NATO 5 CONSTITUTIONALITY CHALLENGE ORAL ARGUMENTS
March 19, 2013
There was a preliminary issue with regard to the fact that the state filed a sur-reply [a reply to the defense’s reply to the state’s response to the defense’s unconstitutionality challenge] without having leave from the court to do so. The judge stated that he had not read the sur-reply because he did not give leave to file it. He then stated he would read it but gave the defense until Friday, March 22 to file a sur-reply to the sur-reply, because the defense is permitted the “last word” on their own motion.
Prior to oral arguments, Defense Attorney Durkin asks to go on the record and states that he objects to the excessive amount of sheriffs in the courtroom as security, and asks the court if 7 sheriffs in bulletproof vests is really necessary? The judge states that the sheriff’s department decides questions of security, and that for a hearing, he was not going to infringe on their judgment. Durkin persisted and asked to be heard, and the judge continued to state, “You’ve been heard.” The last assertion by the judge was heated.
Michael Deutsch made oral arguments for all 3 defendants in a motion to dismiss count 1, 2, 3, and 6, the terrorism charges. He began by asserting that this motion does not only concern the defendants, but is important to everyone in Illinois, and beyond. He set the framework that the statutes allow for the prosecution of conduct well beyond the scope of terrorism, that the terms in the statutes are vague and allow for arbitrary and discriminatory enforcement at the predilection of the prosecution, and potentially criminalizes innocent people. He stresses that no actions were taken by the defendants in this case (that this is an alleged “attempt case”).
Deutsch then set the framework for the two parts of the motion, the facial challenge and the as-applied challenge. The facial challenge asserts the statutes are unconstitutional on their face. The as-applied challenge asserts the statutes are unconstitutional as applied to the defendants in this particular case. He asserted that the constitutionality challenge is proper because the statutes effect First Amendment protected activity. He briefly mentioned another ground by which to challenge the statutes, as established by the Illinois Supreme court, which is that the statutes have no core or substance. He did not go further with this argument though.
Deutsch continues to assert that the statutes allow for the criminalization of innocent people, that they do not require a violation of state or federal law, and the definition of terrorism or terrorist acts do not include force or violence. He stated that after 9/11, 30 states passed similar terrorism statutes, and almost all of them require the action to be a violation of state or federal law, and many of them require force and/or violence.
Judge Thaddeus Wilson asked Deutsch, “Couldn’t it be argued that the statutes passed by other states are the ones that are far too broad?” Deutsch referenced the language in the statute, which defines terrorism as “a terrorist act committed with the intent to intimidate or coerce a substantial portion of the civilian population.” Within the statute, terrorist act is defined as any one of 9 enumerated actions, the first being an action that creates a “risk of death or great bodily harm.” Deutsch went on to argue in relationship to this particular qualifier for a terrorist act, that acts of self defense could be construed as terrorism under the current statute because the act does not specify that the “terrorist act” be done without lawful authority or lawful justification. He cited a case in which a doctor (Dr. Sweet) had his house surrounded by 200+ town members who were threatening him. He shot a gun from his home and killed one of them. Deutsch argues that with the vagueness and power of arbitrary application given to the state under the Illinois terrorism statutes, Dr. Sweet could be charged.
Judge Wilson then asked, “When would one have lawful authority or justification to throw Molotov cocktails?” Deutsch conceded that there may not be lawful authority for this, but redirected to the facial challenge, saying that the question in a facial challenge is whether innocent activity could be criminalized. Deutsch then turned to another enumerated act that would qualify as a “terrorist act” under the statute—to disable or destroy a government computer system—and noted that emails sent in mass actions to gain the attention of legislators that resulted in the computer system being damaged or disabled could be considered terrorism under this definition. Deutsch asked, “How can you charge someone with terrorism without an act of force, violence, or a violation of state or federal law?”
Judge Wilson asked Deutsch if since the enactment of the Illinois state terrorism statutes on January 1, 2002, have there been any charges of terrorism against protesters? Deutsch stated that to his knowledge, there has been no application of these statutes in Illinois. He did mention the application of another part of the terrorism statute, making a false terrorist threat, which was applied in Southern Illinois resulting in a conviction, which was recently overturned. Judge Wilson asserted that other protesters have been arrested and prosecuted under normal criminal laws other than the terrorism statutes.
Deutsch then argued that the application of these statutes to criminal damage to property or other mayhem was not the intention of the legislators who wrote and passed them. The legislators intended to deal with international terrorism on a large scale. Deutsch asserted that the alleged actions are not rationally related to the crime of terrorism, that “coercion” and “intimidation” are vague terms and that “significant portion of the civilian population” is simultaneously vague. He also argued there is no culpable mental state [intent] clearly specified in the law.
Judge Wilson stated that some would say the worst type of abuse is psychological or verbal. Deutsch stated that now he’s getting into free speech issues and asked if yelling at the police is criminal. He then asked if the police are civilians, because most of the charges coming out of NATO were for actions against police.
Deutsch reminded the court that at the time the statutes were passed into law, State Representative Fritchey was concerned they would be used to prosecute vandalism and property destruction. He again asserted that the statutes are too broad and too vague and do not require violent or forceful actions, or that a state or federal law was violated. He argued that the statutes do not make room for a necessity or justification defense. He also argued that the statute has the potential to criminalize innocent people, self-defense, action taken with no criminal intent, and politically motivated vandalism. On its face, this statute is vague and criminalizes innocent conduct and conduct that is not related to terrorism. Deutsch indicated to the judge that if he were to grant the facial challenge, the as-applied is basically a mute point.
The state attorney was required to file a Bill of Particulars, detailing the alleged conduct that led to the charges, so that the defense might prepare. The bill of particulars was extremely vague, and when the defense attorneys asked the state attorney to answer questions as to the allegations, they refused to answer any of them. At the last hearing, the judge cited the problems with the vague Bill of Particulars and strongly suggested the State Attorney amend the Bill to encompass the alleged conduct. An amended version was filed that was still very vague. Deutsch addressed the court about this specifically, calling the Bill of Particulars filed by the State Attorney an affront. The judge affirmed that this would be addressed later in the hearing.
Deutsch remarked that he is addressing the as-applied aspect to the motion when he asserts again that no actions were taken in this case, and no one was intimidated or coerced in this case, but that this is an alleged “attempt case” in which the evidence the state is expected to produce will consist of statements made by the defendants. Given that this will be the evidence, it is going to be particularly hard in this case to determine if a “significant portion of the population” was coerced or intimidated. He argued that the statutes allowed the prosecutor to arbitrarily prosecute for politically motivated reasons, make examples of those they target, disappear them for 3 days, and then issue a press release and hold a sensationalized press conference on the eve of the NATO Summit protests claiming “we’ve arrested the terrorists” and setting bond at a fantastical $5 million for the 3 defendants. Deutsch asserted that the state attorney’s motives were beyond the scope of prosecutorial discretion, as they seized on the vagueness that exists in these statutes to serve improper motives.
A case is discussed, in which a bookstore was fined because 30% of its books were adult books and this was found to be a “substantial” part of its inventory, putting the bookstore in violation of a zoning ordinance. The court in that case held that the term “substantial” was not vague. Deutsch argued that the number of the books in the bookstore is finite, whereas “significant portion of the civilian population” is extremely vague, and could refer to a particular neighborhood, all those within city limits, a county, etc.
Deutsch then argued that there is no working definition of “a significant portion of the civilian population” and that the statutes do not put defendants on notice that what they are doing is terrorism. Judge Wilson stated that you can’t give a definition of “beyond a reasonable doubt” but that is up to a jury to decide. Deutsch said that the jury will look to the court for how to interpret the law. You cannot allow the jury free reign to determine the meaning of the law. The judge said that “substantial damage” is in fact defined by law though. Deutsch said yes, but “significant” is a different word. He also said that juries have dealt with the “reasonable doubt” concept for a long time. “Significant” is not defined and is too vague a concept to rest a terrorism statute on. The court asked whether it is bound by the bookstore case, and Deutsch said no because “significant” is a different word, the bookstore inventory was finite, and a terrorism case is a completely different context. The judge said we do know how many people are in Chicago. Deutsch reminded the judge that if these charges are dismissed, the defendants are still facing 7 other serious charges. The judge asked if those are lesser included offenses and Deutsch said no, they are entirely different. The judge asked whether, with regard to the as-applied challenge, the conduct portion is not at issue, the only issue is with regard to “significant portion.” Deutsch said the intent is at issue—both the vagueness of “intimidate or coerce” and “significant portion.”
THE STATE ATTORNEY’S ORAL ARGUMENTS
The state attorney started by saying that the defense attorney’s assertion that these charges were politically motivated is completely inappropriate and improper for a constitutional hearing. She also argued that the case does not implicate the First Amendment because the defendants’ conduct is in no way protected by the First Amendment. The court said that that argument would only apply to the as-applied challenge; the facial challenge asks whether the First Amendment is implicated by the statute itself. The state replied that you can only make a facial challenge if a statute is intended to reach the First Amendment, which this statute is not.
The court gave the hypothetical of “calling your senators” and this causing a computer system to crash and asked, “Is this terrorism?” The state said that it would depend on the intent of the callers. If the intent of the callers was merely to tell their government their opinion, it would not be terrorism.
The judge gave the hypothetical of throwing a Molotov cocktail against a campaign office building and asked whether this would intimidate a significant portion of the population. The state said that, for any action, you have to look at the intent. The state continued that if you do something “in the middle of a NATO summit…when the eyes of the world are on you” than that’s significant.
The state said that the statute clearly defines a mental state and provides 9 categories of things that are “terrorist acts,” including doing something that risks great bodily harm or death, and said that you are not going to accomplish these things by accident, these are all things that are not collateral to lawful conduct.
Judge Wilson asked the prosecutor if people break windows, riot, and loot after a Bulls game win, is that terrorism. The state said no, because there would be no intent to intimidate or coerce a significant portion of the population.
The state then began to say that the defense is arguing that the legislature did not have good intent in passing this law, and the judge interrupted and said that the defense is not arguing that, just that it is written too vaguely. The state attorney then argued that the Illinois terrorism statutes are more specific than other state terrorism statutes, with 9 categories that qualify what a terrorist act is.
The prosecutor argued that knowledge and intent are specified, that when the legislature passed the statutes following 9/11, their intention was to also preemptively prevent terrorism, interrupt it, and prevent harm. She asserted that international terrorism is not the only kind of terrorism to worry about and that domestic terrorism is also a serious problem. She claimed that the Chicago Police Department was able to stop “these acts” before they came to fruition and “did a wonderful job.” Therefore, “nothing happened” is not a good response.
The judge asked why the feds are not prosecuting, and said that something must be wrong with the case. The prosecution said that the feds are not prosecuting because CPD did a good job, interrupted the activity in progress, and didn’t allow it to happen.
Judge Wilson asked her, what is the culpable mental state [intent]? She answered that it is as it is defined in the statute, to intimidate or coerce. She also referred to the case of Dr. Sweet, with 200+ people surrounding the house. She asserted that it is up to a jury to decide knowledge and intent, whether someone had the intent to protect themselves or to coerce and intimidate.
She then moved on to the as-applied challenge. She asserted that the defendants’ alleged conduct falls under the parameters of terrorism. She also asserted that they made 4 Molotov cocktails, purchased gasoline to make them, and commented to an “undercover” that “the city of Chicago will never be the same.” She further asserted that the defendants commented about seeing a police officer on fire in downtown Chicago. She stated that this clearly shows intent to intimidate or coerce.
Judge Wilson asked her if throwing a Molotov per se has an element of force or violence? The state attorney answered yes. The judge asked if a man throws a Molotov at his neighbor’s house, is it terrorism? He asked, what if you live in a cul-de-sac of 5 houses and you threw one at your neighbor’s house? The state said it would depend on your intent. The court asked, wouldn’t you get up and argue that the defendant [in that hypothetical case] knew or should have known that his behavior would intimidate or coerce…? The state reiterated that it depends on the intent, but then stated that when you have someone throwing something into a crowd of people when “international dignitaries are in town…and the whole world is watching” then you definitely have intent to intimidate or coerce a significant portion of the population.
The state then said that there is no rule that every law has to specify “without lawful authority.” The legislature went out of their way to specify the types of conduct that are prohibited. Not every statute needs to have these “magic words” that the defense is asking for. And with regard to “significant portion,” the state’s attorneys continued, you cannot pull one word out of the statute, but the statute has to be considered as a whole.
Judge Wilson asked her if legislators had used the words “big,” “large,” or “small,” rather than “substantial,” would that be constitutional? The state referred to a case involving narcotics and said that the court in that case found that a “small quantity” was unconstitutionally vague.
The state said that the defendants should have known that they could not do what they were doing, and that just because a statute allows for prosecutorial discretion does not mean that it is vague. Vagueness contemplates a situation where there is complete ambiguity such that the police and prosecution can charge whoever they want. That is not the case here. This statute has been on the books for 10 years and has not been issued. This is the first time it’s been charged. The judge asked whether other defendants picked up at the same time were charged under regular criminal statutes, and the state said yes, they were all charged appropriately for the acts committed.
DEFENSE ATTORNEY’S RESPONSE
Deutsch asserted that other criminal statutes like murder, rape, and bodily harm all include the language “without lawful justification” and “without lawful authority.” Yet the Illinois terrorism statutes do not include this language. He argued that Dr. Sweet was threatened by 200 people outside his home, shot a person in response, and with that shot in all likelihood intended to coerce and intimidate the town surrounding his home and threatening him to get away.
The judge asked why this is not a question for the fact finder. Deutsch said that when you have undefined terms in the statute, that these are not proper questions for the jury. Deutsch also said that with the bookstore, you know how many books were in the store, but in this case, you do not. The state is saying that just because it happened during NATO, it is intended to intimidate or coerce?
Deutsch also said that they raised the issue of the state’s motives because it is the very problem with a vague statute—that they can be used for improper motives. Deutsch argued that vague statutes give unnecessary power to the state to arbitrarily apply them, and just because they have not used them in 10 years is irrelevant because we have a new state attorney, Anita Alvarez. Deutsch concluded that terrorism charges also prejudice all the other felony charges, and stated, “Let’s have a trial on criminal charges without vague or unconstitutional statutes.”
Judge Wilson announced that he would likely have a ruling on the constitutionality motion on Wednesday, March 27 at 2pm in Room 303. At this point, the oral arguments had concluded, and the judge moved on to handle other business.
BILL OF PARTICULARS
As stated above, the Bill of Particulars submitted by the state attorney that is to outline the details of the alleged conduct that led to the defendants being charged was extremely vague and the judge strongly admonished the state attorney to amend it at the last hearing. The amended version was still blatantly vague, with a half page for the alleged conduct for 11 charges against each defendant. The judge made very strong statements to the state attorney that if they insisted on going with this vague of a Bill of Particulars and attempted to admit evidence of conduct that was not listed in the Bill of Particulars, he would not allow it. Deutsch and Sarah Gelsomino both asserted that the state attorney had failed to answer specific questions in regards to the Bill of Particulars and that the state attorney had basically sat on it for 2 weeks. The judge indicated that the state attorney had submitted a long list of alleged conduct in the bond proffer, demanding a high bond, yet the Bill of Particulars is unacceptably vague. He then offered the state another opportunity to amend it and file it next week.
Durkin then stated that the conspiracy dates were changed in the Bill of Particulars. The original dates in the indictment were October 1, 2011 through May 2012 but the state is now only focusing on a subset of dates between April 2012 and May 2012. Durkin stated that this change is significant because the original conspiracy start date (October 1, 2011) was just two weeks after the start of the Occupy movement launched on September 17, 2011 with the occupation of Zuccotti Park. In the first week of October, other occupations were launching all over the country.
Durkin again asked to go on the record and stated that he objected to the number of sheriffs surrounding the defendants in the courtroom as a clear indication of the sensationalized nature of these terrorism charges and in direct relationship and as a clear display in support of the motion heard today. The judge allowed his statement and responded that, for hearings, he will not make stipulations on the sheriff’s discretion of how to handle security in the courtroom, although he does not allow hand shackles, but that at the time of trial, when numerous sheriffs might prejudice a jury, then he will take that under consideration.
The hearing was then ended.