I went to court for the Cleveland 4 sentencing trial earlier this week. It was very dramatic. We need to pack the court room again on Nov 20th, 9am [note date change] when the judge will be giving his decision. Anyone who wants to participate in a car pool from Columbus, please contact me, 614 704 4699.
In lieu of a reportback, I'd like to share some letters I wrote, the first is to the judge, and the 2nd was written to Anthony Hayne, the guy who rolled, and sent back, because they're controlling his mail now. I hope someone who is allowed to mail things to Tony gets these and sends them his way. Please.
Anyway, read them after the jump.
PO BOX 1291
Columbus, OH 43201
Nov 6th, 2013
Judge David Dowd
John F. Seiberling U.S. Courthouse
Two South Main Street, Room 402
Akron, Ohio 44308-1813
Dear Judge Dowd,
I was in your courtroom yesterday and I witnessed something I didn't understand. I hope you can clarify it for me. I am not a lawyer or trained in details of legal procedures, but this event seemed exceptional and confusing. Also, from my background in political philosophy, I found the events in your courtroom not only confusing, but also very troubling.
First, allow me to recount the exchange. The date I'm referring to is Monday November 5th, the sentencing hearing for Douglas Wright, Brandon Baxter and Conner Stevens. I should say I appreciate you for taking time to hear and consider their cases. I realize, given the nature of the government's position, that a lesser judge could easily have chosen to tie the bow on the package the FBI has wrapped these young men up in. Thank you for giving the case more consideration than that.
The part that I wonder about is the curious testimony of Mr. Anthony Hayne. Please allow me to first summarize this testimony, from my memory. Mr. Hayne entered the courtroom and took the stand. He seemed to me, quite nervous. He spoke softly and leaned back, away from the microphone. The prosecutor asked him a few questions, and when he got to the third or fourth question, about talking about explosives, Mr. Hayne said "I can't do this." The prosecutor repeated the question, someone in the back began to cry, and I believe Mr. Hayne repeated himself, "I can't do this" maybe even twice. The prosecutor was insistent and asked again, and this time, Mr. Hayne answered, either "yes" or "no". I don't remember, but I do know it was a single syllable.
The prosecutor asked a few more questions, and then one of the defense lawyers, Terry Gilbert, I believe, raised an objection: "these have all be leading questions." Then you responded- and this is the part that I am confused about- you said: "given the circumstances, over-ruled".
I watched Mr. Hayne complete his testimony, all in monosyllabic responses to leading questions. After court, I found myself wondering about what had happened, and why? It is my understanding that leading a witness on direct examination is not allowed. You made an exception to this rule when you over-ruled Mr. Gilbert's objection. You said "given the circumstances", and I cannot stop myself from wondering exactly what circumstances you were referring to? The circumstance of betrayal and heartbreak? The circumstance of pressure and coercion Mr. Hayne has been put through by the FBI and the government? Or just the unfortunately far more routine circumstance of a lazy prosecution depending on informant testimony, rather than hard evidence to make their case?
At any rate, these thoughts inspired other thoughts, and I found myself thinking about power. First, the powerlessness Tony exhibited on the stand. Where, for a moment, he could not go on, and then… he went on, at the prosecution's insistence. Given the circumstances of Mr. Hayne's presence on the witness stand, it is hard to see that insistence as anything short of a threat, an incredibly formalized and legal, but also incredibly violent threat. Mr. Hayne took a deal and is facing 16 years to life. I corresponded with Mr. Hayne prior to taking that deal, and he spoke to me about appreciating the work I do, as a prisoner advocate and abolitionist. He said that when he gets out he hopes to join in similar efforts. Now, as a snitch, he has certainly forfeited that opportunity. I understand he has also lost the ability to see or hear from his newborn daughter, or her mother. The authorities have isolated him from his friends and contacts. I imagine he has lost many friendships and surely some sense of his humanity. He sure looked broken and despairing to me.
Then I thought about the power Mr. Hayne's testimony has over the fate of the defendants, and the power the CHS's words and choices had over their lives. Of course, I quickly realized that the CHS does not actually have real power himself. All that power ultimately flows from Special Agent Ryan Taylor and his bosses. I have been thinking a lot about that power, the immense imbalance of power present in court, and how it reflects and encapsulates a parallel imbalance in our wider society.
Finally, I thought about the power you hold. You could have sustained the objection and required the prosecution properly question Mr. Hayne. That decision might have resulted in Mr. Hayne refusing to testify and retaining his humanity. In a broader sense, of course, you also hold the power to decide Brandon, Doug and Connor's fate. I am not a judge, lawyer or legal expert, so I do not share your credentials or your commitment to the letter of the law. I do not understand the limitations you operate under, or the precise scope of the decision you are going to make. I do know that you are judging intentions, not guilt or innocence, but still, responsibility.
How, given the circumstances of this case- the power imbalance present in that courtroom- does someone even begin to make such a determination? You are tasked with judging the most powerless actors in the situation. You must scrutinize their actions and the decisions they made within an elaborate context created by Agent Taylor and the FBI. How can someone with almost no power in a situation be held responsible for it, rather than those who orchestrated it? How do you look past the extensive control of circumstances Agent Taylor exercised? How do you parse out the decisions or motives of Mr. Wright, Mr. Baxter or Mr. Stevens? I cannot imagine being in your position or having to answer these questions. You are not me, though. In your career you likely have extensive experience judging the decisions and actions of powerless people. You probably have a whole routine system or process you go through. Maybe not. I don't know.
What I do know is philosophy. I know the principles espoused by the American system of government. I have been taught them all my life, and I have spent no small amount of time examining and thinking critically about them. I have been taught that one of the most important of those principles is the idea of popular sovereignty. That is: power should belong to the people. I hear about this principle all that time, but the closer I look at the American political and legal system, the less I see it.
The words "popular sovereignty" sound utterly absurd to me after today's hearing. The FBI, in an overt effort to delegitimize and crush the occupy movement, are destroying five men's lives. This case comes in the context of nine months of violent police repression of the largest demonstration of popular sovereignty this country has seen for decades. Pepper spray, beatings, mass arrests, rubber bullets, flash grenades, tear gas, all these things have been deployed extensively against the American people in the past year, in response to what ought to be constitutionally protected speech and associations, in response to people power. Legal proceedings like these, or the grand juries arising in the Pacific Northwest are the final steps in that repression. The guilty pleas these young men filed were a lid on the coffin of popular sovereignty. Your sentencing will simply determine how many nails we will need to pry off before we can resurrect it.
I assume, as a judge, you are not supposed to think about these things. You are supposed to decide on a single specific legal issue. In this case: whether or not Mr. Stevens, Mr. Baxter and Mr. Wright are terrorists. I do not understand the parameters you are using to make that decision. It has something to do with intent, with- to quote your questioning of Brandon on the second day of the trial “knowing what, if anything, makes [them] tick”. I do not care to imagine myself in your shoes, but if, by whatever arcane process you use, you end up with the conclusion they are terrorists, it seems to me the content of their terrorism would have to be popular sovereignty. However foolish, misguided, coerced or entrapped they were, these men were giving power to the people. For that, I admire them. Whatever your conclusion, however long you put them away for, and whatever label you put on them, I will have their back.
I write this letter full of regrets. I feel I have already failed in my commitment to these young men. I wish I had jumped up and shouted "WHAT!?!" when I heard you say "over-ruled". I wish I had been dragged from your court room shouting words of hope, encouragement and love to Tony. I wish I had made an effort to inspire resistance and strength, to return some of what the FBI has stolen from him. Instead, I sat still. Maybe I have been too thoroughly taught to respect your courtroom, to fear the consequences such an outburst might have for the defendants. I have been too thoroughly taught to sit silent and defer to the powerful. We all have.
Until the day we unlearn these things, your servant,
This is a letter i wrote to Tony on July 28th, the day after i heard he'd rolled. It was sent back to me, cuz they transferred him to a secret place where they hide snitches, and didn't forward his mail.
I know you're getting a lot of shit from people who're too cowardly to give their real enemies (the FBI) shit. They find it easier to attack a former comrade who was broken by the enemy.
I can't condone your decision, but I don't want to engage in that same cowardice. We will make the state and FBI look like fools and monsters, to rally support and pressure so the others hold out and are offered at least as good a deal as you have been.
I want you to know that this ain't it. When my friend Bomani Shakur of the Lucasville Uprising was sentenced to death, that's what he told the judge: "this ain't it". I visited him at OSP, recently. He's spent 20 years in solitary confinement, he's nearly exhausted all his appeals and the best he can expect is life in prison. He's still saying the same thing: "this ain't it." This attitude has won him small victories that build momentum. From that hell at OSP, he continues to fight and contribute to revolutionary struggle.
I want you to know that the same is true for you. This ain't it. You can still fight. You can betray the feds, you can stop testifying, you can expose the psychological torture they used against you, you can stand up and spit in thier face. I hope to be a part of a support network that is powerful enough to give you the confidence to do what you know is right.
I hope that in the future anarchism in america is strong and present enough that the FBI is unable to entrap anyone the way they have done you and the others. If they tried, I hope the support would be adequate, that the whole of the occupy movement, rather than running away, could recognize that your situation is an attack on resistance of any kind, anywhere.
I take our failure to be that movement as a personal failure. I see every mistake, every lazy afternoon or morning, every bout of frustration and depression, every cowardly choice and every missed opportunity in my life over the last year as partially responsible for that failure, and I want to appologize.