Have you read Scott’s previous post here, “DOMA Action Alert: Time to Make Boehner Sweat“?
On Novermber 15, 2010, 13 Americans participated in an act of civil disobedience.
Thirty-seven days later they stood in a room crowded with most honored heroes of the “Don’t Ask, Don’t Tell” repeal movement. The occasion was the signing ceremony for the legislation they so passionately advocated passing. The gracious invitation, extended by President Barack Obama himself, seemed to mark, for the players and for the country, a hopeful moment of mutual conciliation.
Now this same group finds themselves still being treated like common criminals by the very same administration.
Four months of negotiations with the Obama administration’s Department of Justice to broker a very simple plea agreement hit yet another wall on Friday, March 18. Thanks to psychodrew for following this story closely, some background here and here.
This is my first person account of how the “White House 13″ found themselves on the path to an expensive and wholly unnecessary criminal trial.
The key sticking point from day one of the plea negotiations has been the prosecution’s unrelenting insistence that we demonstrators must be left with a permanent adult criminal record for taking action.
Of course, we always recognized this as a distinct possibility from the start. But it isn’t actually the case for most acts of civil disobedience. This is especially true for first-time offenders, which I, and most of the demonstrators are.
As our attorney, Mark Goldstone, who has much experience in cases like ours, explained to us and in Friday’s Metro Weekly:
“Lots of times demonstrators enter pleas of ‘post and forfeit,’ which is not a criminal conviction even though the charge itself might have been a crime.” He also noted that there is the possibility of “deferred sentencing, in which case, if they are good, the charge will be dismissed.”
From the onset prosecutors inexplicably removed the “post and forfeit” option from the table, although it is most often the standard procedure for dealing with these situations, and first time offenders like us.
Many, many times our attorneys have reached out to try to find an agreeable compromise with the US Attorneys office. Assistant US Attorney Angela George in court described the negotiations as occurring almost daily since January, a fact confirmed by my counsel. Still, we have found the prosecution to be anything but compromising.
Several weeks ago the deadline passed for us to agree to a plea deal. The Justice Department never placed on the table an offer that would preserve our clean records, presented a significant sentence reduction from what we were likely to expect after a judgement at trial, or that our counsel felt was advisable for us to take.
As such, when we entered the court we were prepared to plead not guilty and ask for a trial.
Upfront our attorneys were careful to alert the court and presiding U.S. Magistrate Judge John M. Facciola, that Army Staff Sargent, discharged Arabic Linguist Ian Finkenbinder, was not able to show for the hearing due to a medical emergency that left him hospitalized the night before and unable to travel to DC. This prompted Assistant US Attorney Angela George to ask the court for a bench warrant for arrest. Our attorneys objected to this motion. The warrant request was denied, as the Judge agreed it was unnecessary. His honor agreed the word of our counsel, as a respected officers of the court, was sufficient assurance the medical emergency was authentic and the client would be produced for the court when his health permitted. This failed motion is however illustrative of a pattern of overreaching, strong-arm tactics the Justice Department has exercised with the apparent intent to intimidate since the beginning of this case. More on that later.
Judge Facciola expressed a little bewilderment we two groups should be wasting time and money heading to trial. He assessed, rightly, that after the source of the dispute—”Don’t Ask, Don’t Tell” repeal—had become essentially moot, what purpose could be served by the Justice Department dragging this case out with a long and costly trial of 13 defendants, mostly first time offenders over a relatively minor non-violent offense?
Our attorney pleaded our concerns about the effect of a permanent adult criminal record with Judge Facciola. Goldstone cited the examples of:
- Miriam Ben-Shalom, a public school teacher, who could face the loss of her job just a few years short of retirement. (It should be noted, she’s also a Wisconsin public union school teacher, and as such, is already facing significant attack on her employment and economic security.)
- DADT dischargee, and former ROTC Cadet Mara Boyd, who intends to reenlist as soon as possible and return to the service of her country. A criminal conviction could complicate or block her re-enlistment, and make her an inappropriate candidate for induction into the ranks of military officers.
There are other educators, parents and clergy among our ranks as well. The Judge seemed genuinely concerned for the disproportionate consequences such a record might have on all our lives, and he was clearly sympathetic to our pleas that the court should exercise mercy. But the US Attorney was not offering him a more merciful option he could exercise.
But from the start, we have been subjected to odd, unusual and unnecessarily severe (and expensive) treatment, like home visits by pairs of armed US Marshals to serve us personally when standard procedure is to send the court summons by registered mail.
We were also compelled on Friday to submit to a second fingerprinting and a second mugshot, though we did so already when we were arrested by Federal officers. (I don’t think our fingerprints have changed since November.)
Also, the more serious Federal statute that the US Attorney has elected to charge us with, “failure to obey a lawful order,” our attorneys contend has not been used before to discipline participants in a free speech demonstration.
The application of this Federal statute to our case seemed to strike Judge Facciola as both unusual and disproportionate to the infraction, as well. He seemed to entertain Goldstone’s argument it could be a troubling indication of an abusive measure taken to punish civil rights demonstrators. Judge Facciola himself, unprompted, offered a comparison Shuttlesworth v. Birmingham, a landmark unanimous Supreme Court decision of the Civil Rights Era. Fred Shuttlesworth was involved in the Southern Christian Leadership Conference and an ally of Dr. Martin Luther King’s. In 1963, he was arrested for conducting a civil rights march in Alabama without obtaining a proper parade permit. He was convicted under a local Birmingham statute.
The Court reversed Shuttlesworth’s conviction because the circumstances indicated that the parade permit was denied not to control traffic, but to censor ideas.
We took Judge Facciola’s spontaneous citation of Shuttlesworth as an encouraging sign that he is cognizant and respectful of how seemingly benign statutes can be applied in a capricious, even malicious manner, to squash the free speech rights of disenfranchised and oppressed minorities.
Though the Judge has no power to dictate what charges we face—the actual filing of charges is always solely the discretion of the prosecutor—he strongly suggested the prosecutor go back to her supervisor and revise the charges. He suggested “disorderly conduct” under District of Columbia local jurisdiction might more appropriately fit to the incident. This charge carries lesser fine and a maximum of 90 days in jail, as opposed to six months for the Federal charge.
It appeared we’d made some great progress. We would reconvene in the afternoon.
But four hours later, the prosecution returned from recess to declare her office did not feel a charge of “disorderly conduct” was appropriate. Their odd position seemed to be our behavior was “polite,” orderly, and insufficiently “boisterous” and, as such, didn’t warrant the application of a less serious charge.
A video of the event is below. I’ll leave it to the reader to decide if they themselves might describe our conduct as “boisterous,” as would befit the statute requirements.
So, “disorderly conduct” charges were not an option. Also still not on the table: “post and forfeit,” or a deferred sentence recommendation.
But still, a trial is not a fait accompli.
The potential deal from the morning having collapsed, our counsel still worked diligently to place yet two more options our group felt were acceptable before prosecutors. The prosecution neither accepted nor rejected our proposals. Instead, they asked for time to consider them. Counsel will reconvene on May 17, hopefully for a final resolution. In the meantime our group will continue to live with the possibility of a costly, unnecessary trial and the threat of jail time hanging over our heads.
Pending the outcome of May’s meeting, we will accept a plea, or continue on to trial.
The Judge again pointedly reiterated his hope to the prosecution they would very seriously consider the plea options our attorneys had laid before them.
But I am not optimistic. Since the start we have been dealing with a prosecution team that has appeared unreasonable and intransigent. Not even Friday’s pressure from a Judge, who was earnestly trying to lead us to an mutually agreeable common ground seemed to have any effect. The group consensus is forming we may have no choice but to go to trial.
We are in full agreement we stand strongest when we stand in solidarity. But we all had our own reasons for choosing to go to trial. On this point, I don’t speak for the group.
For myself, I have seen the office of the US Attorney repeatedly exercise what appear to be unmerciful and bullying tactics to myself and my friends and am frankly bewildered and disappointed by their behavior. We are clergy, teachers, parents, and military veterans whose only request was they be allowed to serve their country. But they seem to see us only as are hardened criminals to be dealt with severely.
I have come to the conclusion the Department of Justice’s true aim is only to extract their necessary pound of flesh from myself and my friends. And I’ve decided they are welcome to extract it after I’ve fully exercised my right to equal and due process under the law. They seemed determined to force an admission of a crime from my lips. I will do no such thing.
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