The jury instructions for the charges against the NATO 3—Brent Betterly, Jared Chase, Brian Jacob Church—were finalized in court at the end of yesterday’s proceedings and throughout the day today. Additionally, the defense argued a motion to strike portions of undercover cop Mehmet Uygun’s testimony as being improper. The judge denied this motion, which concluded arguments over the final issue before closing arguments tomorrow morning at 10am (court will be in session starting at 9:30am, so all spectators must be seated by 9:15am).
The process of creating jury instructions began before jury selection ever began in an attempt to streamline the process. Due to the many complicated legal issues involved in the case, which is both the first use of several Illinois terrorism charges and a joint trial for three defendants, this process was far from smooth or quick. By this afternoon, however, all the issues had been ruled on and the instructions that will be given to the jury had been hammered out. The jury will deliberate on each defendant’s guilt or innocence on each of the seven charges they are facing and will return their verdicts once they have reached their conclusions. The jury will start deliberating after both sides present their closing arguments tomorrow.
Only the instructions that one side or the other objected to were discussed on the record, so we do not know the exact number of jury instructions or what each one says. There were several important issues discussed on the record, however. Many of these arguments became tense and heated, particularly on Tuesday night as the hours wore on and everyone became increasingly exhausted. Court was not recessed until nearly 10pm that night, so everyone was frazzled by the end.
One of the most significant defense objections was to the way the terrorism charged were being presented in the jury instructions. The issue was whether the terrorism statute itself is a crime of intent since the statute says that someone is guilty of terrorism when they commit an illegal act that is intended to “intimidate or coerce a significant portion of the civilian population.” Michael Deutsch, one of the attorneys for Church, argued that the judge was wrong in his interpretation of the terrorism charge and was providing improper instructions to the jury. The judge said that he had made his ruling and he was right today, so the lawyers could appeal if they desired. Deutsch replied, “You’re wrong today and you’ll be wrong tomorrow.” The judge then said that if he heard any more protestations that they would be addressing them in contempt of court proceedings. Deutsch started to reply but was shouted down by the judge.
Another important issue was about whether lesser-included charges should be presented to the jury as they deliberate on the defendants’ guilt or innocence of the charges tried in court. Lesser-included charges are lower-level crimes (e.g., misdemeanors instead of felonies) that have the same elements as the higher-level crimes but are not considered to be as severe and do not have the same classification or penalties. Juries can be instructed that they can convict on these lower-level crimes if they feel there was evidence proven beyond a reasonable doubt on these offenses but not the ones charged and tried.
The prosecution argued that no lesser-included offenses should be included because the jury should only have to decide guilt based on the charges the grand jury had issued and the State’s Attorneys had decided to pursue. Inserting lesser-included charges would take power away from the grand jury and prosecutors, they argued. The defense argued that justice required that these lesser-included offenses be presented to the jury.
There were two lesser-included charges proposed by the defense. The first was the offense of “possession of an incendiary device with the intent to commit criminal damage to property” instead of “possession of an incendiary device with the intent to commit arson.” The second was “mob action” instead of “conspiracy to commit terrorism” and “material support for terrorism.” After much argument and additional research, the judge ruled that that “intent to commit criminal damage to property” offense would be the same level as the original felony charge, so that request was denied over defense objections. However, he ruled that some sections of the “mob action” offense were appropriate to replace the terrorism charges, so he allowed those over prosecution objections. The mob action charges included in the instruction are all Class C misdemeanors rather than felonies like the charged offenses. A major debate with this charge was whether the statute was still unconstitutional, as it had been found to be in 2000, but the judge ruled that it had been modified by the Legislature and should thus be considered constitutional.
The defense also argued that the state should be bound to its charge of “possession and manufacture” of incendiary devices, which they had stated in both the indictment and the Bill of Particulars providing more information about the indictment. The state had proposed an instruction about “possession or manufacture” of incendiary devices for jury deliberations. The prosecutors argued that the custom was to charge with “and” when that was in the statute, as was the case with the charges against the NATO 3, and to instruct the jury on “or” so they would know that proof beyond a reasonable doubt on any of the elements of the offense was sufficient to convict. The judge agreed with the prosecution based on precedents set in Illinois through other cases.
The state also had several instructions to which they were objecting. Significantly, they argued that the defense had been using “soft entrapment” language and arguments throughout the trial. Prosecutors claimed the defense attorneys had danced around the word “entrapment” in their opening arguments, using every word except for that to describe the undercovers’ actions and statements. Further, they argued, the defense attorneys’ questions during cross examination were intended to cause the jury to infer entrapment. Thus, the jury should be instructed that the defendants would have to admit guilt to every element of each charged offense to claim an entrapment defense, the prosecutors argued. They advanced this argument even though the defense had just rested their case without presenting any formal defense against the charges. Nevertheless, the judge agreed with the prosecution’s claims of “soft entrapment” and said that if they continued in their closing arguments as they had been thus far, he would provide the jury with the state’s instruction about entrapment.
Another major argument by the state concerned the instruction to the jury about First Amendment issues. During trial, the prosecutors had filed a motion complaining that the defense had violated the judge’s order not to talk about violations of First Amendment rights or to raise questions about why the case was being prosecuted at the state level rather than the federal level, like the vast majority of terrorism charges. At that time, the judge had sided with the state and allowed them to write a curative instruction to the jury. The state proposed their instruction and the judge modified it a bit before approving it to be given to the jury.
Additionally, some instructions were worked out in case the jury asks questions about those issues. One such issue was the definition of “Molotov cocktail,” which the prosecution argued was inherently dangerous to human life and explicitly illegal under Illinois law. The defense argued that the state’s instruction was prejudicial against the defendants. The judge ruled that the state’s instruction would be used. Another such instruction that was worked out prior to trial was the definition of “civilian.” Despite defense objections and the cases they presented to the judge, he ruled that cops are considered “civilians”; in fact, everyone is unless they are active duty members of the military or National Guard.
Defense Motion to Strike Portions of Undercover Cop Uygun’s Testimony
Tom Durkin and Joshua Herman, attorneys for Chase, filed a motion that the other defendants joined in on to request that portions of undercover cop Uygun’s testimony be stricken from the record. Some of his testimony was improper because he had interjected his own understandings of what the defendants had meant by their recorded statements, thereby adding information that was not supported by the evidence in the case (namely, the audio recordings). The prosecution objected and the judge said that some of the questions and answers had been improper, but not to such an extent that the defendants had been harmed. Thus, the judge denied the motion and said that the testimony would stand. In response, Durkin said he was requesting a mistrial, which the judge also quickly denied.