Final Pre-Trial Conference (pt. 1)

The hearing started out with the judge saying that he had received copies of each side’s trial briefs, motions in limine, and proposed jury questionnaires. These issues had been discussed in chambers before the hearing started and would be discussed on the record in court. Additionally, the trial briefs had not been filed on the record but either side could file them on the record and file separate issues as needed. Both sides agreed with the judge’s proposal that they file the briefs.

Trial Schedule

The first substantive issue talked about was the trial itself. The judge confirmed that the trial is scheduled to begin on January 6, 2014 with jury selection. He stated that the prosecution and defense both expect the trial to last about 3-4 weeks but that he was only anticipating 1 week or 1.5 weeks. After the jury of 12 jurors and 4 alternates was selected, they would have the rest of that week to get their affairs in order to be able to sit through a long trial, so opening statements would begin on that following Monday (January 13).

Jury Selection and Instructions

The jury selection process was also discussed in depth. The deadline for getting a dedicated panel of 150 prospective jurors had already passed, so they would be getting one pool of 40-60 jurors the first day and another the second day. The judge stated that prospective jurors would go through the questionnaires and each side would be able to ask follow-up questions during voir dire, so the questionnaires should not be overly long (more than 100 questions or so) and should just attempt to get at the major issues to consider when selecting jurors. The judge also said that the state had already submitted its draft questionnaire and that the defense would do so by this Thursday. As for jury selection, the judge stated that he would ask the first group of 30 prospective jurors some preliminary questions one-by-one and then each side would be able to ask follow-up questions. Each side would also have 11 peremptory challenges to strike potential jurors off the jury. If both sides moved to strike a juror, then that juror would be removed for cause and both sides would get their peremptory challenge back.

Regarding the instructions, the judge said that he goes through all the jury instructions before the opening statements, so both sides would need to anticipate every scenario that could come about throughout the trial and present variations on the jury instructions they would like to use. He does not wait until the end of the trial to hash out the jury instructions.

Defense Arguments on Joint Motions in Limine

The hearing mostly focused on the motions in limine that had been filed. The focus in today’s hearing was largely on the defense’s motions, in part due to time constraints and in part due to one of the prosecutors being out sick with the flu.

The defense started the oral arguments by arguing that the prosecution should not be able to use the term “anarchist” or “anarchism” during trial because they would only be doing so to prejudice the jury and inflame their sensibilities. [This argument and the related ones about “terrorism,” “terrorist,” and “black bloc” were referred to as Paragraph 1 of the defense’s motions in limine later on.] The defense attorneys argued that the prosecution should not be allowed to prosecute the defendants based on their political beliefs, only what they allegedly did or intended to do. Considering that some of the charges include the word “terrorism,” which could scare the jury since we’re in the age of the “War on Terrorism,” the state should be prevented from putting in evidence that would say the defendants believe in anarchism or are anarchists since that would be used to scare the jury rather than help prove the charges. Further, the defense argued, anarchism does not imply the intent to use violence, as anarchism means a thousand different things. If an expert witness on anarchism were to testify, this expert would likely say that anarchism means using violence, but that it is the belief that hierarchy should be broken down and people should live in small groups. Additionally, anarchism is distorted by the media. For these reasons, using these terms would be prejudicial and should not be allowed at trial.

Next, the defense argued that the term “black bloc” should not be used at trial. The defense argued that “black bloc” is not an organization but a tactic used in public demonstrations. Further, the defense argued that the defendants may or may not have participated in a black bloc, but this does not lend any evidence to the terrorism charges because that fact would not show that they intended to intimidate a significant portion of the population. The state has also not alleged that the defendants were arrested while participating in a black bloc, so this does not help the state prove the defendants’ intent. Similarly, whether the defendants were against NATO or involved in protests is not probative because those are Constitutionally protected First Amendment activities. The state using the terms “anarchist” and “black bloc,” as well as the defendants’ alleged involvement in demonstrations and black blocs, is part of the state trying to use their political beliefs and associations against them. Thus, using “black bloc” is more prejudicial than probative, if it is probative at all.

Next, the defense argued that the words “terrorism” and “terrorists” should not be used by the prosecutors until they have proven the charges against the defendants because the term is so highly charged. Rather, the state should tell the jury the charges against the defendants and then not use those words until their closing arguments.

The judge then jumped in to say that the prosecutors would not be likely to call the defendants terrorists. The prosecutors then asserted that they would use the word “terrorism” since some of the charges are terrorism charges. The judge attempted to clarify that the prosecutors would not call someone charged with murder a murderer and the prosecutors said that they would; when the judge asked the prosecutors if what they would call someone charged with attempted murder, they said they would say “attempted murderer. The judge then asserted that the charge facing the defendants is conspiracy to commit terrorism, not a substantive charge for an alleged act of terrorism. The defense then asserted that the state would call the defendants terrorists unless prevented from doing so, and the judge asked if doing so would backfire on them by numbing the jurors’ sensibilities. The defense acknowledged that that could be a result but that the issue was that calling them terrorists was making a legal conclusion for the jury because the state would be telling the jurors to think about the defendants as guilty of terrorism.

Prosecutors’ Responses to Defense Joint Motions in Limine

The prosecutors began their response by stating that the issue at hand was not whether the terms being argued were probative but whether the jury would follow the judge’s instructions. They argued that the defense had said in their written motion that they should not be allowed to use those terms at all but that in court they said doing so would be ok in the opening and closing arguments. Additionally, they argued, a person does not need to commit an act to be a terrorist because many charges are about creating plans. They also stated that they would not call the defendants names by using those terms but would show that the evidence proves the charges and the charges are appropriate. They also argued that the defense had raised a First Amendment challenge and that had been addressed; they wanted to talk about the defendants’ anarchist events because those show their motives. Morever, the prosecutors argued, the defendants are part of the black bloc technique and that shows their intent and is part of why they are guilty of what they did. They also argued that the cops arrested them while they were loading bombs into a car, which they wanted to do because they wanted to seize the public stage to make a statement.

At this point, the judge asked if the defendants did not want to blow something up because they are anarchists. The prosecutors responded by saying that because they are anarchists, they wanted to put on the world stage the image of a cop on fire. Thus, the prosecutors want to show the defendants’ intent for having Molotovs. The judge then asked if he would have to treat the terms “anarchism” and “anarchist” the same as he would with gang testimony and if that would have the potential to inflame the jury’s passions. The prosecutors answered in the affirmative and asked the judge to reserve his ruling until their sick colleague was able to offer additional arguments.

Defense’s Rebuttals to Prosecutors’ Responses

The defense then stepped in to assert that the defendants believing in anarchism does not mean they had the intent to use violence. Allowing the prosecution to use these terms would cause them to need a mini-trial on anarchism within the actual trial. Would they have to bring in expert witnesses on anarchism, they asked? Anarchists have a bunch of different beliefs so this is irrelevant.

The judge then asked a number of questions to challenge the defense. Offering up the example of someone who believes in the right to life, he said that belief was protected but if that person decided to blow up a clinic to further that belief, that would go to motive and intent. The defense agreed that that could be true but countered that the prosecutors were not going to offer any evidence of the defendants saying, “I’m an anarchist and therefore I want to blow something up.” Rather, they were going to call the defendants anarchists and say that that alone shows their intent. The judge then said that that scenario would be about the foundation of their allegations and about circumstantial evidence in the case, noting that there is a delicate balance between foundation and prejudice in this respect.

The defense then countered that they wanted to see what evidence the state was going to introduce to lay the foundation that the defendants are violent anarchists. The defendants were targeted by undercover cops because they were seen as members of the black bloc and anarchists. So the state would have no foundation to call them anarchists, so using that term would not have probative value and would be prejudicial. If they were allowed to say in their opening argument that the defendants are anarchists and they do not have the foundation to support that, then that would be a mistrial. How can the state prove the connection between their beliefs and their intent, the defense asked. If there is no probative evidence or only tangential evidence or if the prosecution is making jumps in conclusions for the jury, then using the terms is prejudicial.

Additionally, the defense argued that anarchism is not a cause, like the pro-life example, but a political belief. Also, since the general population views anarchists and anarchism in a negative way, they are terms loaded with pre-conceived notions. Anarchism is not synonymous with violence but the prosecution wants the jury to immediately associate the defendants with violence by calling them anarchists. This approach is reminiscent of the Red Scare, the defense argued. In addition to anarchism being a political belief that many people want to distance themselves from, the state using those terms would give the defendants the need to rebut the notion that anarchism means violence and the responsibility of clarifying for the jury what anarchism is about, which skirts on Constitutional issues.

Prosecutors’ Final Responses

The prosecutors then said that they do not know what the general public thinks about anarchism and they do not need to say that all anarchists are violent, but that these specific anarchists are and that they came to Chicago to commit these offenses.

Judge’s Ruling on Defense Joint Motions in Limine

The judge issued his ruling, stating that “terrorism” will be allowed. Regarding “black bloc,” he said that he has had plenty of time in this case to see flyers and security debriefings about the black bloc as an organization and technique to allow it to be used. He also ruled that the use of “anarchism” and “anarchist” is a foundation issue and will be allowed in the opening and closing statements, although he told the prosecutors that it would behoove them not to label the defendants in their opening and closing statements if they do not have the foundation to support the use of those terms. He also mentioned the cops’ investigations into anarchist groups and said that that term would come out in the trial. Thus, he denied this motion.

Overview of Judge’s Rulings on Brian Church’s Motions in Limine

Paragraph 1: Use of “anarchism,” “anarchist,” “terrorism,” “terrorist.”

Denied. See explanation above.

Paragraph 4: Previous Convictions.

Granted. Both sides agreed that no impeaching offenses would be used against Brian Church.

Paragraph 5: Shield & Pipe

Denied. The defense stated that the prosecution wanted to submit additional evidence that is not probative of the charges, including a makeshift shield. The state cannot show how this shield and the other evidence could be used to influence a significant portion of the population. Another piece of evidence was a pipe that the prosecution alleges was to be used as a mortar. The first problem is that the prosecution cut the pipe so it cannot be viewed in its original condition and the second problem is that a pipe is not a weapon, it is just a thing the prosecution is claiming is a weapon. These items do not have anything to do with the terrorism charges or other charges.

Later in the hearing, the judge stated that the state contends that the defendants came to Chicago to commit terrorism, which can be done through either legal or illegal implements. Thus, these items have more probative value than they are prejudicial.

Paragraph 6: Knife, Swords, Throwing Stars

Denied. The defense stated that the prosecution has talked about Brian Church bringing a bag with a knife, swords, and throwing stars to Chicago. While the reason he brought them would probably come up at trial, they conceded, all these items were purchased legally and were legal to possess. The state does not have any evidence that the knife, swords, or throwing stars would be used and they are irrelevant to the arson charges and charges of possession of an incendiary device. The state simply wants to show these items to argue that they show the defendants’ intent, which is highly prejudicial.

The judge asked if these items were found in the same trunk as the defendants were allegedly going to load the Molotov cocktails in to and the defense verified this and argued that the cops were the intellectual authors of the Molotovs and had control of them. In contrast, a bow and arrows were also found and there are recordings of discussions of what to do with them, so the defense is not challenging their admissibility.

Paragraph 7: Other Groups and Terrorists

Granted. The state agreed not to offer any of this information into evidence.

Paragraph 9: Photographs of the Defendants’ Tattoos

Granted. The state agreed not to introduce evidence of the defendants’ tattoos.

Paragraph 10: News Reports

Granted. The state agreed not to introduce news reports into evidence.

Paragraph 11: Recordings of Third Parties

Ruling reserved. The defense reminded the court that the prosecutors have said that there are no un-indicted co-conspirators in this case, but there are several recordings that have voices of people other than the defendants and undercover cops that the prosecution wants to introduce into evidence. The defense does not know how the state wants to use these recordings, but they should not be admissible.

The state countered by saying that they need to prove intent on several counts. The defendants came to Chicago at a particular time and place armed to the teeth and that is probative evidence, the prosecutors argued. The shield needs to be included because it has spikes on the front and is physical evidence of what the defendants intended to do. The three indicted co-defendants’ statements will be used against them and each other, whereas what the cops said is not evidence but is part of the context that the prosecutors are entitled to show.

The defense clarified that they were talking about statements on the recordings made by people who have not been indicted, not the undercover cops. The judge responded that he wanted the prosecutors to address the issues of completeness, not the alleged course of conduct. The defense stated that they would need to address these issues when interviewing prospective jurors, especially due to the judge’s ruling on the use of “anarchism,” and the judge agreed.

The judge stated that he was reserving his ruling on this motion because he needed more information on these statements. While he asserted that he is well aware of not allowing in hearsay, he needs to look at the individual statements.

Overview of Judge’s Rulings on Brent Betterly’s Motions in Limine

Paragraph 1: Use of “anarchism,” “anarchist,” “terrorism,” “terrorist.”

Denied. See explanation above.

Paragraph 2: Facebook Messages

Ruling reserved. The defense stated that the state wants to use Facebook messages in their case against Brent Betterly, but the bulk of the issue in this regard is ensuring the records from Facebook are in fact records of Betterly. The authentication of online data does not have much case law behind it yet. The defense plans to bring in a recordkeeper from Facebook if needed, but the state has said it will only use the Facebook messages listed in the Bill of Particulars. If this comes up at trial, it can be resolved outside the presence of the jury. Nonetheless, the issue is about who created the content. Other courts have rejected the admission of online data unless it had testimony about who created it. So the question is what memorialized the creation of this data. The defense knows that Betterly’s Facebook account was accessed from somewhere in Florida after he was arrested, so clearly someone else has access to his account.

The judge said that these arguments go to the weight of this evidence. The defense acknowledged that one aspect of this evidence is its weight and they have arguments against this evidence if it is admitted, but the other issue is that this is hearsay. For example, there’s a statement about rioting and using Molotovs that include “LOL” and other acronyms used in social media. Introducing these messages would inflame the jury’s sensibilities and are more prejudicial than probative.

The judge said he wanted to hear more about a case from Massachusetts and whether the testimony of a recordkeeper would have changed the decision. A recordkeeper cannot say who was in front of a computer when the content was created. The inferences that can be drawn from this evidence and arguments that can be made about it is about the weight of this evidence. The defense countered that the issue is one of authenticity, not relevance.

The prosecutors also asserted that they would present a foundational witness to speak to the authenticity issue. Since they are planning on using statements made by the co-defendants, there are no hearsay issues involved. The defense then said they wanted the state to identify the statements they will be using.

Paragraph 3: Prior Convictions

Granted. Both sides agreed that no impeaching offenses would be used against Brent Betterly.

Paragraph 4: [The content of this motion was unclear in the courtroom discussion.]

Granted in part, denied in part, and reserved in part.

Overview of Judge’s Rulings on Jared Chase’s Motions in Limine

All of Jared Chase’s motions were addressed in his co-defendants’ motions.

Transcripts of Audio Recordings

The last issue discussed in the hearing today was transcriptions of audio recordings. The judge said that the state is likely to present transcripts of audio recordings and that the defense would need time to review them. The prosecutors said that the substance of the transcripts was close to being done and they could have them to the defense by this Friday. They would also be submitting into evidence more than they intended to use at trial so they would have more to refer to in rebuttals as necessary. The defense accepted Friday as the deadline and asserted that they had received 52 CDs of audio recordings, many of the same conversations but with different time stamps, so they would need time to go through the transcripts. They had also had many problems with the audio formats on the CDs. The judge asserted that all the audio recordings would be pre-loaded before trial so there would be no problems with them.

Next Hearing

The arguments on the motions in limine will be on Thursday, December 5 at 2pm.