial or a fishing expedition, and would do things inappropriate for a hearing, such as challenging witness credibility. They cited a case called Rud in which the defense was not allowed to interview a victim at a Florence hearing. They also wanted more disclosure from the defense about witness interviews and the expected testimony. He said that they don’t just get a Florence hearing because they want one, but that they have a burden of proof.
Kushner said that the gov’t was “gravely overstating [the defense's] burden”. He also said that the government had three months to respond to their motion for a Florence hearing and didn’t request any of these things. He said that the evidence they were using was the government’s own discovery, they would just show the entire story behind the parts that were used in the complaint. It wasn’t an issue of credibility of witnesses, just getting the whole truth instead of part-truths–and that the whole truth would exonerate the 8.
Nestor added that the Rud case is not applicable because of the circumstances, and that there is no case law saying they can’t call any government witnesses for the Florence hearing. He argued that the things mentioned in complaint did not constitute evidence that the RNC 8 shared intent with the people engaged in illegal activity at the convention (for example, Glenn Dyer [an RNC felony arrestee] staying at Eryn, Monica, and Garrett’s house (Attica) didn’t mean that they planned with him to do the things that he did). He also mentioned that there would be alibi-type evidence, such as about incidents mentioned in the complaint that defendants were not present for. The example he gave was about how Monica Bicking left the crimethinc. convergence early to do homework, but evidence from conversations that took place there is being used.
The judge asked if it was just a matter of interpretation of evidence, but Kushner said that it’s more than that, and that the complaint is unreasonable and leaves things out.
Fitch said that even if a defendant didn’t say a particular things, each defendant is on the hook for the others’ words as if they came from their own mouths–hence the conspiracy charges. The state requested an offer of proof from the defense. The judge ordered that the defense needed to offer individual arguments and clarification for what they are challenging, and if she was satisfied with it they would move forward.
Kushner started: he said that he planned to show that the RNC-WC video was clearly a joke and a first amendment issue. He also expected the witnesses to show that the defendants were not involved in discussions mentioned in the complaint, and actually specifically rejected violent tactics mentioned by other people. He said the the video made by Oseland was also entertainment, and that Oseland was not even a member of the Welcoming Committee. At the Action Camp the defendants demonstrated acts of civil disobedience such as lock downs, but not violence or property destruction. He talked about the “Lilydale tennis club”, and said that there was evidence that Erik spent the night there but not that he conspired to do anything. He talked about the literature seized at the convergence space–that there were thousands of pages and no evidence it had anything to do with the defendants. He raised a first amendment issue around being charged just for being in the presence of literature. He said that the evidence itself would show that the defendants are not guilty, and that the defense needed the opportunity to interview witnesses and go over the tapes to prove that.
Nestor said that if the hearing didn’t happen he would file all of the tens of thousands of pages of documents and hundreds of hours of video included in the discovery to show that there was no evidence of guilt. He mentioned that Crimethinc. is a separate organization and the WC did not organize the Crimethinc. convergence. He said he wants to call Betsy Raasch-Gilman, another former Welcoming Committee member, to testify that the informant Panda (Andrew Darst) was the one demonstrating how to slash tires at action camp, and that Czernik and Fitzgerald were roleplaying as cops. (Bicking did not attend at all). Items seized in the convergence space raid were not thoroughly examined, such as “glass jars containing unknown substance”–these types of things were used as vague innuendo of criminal intent and are unsubstantiated when considered in context. The RNC Welcoming Guide, which was published by the RNC-WC, makes no violent references. Other literature at the Convergence space was not distributed by the WC, was on tables, and can be freely found on the internet or in libraries. He said that Jay Maher could testify that the shed at Attica was unlocked, and the items within it could have come from any of the dozen or so people staying there. There is nothing linking Monica Bicking to the caltrops allegedly stored in the garage–and the other items in the garage are common tools. There is no evidence of a conspiracy at all, and what evidence they have is exonerating.
Nimis said that Eryn wasn’t at action camp or Lilydale, wasn’t involved in the video tour of “points of interest”, or inflammatory workshops or literature. He was on tour but his discussions did not involve violence, just protest. Chris Dugger, the informant, was the one talking about blowing up cop cars.
Bob Kolstad said that Nathanael was mostly involved in getting food for the protesters, and that the protesters would have come and done their thing with or without the WC.
Ted Dooley added that the FBI informant instigated a lot of the sketchy stuff that was suggested.
Larry Leventhal said that the witnesses would prove that the “agreement” was surmised, not concrete. Max was not at the action camp or Lilydale. Items seized in his car were common items that ‘could be given imaginative uses’. Presence at meetings is not evidence of guilt. Informants were the ones suggesting sketchy stuff, and the probable cause does not exist.
John Bachmann said that Garrett is being construed like Forrest Gump–accused of being clairvoyant and time traveling and being everywhere and nowhere at once. He said that Garrett wasn’t, in fact, at the Seattle 1999 WTO and wasn’t in RABL [Revolutionary Anarchist Bowling League, defunct Twin Cities anarchist group], and that those were defunct/over and had nothing to do with the RNC. Garrett wasn’t at Lilydale. He allegedly went to a McCain rally and did… nothing. Bachmann suggested he may have been going to be “enlightened”. He had everyday items in his house. The complaint said he had “disguises,” which turned out to be an apron and a CRT uniform that he was certified for. He did travel to get people to go to the RNC, but there’s nothing wrong with that. He left Crimethinc on the second day with Monica. John argues that Garrett engaged in no illegal activity–only hyperbole, which is not a crime.
Travis Snider said that household goods at the Food not Bombs house raid were not for rioting, and that Czernik taught nonviolent civil disobedience tactics at the action camp. The tape recordings in discovery show that WC was a logistical body. He also said that the Welcoming Committee had difficulty reaching agreement on anything, much less a conspiracy to riot.
Fitch then flipped out about not having transcripts for the tapes. He suggested that the questions the defense were asking were for trial, not for the court to determine (whether video was funny, whether literature was inflammatory, whether action camp stuff was “goofing around”).
The judge ruled that they would have a Florence hearing, with the warning that it was not a trial, and that all they would do was establish whether there was probable cause.
First witness called (by defense): Tony Samec, Special Investigations Unit of Ramsey County Sheriff’s Dept (RCSD).
Samec was incredibly evasive and borderline combative while undergoing questioning by the defense. First they went into his training and job history. He’s been with the RCSD since ‘06. Before that he spent five years with the Secret Service. He testified that he helped with the investigation by providing nearby “backup” when informants were undercover. He said that he had no actual contact with the informants. He is one of the signing officers on the house and convergence space search warrants, but claims to have had no direct knowledge of the information that he swore to on the warrant applications. It all came from security briefings, “group e-mails”, and other officers who he could not identify.
He said he had information that Garrett was in the WC video, but none of the other defendants. When asked why his description of the events in the video failed to give full context, he said that there were a lot of things left out, and it wasn’t a narrative of the entire video. When asked specifically by the defense why he didn’t include the information that the molotov landed in a grill, he said “because I didn’t include it.” He said he “didn’t know” what else was in the video. Defense introduced the video as evidence, and played it to giggles from the crowd.
They then talked about the pReNC. Samec testified that the CRI attending the pReNC was working for the FBI, not Ramsey County. Information was given to Samec verbally and in writing. Information from the pReNC 5.3 was recieved from “multiple sources” including the e-mailed report backs by the protesters in attendance. Samec said that there were multiple meetings during the pReNC, and that according to the FBI reports there were multiple defendants in attendance.
Next they discussed whether Erik Oseland was a member of the Welcoming Committee. Samec testified that he had seen e-mails from Erik over the Welcoming Committee’s e-mail list “Thirdcoast”. He testified that he did not know what specifically made someone a “member” of the WC. He said that affiliation with other members and attending meetings indicated to him that Erik was a member.
He was asked a number of questions about information in the complaint that he signed, and indicated that he has no personal knowledge about any of it. He said that he got his information from verbal and written reports, and FBI bulletins. He said that he did not know who was in charge at the convergence space raid (despite being there). He said the Somerhause (agent in charge of FNB House raid) told him to add Luce and Nathanael as leaders of the Welcoming Committee.
He testified that he participated in the house raid at 3500 Harriet, where gas masks were found. When asked whether gas masks are used to destroy property or hurt people, he said “I don’t know.” When asked if they are weapons, he said that he had seen weirder things used as weapons. After some prodding he admitted that it is not their primary purpose. He said that he did not know the intended purpose of the ninja foot spikes found at the raid. He said that he did not see items seized at the other houses.
Samec is asked about whether the RNC Welcoming Guide says anything about harming persons or property. He says that it talks about a strategy of “swarm, seize, stay” and “hard and soft” blockading tactics such as lockboxes, but no specific plans to do harm to people or property. Oh, but wait! It talks about “autonomous alternatives” that “don’t bring the hammer down on community projects!” It talks about “not letting them suppress our voices” and being “smart and dangerous!” But no harm? Well, no…
He further explains what a lockbox is and how it is used as a blockading tactic, and agrees that they can be considered non-violent civil disobedience.
He is then asked if there is a policy in place to prevent sexual violence. There is. He reads the sexual assault policy out loud, ending with “consent is the presence of…yes, not the…absence of no?” He is clearly unfamiliar with this concept, and seems very confused by it.
Samec was not present at Max’s arrest, but knows he was at meetings, because the informants and undercovers said so. He was at the raid of 3240 17th Ave S. He only spoke to one undercover (Hedstrom), who prepared reports about who she saw at meetings and what they said. Was Andrew Darst a reliable informant? The FBI were using him, and had used him in previous matters. No information on what these previous matters were. He had no contact with Chris Dugger, but said that “other investigators had worked with him on previous investigations,” including Commander Clark.
Is there any evidence that any of the defendants intended or planned to cause harm to people or damage property? It is said that Max told Darst that he had made 12 caltrops in 2008, although Samec has no personal knowledge of this or anything else. (Kushner gets visibly annoyed at this point and asks Samec if he knows anything and if he prepared at all. Samec says that he did view FBI intelligence bulletins and other reports, including at least one he had previously stated he didn’t recall.) There is nothing about Darst’s reliability in any of the documents. Eryn allegedly attended WC meetings, but that’s not illegal. He sent out invitations to affinity groups, was involved in looking for the convergence space, and allegedly discussed disabling cop cars with Garrett according to informants. Monica, Garrett and Eryn were at the CrimethInc. convergence in Waldo, WI, discussing WC plans–to blockade. Is blockading harm? “Depends upon who’s doing it.”
Was there anything specific in regards to Rob or Luce having plans to commit violence to persons or property? well, Luce was at action camp, but no specifics. How about Monica? Well, she was at the CrimethInc. convergence, where there were workshops on how to pull police officers from lines and beat them…[This didn't actually happen, to our knowledge.] There’s nothing in the complaint, but there might be something in some report somewhere. At this point, Jordan gets annoyed. You were familiar with the reports at the time you drafted the complaint, right? So it would be important to include specific allegations toward defendants in a report that would regard violence towards persons or property in a riot charge? “complaint isn’t an all-encompassing document…” but “didn’t say it wasn’t important…” He did put in a memo asking to authorize further investigation into the WC, and another about investigation of Luce specifically, based upon vague stuff relating to her political associations.
Fitch cross-examines Samec, who is suddenly very cooperative with him. Samec didn’t write the complaint, he just compiled info from various agencies, not just personal observations, and gave it to the county attorney to write. The complaint is factual, but doesn’t contain the entirety of the investigation; it would have been very long if it did!
Fitch tries to further establish probable cause through innuendo. Which defendants were WC members? “For the most part, all of them are.” Why didn’t they include the context about the Molotov in the grill in the complaint? “Because they were focusing on the Molotov;” Molotovs are dangerous weapons that are illegal to make and use. (Bruce objects; the Molotov in the video was not real. Noted but overruled.) The video had the Welcoming Committee’s website on it, connecting the video to them. Erik was an Unconventional Action member, organizing for Sector 5. The “points of interest” video he allegedly made had the song “5 Million Ways to Kill a CEO” in the background; the video shows capitalist institutions, and killing is a crime of violence! UA and the WC co-organized the action camp. Rob and Luce “instructed others to do things,” but all the defendants played a leadership role, such as coordinating with others. Some of the literature at the convergence space “described violent acts.” The WC rented the space and had the authority to decide which literature would be there.
He breaks the Welcoming Guide out again; there was “an incredible amount of information, literature and workshops” at the convergence space. The WC put on workshops and taught others skills. Some of the classes and workshops included ones on the sector map, de-arresting people, police techniques and tactics, the landscapes of Minneapolis and St. Paul and how to best blockade routes between them. This was an opportunity to share skills and tactics. There was not a disclaimer in the Welcoming Guide telling people not to commit criminal damage to property or bring dangerous weapons; not only that, they had a workshop on “less lethal weapons!” [Actually, a wokshop on *the cops'* less lethal weapons.] They had a sexual assault policy in the Welcoming Guide, but no disclaimer telling people not to imitate the video! Max had caltrops on 9/1/08, which are a dangerous weapon! Other things depicted in the video were also seized in the raids, including boltcutters, slingshots, and bicycle inner tubes, which can be used to launch projectiles. They also seized black bloc clothing, which is “used to hide people’s identities and blend in with crowds during major events; the black bloc is a tactic used to destroy property and take off.”
Court goes into recess, to be continued on 5/4.
