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Kangaroo Court Looming for Nuclear Weapons Critics

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by John LaForge, Nukewatch

Three pacifists that snuck into the Y-12 nuclear weapons complex last summer are preparing for their Feb. trial, and face the prospect that any mention of nuclear weapons will be forbidden.

Y-12 is the 811-acre site in Oak Ridge, Tenn. that’s been building H-bombs and contaminating workers and the environment since 1945. On July 28, Sister Megan Rice, 82, of New York City, Michael Walli, 63, of Washington, and Greg Boertje-Obed, 57, of Duluth, snipped through fences and walked up to the new Highly Enriched Uranium Materials building. They unfurled banners, painted “Woe to and Empire of Blood” etc., poured blood on the place, prayed and broke bread.

Now they face felony charges that carry a maximum of $500,000 in fines and 15 years in prison. Additionally, in an apparent attempt to scare them into pleading guilty now, federal prosecutors have mentioned bringing two heavier charges, including sabotage “during wartime,” which together carry up to 50 years.

Yet as with previous cases of symbolic damage to nuclear war systems, a Kangaroo Court is being arranged in advance. If the government gets it way, the trial judge will keep facts about nuclear weapons away from jurors and make sure that questions about the Bomb’s outlaw status are left out of jury instructions. Instructions are the jurors’ marching orders, the last thing they hear before starting deliberations.

On Nov. 2, federal prosecutors led by U.S. Attorney William Killian offered a motion “in limine,” urging U.S. Magistrate Judge C. Clifford Shirley to “preclude defendants from introducing evidence in support of certain justification defenses.” The motion asks the court to forbid all evidence — even expert testimony — about “necessity, international law, Nuremberg Principles, First Amendment protections, the alleged immorality of nuclear weapons, good motive, religious moral or political beliefs regarding nuclear weapons, and the U.S. government’s policy regarding nuclear weapons.” The “basis” for excluding evidence regarding the threatened use of our H-bombs is that it is “not relevant.”

Volunteer defense attorneys have submitted a detailed memo to the contrary, arguing that interference with and even defacing and damaging nuclear war plans is a legitimately excusable “lesser harm” that prevents an indisputably greater one. The lawyers, Bill Quigley, Chris Irwin, Francis Lloyd and Kary Love, argue that forbidding a defense of necessity violates protesters’ rights. Citing case law from 2005, 1994, 1980 and 1976, they note that “In a criminal case it is reversible error for a trial judge to refuse to present adequately a defendant’s theory of defense,” and, “where a defendant claims an affirmative defense [necessity, crime prevention, etc.], and that ‘defense finds some support in the evidence and in the law,’ the defendant is entitled to have the claimed defense discussed in the jury instructions.”

It’s easy to show that necessity defenses are relevant, the memo notes, since the “burden is not a heavy one” and is met “even when the supporting evidence is weak or of doubtful credibility.” Nevertheless, as the prosecutor’s motion points out, “Courts have precluded defendants from presenting any evidence in support of such defenses at trial, including expert testimony.” Indeed, gag orders in similar cases have been upheld by the 9th, 8th, 7th and 11th U.S. Circuit Courts of Appeal. Judges and prosecutors have in fact placed nuclear weapons and war planning beyond the reach of the law — unlike assault rifles, poison gas or other contraband — as if H-bombs were sacrosanct, unquestionable, and too precious to be addressed by mere mortals.

In this case, Magistrate Shirley is expected to grant the stifling motion. He and Mr. Killian know that if jurors learn about the effects of nuclear attacks, about the law against planning massacres, and about U.S. plans for nuclear warfare, they would likely acquit the defendants. The U.S. Attorney’s motion even confesses, “[w]e do not suggest that the deployment of nuclear armament systems does not violate international law, but merely that Congress has power to protect government property….”

If a gag order from Magistrate Shirley follows suit with earlier nuclear weapons protest cases, the accused will again be denied the right to reasonably defend themselves. With the world clamoring for nuclear abolition, it won’t be the defense that’s irrelevant then, but the court system.

— John LaForge is a co-director of Nukewatch, a nuclear watchdog group in Wisc., and edits its Quarterly.

Related reading (PDF):

US Motion to Preclude Defenses, 11/02/12 – This is the motion by the government prosecutors asking the judge to prohibit the Transform Now Plowshares from being allowed to provide any evidence or tell the jury anything about: international law; the alleged immorality of nuclear weapons; US policy regarding nuclear weapons; necessity; Nuremberg Principles; or First Amendment protections.
attachment to US Motion to Preclude: Gump decision, 11/02/12 – Attached to the Government Motion to Preclude Defenses was the USDC decision in 2011 stripping defenses from Jean Gump, Elizabeth Lentsch, Bradford Lyttle, Bill Bichsel, David Corcoran, Bonnie Urfer, Carol Gilbert, Ardeth Platte, Jackie Hudson, Paula Rosdatter, Michael Walli, Steve Beggarly and Dennis Duvall.
attachment to US Motion to Preclude: Mellon decision, 11/02/12 – Attached to the government motion to preclude defenses was the 2002 USDC decision in the case USA v Timothy Mellon, Elizabeth Lentsch, Lena Feldmann and Mary Adams.  That decision stripped those defendants of the right to put on all kinds of evidence.  The 2002 decision was made by the same US Magistrate who is making preliminary decisions in the Transform Now Plowshares case.
Transform Now Plowshares Response to US Motion to Preclude Defenses, 11/16/12 – This memo was filed Nov. 16, 2012 by the Transform Now Plowshares opposing the Government attempt to strip them of all defenses.  It explains that the government is seeking to suppress the truth about: what happens at Y-12; what nuclear weapons do; what US policy is on use of nuclear weapons; and why they did what they did.

The Transform Now Plowshares want to tell the jury the truth, the WHOLE truth and nothing but the truth.

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Greg Boertje-Obed released, awaiting Y-12 trial

Video interview with Greg, click to view.

Greg Boertje-Obed was released from Blount County Detention Center at 8:30pm on Tuesday, September 11, 2012 to await trial, currently scheduled fro February 26, 2013. Greg, along with Sr. Megan Rice and Mike Walli, formed the Transform Now Plowshares action which entered the Y12 Nuclear Weapons Complex on July 28, 2012, penetrated the high security “exclusion zone” with a pair of low tech bolt cutters, and hammered, prayed, painted “Swords into Plowshares” and poured blood on the Highly Enriched Uranium Materials Facility in Oak Ridge, TN.They were protesting ongoing nuclear weapons production at Y12 and plans for a new $7.5 billion bomb plant, the UPF, slated to begin construction this fall. Greg has been in Blount County Jail since July 28. His co-defendants, Megan and Mike, accepted release in July following their arraignment. Additional reports from court can be found on OREPA’s web site: http://www.orepa.org.

Greg’s release came as a result of his request for a detention hearing following the reset of the trial date from October to February. He had originally declined to seek release, but told the judge he was now prompted by the difficulty of trying to consult with co-defendants in preparing for trial and by family concerns.

At the detention hearing, Assistant District Attorney Melissa Kirby rehearsed her well-worn reasons why Greg should be locked up, adding that he had warned the court earlier he would not accept or comply with conditions of release. Then the judge asked her if Greg, with his lengthy record, had in any instance not shown up for court. She admitted she had no evidence of that. “He was convicted numerous times in the past, so I assume he was in court,” she said. “However, in this case he said he would not appear.” “I don’t believe he said that,” the judge said.

Greg told the judge he had a 100% record of appearance in prior cases for “anything I have been arrested for, all of which, in my opinion, were ‘good deeds.’”

The judge subjected Greg to a lengthy interrogation—an apparent payback for Greg’s earlier refusal to accept release unless the judge declared nuclear weapons to be a war crime. In the end, after Greg attempted to explain his living situation at the Catholic Worker in Duluth (“Is it a part of the Catholic Church?” “No.” Is it affiliated with any church?” “No, but many churches contribute to our work.” “How did it get the name, then?” “In 1933, the name Catholic Worker was chosen by the founders.” “Huh.”) The judge then asked Greg what he did in Duluth and Greg said he found work painting houses, landscaping, and volunteering hospitality to homeless and others in need.

Finally indicating that he might accede to Greg’s request, the judge asked about what he would do if he were released. “Do you have a place to stay locally until you can get a bus to Duluth?” Erik Johnson rose from the audience. “My wife Libby and I would be honored to provide hospitality to Greg.”

The judge took a recess. When he returned, he walked the court through all the guidance provided to judges in making detention determinations. “His record of appearance is good,” said the judge, “by his own word, one hundred percent.” Responding to the prosecution’s assertion that Greg posed a danger to the community, the judge said, “He poses little danger. In fact, it may be that some people in Duluth will benefit if he returns to his normal activities.” Finally, the judge said, “Taking in the totality of factors, Mr. Obed appears to be an appropriate case to release.”

Then the judge offered an aside, “In my experience in these kinds of cases, and I’ve had several (actually two), in the cases of these Y12 protesters, and I think we may have some in the audience, I see Sister Lentsch there…in my experience these protesters actually want to attend trial. Candidly, I don’t think I could keep them from it. Part of the express purpose of their action is to publicize the production of nuclear weapons, and they view their arrest and trial as part of the publicity. So right or wrong, he’s likely to appear.”

Turning to Greg, the judge said, “Mr. Obed, I think you’re a man of your word. Before, you told me you would not agree to conditions or agree not to break any laws if you were released, and I think you meant it. Now you say you will, and I think you mean it. If you do, you will remain out and will be able to do good while you are out.”

With that, the judge declared that Greg would be released that evening, and five hours later he walked out of Blount County Jail. He will leave for Duluth on the Megabus at 11:30am, Wednesday, September 12. His departure coincides with the opening of Congressional hearings in Washington, DC, on the Transform Now Plowshares security breach at the Y12 Nuclear Weapons Complex.

Trial date reset for Feb 26; Sister Megan injured wrists

Court Update from Ralph Hutchison:

Judge Shirley arrived in court a few minutes late for the Transform Now Plowshares hearing on Friday, September 7, but it gave us time to visit a bit with Greg Boertje-Obed when he arrived, in stripes and shackles, from Blount County Detention Center. Greg looked and sounded healthy, inquired about his co-defendants, and then settled into a conversation with his “elbow counsel.”

When the judge arrived, he declared that he would hear motions for a continuance in the case, originally scheduled for trial on October 9.

By the time it was over, he had made several rulings and established a new calendar. The trial is now scheduled for February 26, 2013, though it is not entirely clear that date will hold.

The motions were dispensed with in a straightforward hearing. The government did not object to the granting of a continuance, though they did dispute the request from the defendants that the case be designated “complex.” In the end, the judge said he would not designate the case “complex,” but he would also not agree it was not—the defense could come back and argue another day if necessary.

The prosecution told the court it had provided initial discovery and would be releasing the second (and likely final) batch of discovery materials today or Monday. The defendants suggested it was quite possible they would seek additional materials in discovery which might lead to hearings and even litigation. The judge urged them to see what was forthcoming and attempt to resolve any outstanding issues informally with the government and the defendants agreed.

As the 50 minute hearing drew to a close, the judge set new dates:

  • Motions deadline: October 9
  • Response to motions: October 30
  • Motions hearing:  November 20, 9:30am
  • Plea cut-off: January 25
  • Trial:    February 26

Note: Many may have already heard that Sister Megan Rice fell and suffered two broken wrists late last week. She is recovering; new casts have been placed on her wrists that enable her to use her fingers. Megan is seeking permission to relocate to Rosemont, PA where her community can better provide for her rehabilitation. The judge this morning indicated the decision rests with the probation office. If and when Megan moves, we will try to post updated contact info on this site and on the OREPA web site: www.orepa.org.

Sr. Megan Rice interview upon release, Knoxville News Sentinel

Sister Megan Rice was recorded by videographer Adam Brimer for the News Sentinel shortly after her release.  Below is a rough transcription of the interview she gave.

Your assistance is much appreciated.  You have the mission of spreading the truth.  The truth will heal us and heal our planet, heal our diseases, which result from the disharmony of our planet caused by the worst weapons in the history of mankind, which should not exist.  For this we give our lives — for the truth about the terrible existence of these weapons.

Which has only escalated in the last seventy years.  I was aware of it before it was even made, because I was 82, when I was nine years old I was aware that a huge secret thing happening three minutes from where I lived in Manhattan.  The man next door was a physicist and a mathematician, his name was Dr. [Seeley Katt?].  Next door, as near as that door is, to our apartment.  We knew he was doing something secret in his work.  He couldn’t even tell his wife what he was doing, nor his daughter.  To me, that the first message that here must be something very evil happening, because how could a husband keep something secret from his wife or children, or vice versa.  This secrecy has predominated this industry. This is why the whole country and whole world has not stopped it, it’s gone on for seventy years.

We have the power, and the love, and the strength and the courage to end it and transform the whole project, for which has been expended more than 7.2 trillion dollars.  Which has gone into that which is only to be transformed and regretted.

Reconciliation is available.  Relying on all people of good will, creation, god’s life, we are all sacred and we will together respond and keep our planet sacred, alive, whole and healthy by transforming this into sustainable alternatives — which exist. To create better jobs! a cleaner environment! and a future for the seventh generation.

When asked if it was easier to get onto the property than she thought it would be…

Far easier! We were led, miraculously. (pause) But it was difficult.  But we had to — we were doing it because we had to reveal the truth of the criminality which is there, that’s our obligation.

How’s it feel to be free again today?

More empowered to continue with the great people of humanity and all creatures in transforming this into life-sustaining and enhancing alternatives.

The video ends with Mike exclaiming from the midst of a group hug:

Nuclear weapons will be eradicated as antichrist scourge from the earth soon! Isaiah will be vindicated, weapons will be destroyed, warmaking will be abolished!

Amen!

Preliminary Hearing — NOT

From: Ralph Hutchison

A Day in Court • Transform Now Plowshares Trial Set

* * *

Greg, Megan and Mike all appeared to be in good health and spirits as they came into Magistrate Judge G. Clifford Shirley’s courtroom in Knoxville, Tennessee, for what was supposed to be a preliminary hearing. Before the judge arrived, they spoke with their counsel, and we held up a copy of the newspaper’s bold headline: Y12 halts nuke operations. Greg saw it and smiled broadly; the lawyers for the others indicated they had made sure their clients knew.

When Judge Shirley came in, he informed the court that the government had chosen a different route than the preliminary hearing and was presenting a bill of information with the same charge as before—misdemeanor trespass. That meant we were starting over, sort of, and the judge went through the formalities of re-appointing attorneys, and we had a second initial appearance. It does appear Judge Shirley will be on the bench for the remainder of the proceedings.

After reviewing the information, the judge asked the defendants to enter pleas. Mike Walli spoke clearly, “Not guilty.” Megan Rice did the same, emphasizing the not. When asked for his plea, Greg said, “I plead justified because the building of nuclear weapons is a war crime.” The judge asked him to plead guilty or not guilty, and Greg responded, “I plead for the downtrodden around the world who suffer the consequences of our nuclear weapons.” The judge asked a third time for a formal plea and Greg said, “I plead for the children who need someone to intervene for them.” The judge said, “Fine, I will enter a plea of not guilty.” Continue reading

Letter to the Knox News Editor by TNP supporter

Letter to the Knox News Editor by TNP supporter Continue reading

Arraignment proceedings: a second account

Knoxville Federal Courthouse, photo by Frank Kehren

Michael Walli, Megan Rice and Greg Boertje-Obed made their initial appearance before federal magistrate Bruce Guyton in Knoxville, Tennessee at 11:15am today—Monday, July 30, 2012. The proceedings were nearly over before Greg required the judge to read the charges against them—the trio were charged with criminal trespass, a misdemeanor, for their Transform Now Plowshares action on Saturday, July 28 at the Y12 Nuclear Weapons Complex in Oak Ridge, Tennessee.

In court, the defendants were calm and composed. They spoke clearly, answering the judge’s questions directly. It was a pro forma hearing until the judge asked them each if they had a chance to review the complaint against them.

“Yes,” answered Mike Walli, the first to be questioned. Do you have any questions, the judge asked. “I note the charge listed relates only to what I have done,” Mike said, “and does not include the illegal nuclear weapons production taking place at Y12.” Continue reading

Arraignment of Transform Now Plowshares

Knoxville Federal Courthouse, photo by Frank Kehren

Arraignment proceedings took place this morning in Knoxville Federal Court for plowshares activists Michael Walli, Megan Rice, and Greg Boertje-Obed. In a concerted effort all three declared that charges facing the Y-12 were not addressed.

“Blessed are the peacemakers!” said Erik Johnson of Oak Ridge Environmental Peace Alliance (OREPA), audibly, as they entered the courtroom. After more than 48 hours detention not one appeared shaken.

They currently face one charge of federal trespass which carries a potential sentence of not more than one year imprisonment and not more than one year of supervised release as well as a maximum fine of $100,000. Preliminary information had indicated that a second felony charge of vandalism would be brought. Additional charges are possible as the legal process unfolds. Continue reading

Support Transform Now Plowshares

Contributions for jail support for the Transform Now Plowshares activists are welcome and needed! You can mail checks to:

Catholic Worker
PO Box 29179
Washington DC 20017

please mark your check for "Transform Now Plowshares" in the memo line.

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