Final Pre-Trial Conference (pt. 2)

Jared Chase’s Motions in Limine

Today’s hearing started with arguments on Jared Chase’s motions in limine that were not covered in the previous hearing. Chase’s lawyers adopted paragraphs #4, 5, 6, and 10 of co-defendant Brian Jacob Church’s motion, which was covered in the previous hearing. Paragraphs #1, 2, 3, 7, 8, 9, and 11 thus remained to be argued in court. The prosecutors tried to argue that these motions were the mirror images of their motions, but Chase’s lawyers disagreed, saying that their arguments about the use of “anarchist,” “anarchism,” and political beliefs were not the only issues. The judge then ruled that the motions from Church’s filings that had been adopted would receive the same rulings for the same reasons as Church received at the previous hearing.

The Prosecution’s Motions in Limine

The judge then moved on to the state’s motions in limine. The prosecutors said they had filed two motions the previous day, which they had emailed to the defense. They also filed a supplement to their motion because they realized they had inadvertently deleted alleged co-conspirator statements made on May 8, 2012 from their motion. The judge agreed to hear their consolidated motions in limine and supplement.

Preventing Chase from Presenting Claims of Improper or Vindictive Prosecution, as well as Jury Nullification

The state then proceeded to argue their motions. On page 22, paragraphs #2, 3, and 4 were related issues. They asserted that, particularly in the case of Chase since he disavowed some of his co-defendants’ motions in limine, should not be allowed to present claims of improper or vindictive prosecution and jury nullification to the jury. Also specifically referring to Chase, they said that under Illinois law he has the right to use an outrageous government conduct pre-trial defense, but he was really trying to argue vindictive prosecution and submitting that to the jury would be improper. They argued that Chase would have to prove that he was prosecuted because of First Amendment protected activity and that he is not being prosecuted because he is a protester or member of Occupy but because he conspired. The presumption in Illinois law is that prosecutors bring charges justly, so the burden is on the defendant to prove otherwise. To do so, Chase would have to show the jury information that they have no business considering, such as what the prosecution considered when investigating the defendant’s background, other cases, and so on. Additionally, the prosecutors argued that, to the extent that the is any argument in Chase’s disavowal, that does not show vindictive prosecution. Rather, the defendant would have to show how the prosecutors were influenced to prosecute him. Therefore, the court should preclude any arguments concerning vindictive or selective prosecution from being made to the jury, as the judge should decide those matters. The prosecutors further argued that there is no evidence that the government was overly involved in creating crime or coercing the defendants into creating crime, so the defense was really trying to make an improper claim of vindictive prosecution. Further, the claim overall is actually a claim for jury nullification. Finally, the prosecutors noted that, to the extent that an outrageous government conduct defense would go to an entrapment defense, these arguments are distinct and different.

Defense attorney Thomas Durkin responded by saying that the state had stretched a paragraph designed for another purpose into a arguments about vindictive prosecution, outrageous government conduct, and jury nullification. That paragraph was not speaking to any of those arguments and the outrageous government conduct claim was a red herring. He pointed out that Chase did not have to specify what his defense will be, but the state’s evidence shows that the cops are lying and have the motive for doing so. The judge said he did not consider this to be an issue but asked if the defense was trying to preserve an outrageous government conduct claim in case it falls into an entrapment defense. Durkin responded that he did not think that claim was there but did not want to foreclose its possibility in case it came to light. For example, he said, they were still looking for evidence of collaboration between the New York Police Department and the Chicago Police Department to follow the defendants to Chicago. They did not have any evidence of that yet but that if such evidence were to be found, they would have to re-examine their position. He also stated that making these arguments to the jury would be a waste of time, as it is one for the judge to decide (although not necessarily only before the trial started).

The state countered that, based on the defense’s arguments, there was no problem and their motion should be granted. They then argued that the defense should not be allowed to comment on how this case would be a federal case rather than a state case if it were legitimate. Durkin in turn countered that the state could talk about their good-faith prosecution all they want, but this case is the first use of the Illinois terrorism statute and the defense believes that the statute is unconstitutional as applied in this case. They also believe that they will show that the charges are exaggerated and that the state’s presumption of a fair prosecution does not relieve them of the argument that the case was overcharged for a reason.

The judge said that it seemed that everyone was on the same page with where he saw this issue and that the state’s motion was granted regarding not making arguments to the jury. He also said that he expected at least a day’s break during trial to deal with the unconstitutionality challenge he expected the defense to file and that a vindictive prosecution argument could be part of that as well. Durkin then sought clarification that the judge was not precluding him from talking about some of the facts that could support these arguments and the judge confirmed that he was not. The prosecutors jumped in to say that Durkin has spoken about things that would go to a vindictive prosecution argument and that argument should not be made to the jury. The judge agreed and said that this fact would not prevent the defense from presenting evidence to the jury and then later arguing to him that this evidence supports the unconstitutionality challenge.

Precluding Brent Betterly and Brian Jacob Church from Presenting an Entrapment Defense

The state then moved on to page 25 of their motions in limine, where they argue to preclude Church and Brent Betterly from presenting an entrapment defense, claiming that the defendants’ position flies in the face of Illinois law. If the defendants admit to possessing Molotov cocktails, the prosecution argued, then they cannot say they were entrapped on some of the charges because all the charges are intertwined. Since using an entrapment defense requires the defendant to say he committed a crime, this would be confusing to the jury and improper.

Michael Deutsch of the defense responded that the state had charged the defendants will 11 crimes and each of those has different elements. So if, for example, they put an entrapment defense forward, the defendants could be arguing that they possessed incendiary devices but not that they possessed them with intent. Additionally, no case law says they have to admit all the elements of all of the crimes to use an entrapment defense. The judge then asked if the defense would be precluded from separating out an entrapment defense if they admitted to a lesser-included offense. Deutsch said he thought the lesser-included offenses would be covered but he could be wrong and that he did not think there were any possible lesser-included offenses anyway. The judge said this issue was something for everyone to think about.

Durkin then spoke up to make clear for the record that the state is essentially arguing that the defendants were stopped driving down the highway with Molotovs in the car, but the evidence shows that the cops created the Molotovs: they bought the gas, took the defendants to the gas station, and arrested them. The police made the Molotov cocktails, so the question is how much did the defendants make them and how much did the cops influence the defendants—the crux of the matter is how did the Molotovs get made and whose idea were they? He asserted that the defense thinks the charges stretch beyond the wildest imagination.

The state then complained that the defense wants to argue partial entrapment, to which the judge said that they do not have to argue entrapment to the indictment as a whole, as they have different affirmative defenses they can use for each charge. The prosecutors argued that since the defendants did not want to admit intent, they could not argue entrapment. The judge responded that they can respond to certain elements of the charges without necessarily admitting to the whole charge. The prosecution then argued that presenting a bifurcated defense would confuse the jury and that the defense had to give the jury a specific argument. In response, the judge asserted that the state was anticipating that the defense would argue entrapment for counts 10 and 11 [both are unlawful use of a weapon charges] and argue that they did not possess Molotov cocktails for counts 1 and 2 [providing material support for terrorism and conspiracy to commit terrorism, respectively]. However, all the facts for the elements of the charges they were pleading entrapment to would have to be admitted, but this does not mean that all those elements would prove the terrorism charges. For any offense where all the elements of one are not included in the other, they are not the same. Thus, the judge denied the state’s motion with the understanding that if the defense says entrapment, they are admitting to all the factual elements of that particular offense.

Durkin then asserted that the evidence will show that the Molotovs were constructed and possessed, and that no one would dispute that. However, he argued that the police went out and helped the defendants construct the Molotovs. Defense attorney Molly Armour then said that the evidence does not show that Betterly necessarily constructed the Molotovs.

Preventing the Defense from Mentioning the Discovery or Discovery Requests to the Jury

The state then moved on to page 27 of their motions in limine, where they argue that the defense should be precluded from mentioning the discovery or discovery requests. The defense interjected that they did not understand the argument, since if they have a witness on the stand who filed a report, they could clearly question the witness about that report. The judge then re-read the argument and clarified that the state was moving for legal arguments about discovery to not be made in front of the jury. The judge then granted the state’s motion subject to the rules of discovery and evidence.

Precluding Information on Mark Neiweem and Sebastian Senakiewicz

On page 20 of the state’s motions in limine, they moved to preclude information on Mark Neiweem and Sebastian Senakiewicz [two anarchists targeted by the same undercover cops who targeted the NATO 3; collectively, they were known as the NATO 5]. The state argued that these people were not co-defendants and there should not be information about them in this trial. Durkin asserted that count 2 of the indictment talked about a conspiracy between the defendants and/or co-conspirators unknown to the Grand Jury, and it is clear that there are no other known co-conspirators in this case. The judge then affirmed that the state has the ongoing duty to let the defense know about any other known co-conspirators.

The defense then argued that the conspiracy charges could include conduct by a lot more people than the three defendants. So while they had no objections in the context in which this argument was raised, it was possible that Neiweem’s and Senakiewicz’s names might come up. The state countered that there could have been more people involved in the conspiracy but they were alleging and proving that these three defendants engaged in it. The defense then pointed out that page 15 of the motion regarding co-conspirator statements lists Senakiewicz as being one of the people who was present. The judge then granted the state’s motion in terms of not interjecting stuff about Neiweem’s and Senakiewicz’s cases unless their names come up somehow and are relevant in some way. He also said that if something changes and his rulings should be reconsidered, either side should bring the issue to him in a sidebar and he would reconsider his rulings.

Motion to Allow Co-Conspirator Statements and Laying the Foundation for Conspiracy

The state then moved on to their motion to allow co-conspirator statements. The prosecutors argued that co-conspirator statements are not hearsay if they are made in the furtherance of a conspiracy. Additionally, the state has to make a prima facie showing of the conspiracy to be able to admit the co-conspirator statements, which they can do through circumstantial evidence that is independent of the co-conspirator statements. They believe they have this circumstantial evidence, as the defendants traveled together from Florida in the same car with weapons concealed in a guitar case, found housing together, lived in an apartment with the weapons, and showed the weapons to the undercover cops. They also had gas masks and a container of gasoline. Additionally, one of the defendants concealed the weapons in the car after they thought the neighborhood was “getting hot” because cops were around. One of the defendants was stopped by the cops and did not say where he was living because he was trying to hide.

The defense countered by affirming that the state has to prove an agreement to commit a crime with independent evidence but that they are unable to do so. The judge then asked the defense if they would object to the admission of the co-conspirator statements if the state was able to lay the foundation for the conspiracy, saying that he had thought the state was going to submit reports to do so but that he must have had that wrong. The state then argued that they have information that Church conducted surveillance of targets including the Chicago Police Department’s headquarters and other precincts, as well as Chase Bank. Also, the defendants constructed a shield and mortar, both of which they tested. They also all participated in the construction of the Molotovs by giving instructions, ingredients, and cautions on not getting gas on their hands and injuring themselves. Thus, they have evidence of conspiracy through these acts, all of which is independent of the statements. The state asked the judge to accept their proffer as showing the foundation for the conspiracy and to allow the introduction of the statements at trial.

In response, the defense argued that the state kept saying conspiracy but not specifying a conspiracy to commit anything in particular. While the defendants were living together and did certain things together, that does not provide independent evidence of conspiracy to commit terrorism. Durkin asserted that there is no evidence of an agreement to commit terrorism unless you want to say that anyone who possesses Molotovs is guilty of conspiracy to commit terrorism. Armour also asserted that the state not only had the burden of making an independent showing of the conspiracy, but a sufficient and substantial one. The purpose of this test is to ward against hearsay. The co-conspirator statements will let the state use someone’s statements regarding what someone else said, so the state wants to lump everyone together and get a rubber stamp for using the statements. What the state is basically saying is that since there were Molotov cocktails, all the charges follow. However, they are required to show agreement, a common plan determined by agreement to engage in certain conduct.

The judge then asked if the evidence shows that co-defendants agreed to get hot dogs, would that be a sufficient showing? Armour replied that if the agreement is to get hot dogs and one of them started a street brawl, then the others would not be liable. The state wanted to paint the defendants as all the same and as having done all the same things, but the state has admitted that this is not true of Betterly. Basically, the state is claiming that since they are alleging a conspiracy, they can lump all the defendants together. However, they actually need to be specific regarding the independent evidence. Their allegations concerning Betterly are that the defendants traveled together, allegedly in Church’s car with weapons that were hidden. So there is no evidence that Betterly knew about the weapons at all. Next, the state has argued that the defendants were squatting a safe house, but they were not at a safe house but at an apartment. Also, they were not squatting but were invited guests of the residents there. Therefore, the state is claiming that Betterly traveled to Chicago, was in a car with weapons, found a place to stay, and there were Molotovs constructed, so therefore there was a conspiracy. However, saying that there were Molotovs is not short-form for all the other charges. Thus, the state’s filing regarding Betterly is flat and allowing it would subvert and pervert conspiracy law.

The judge then asked if, even if the state could show all these things, would they come up short of laying the foundation for conspiracy to commit terrorism? Armour replied in the affirmative and also contested the allegation that Betterly agreed to any conspiracy at all. Deutsch then asserted that there is a legal question of whether any prima facie showing is sufficient, and that the state was trying to skirt over this question by citing a case without a conspiracy charge. What they have alleged does not support a conspiracy to commit either terrorism or arson. The judge then said it appeared that the defense was arguing that the state has to prove the whole conspiracy to use the co-conspirator statements to prove the conspiracy. Durkin then responded that allowing the state to introduce co-conspirator statements without the foundation of independent evidence is a due process violation. Armour also stated that the conspiracy statute requires an agreement to commit a specific offense. Deutsch joined Armour in arguing that the state had charged the defendants with conspiracy to commit terrorism, not to destroy property or commit civil disobedience. Durkin also added that if the state is able to show by a preponderance of the evidence [the legal threshold] that there was a conspiracy to commit arson but at the end of the trial there is no evidence of a conspiracy to commit terrorism, then they would be running the risk of a mistrial. Deutsch then pointed to the conversation in discovery about the shield, asking how that statement could have been made in furtherance of a conspiracy to commit arson. He said that the statement could not be used for this and that the state wanted to get it in to argue that it shows a conspiracy to commit terrorism.

The judge then asserted that he would not allow the state to lead in with the co-conspirator statements without laying the foundation. However, he withheld his ruling on this matter.

The state then argued that the defense was conflating a motion for directed verdict with whether the co-conspirator statements are admissible when these are actually separate inquiries. If the state could show a conspiracy to sell illegal hot dogs, commit arson, or whatever, then the statements are valid evidence. The state argued that its evidence shows prima facie that there was a conspiracy, that the defendants came to Chicago for a certain date and reason, and that they created Molotovs. The state admitted that they probably cannot prove these charges beyond a reasonable doubt without the statements and that they need to lay the foundation first and then bring in the statements. If the judge made an error in allowing the state to present these statements, then he could make an adverse ruling against them in the future, but they needed to be able to introduce their evidence in a logical way. Responding to Armour’s arguments about Betterly, they said that they do not look at the elements independently, as parsing out the evidence would be improper. Additionally, a defendant does not have to be part of every minute of a conspiracy to be part of it.

The judge replied that he would need to look at these arguments more before making his decision. He also said that he believes the proffer shows a conspiracy to commit arson, but at the moment he would be unprepared to allow a terrorism argument in the opening statement. He also said he would need to look more into the depths and specifics of the conspiracy that needs to be proffered. However, he said that the state has made a sufficient proffer to show a conspiracy to commit illegal conduct, but not to allow the state to argue in the opening statement that evidence will show a conspiracy to commit terrorism. Also, he said these arguments may be much ado about nothing since the statements will be admissible for proving terrorism.

The state then sought to clarify whether they would be prevented from saying they would prove terrorism, as they would say the defendants said and did X and that these acts and statements prove all the charges. The judge said he did not know whether their proffer was sufficient to show conspiracy to commit terrorism, but he would take it under advisement. The state then said they may have moved into a legal question that had not been briefed sufficiently and that a supplemental briefing may be appropriate. They then asked if the prima facie showing had to be conspiracy specific or just about a conspiracy in general. The judge said he needed to look into that issue. Durkin interjected that the issue is clear: that the state has to lay the foundation not just for “a” conspiracy but for “the” conspiracy alleged, i.e., the conspiracy to commit terrorism. He also said that they should not have to try this case as it was charged if the judge only thinks that the state has laid the foundation for a conspiracy to commit arson. The judge reiterated that he would take it under advisement, with no further briefing, and that he would probably issue his decision tomorrow.

After a short recess, court resumed with the state asserting that the co-defendant statements are not hearsay and thus should be submitted to show context. The judge said that the statements cannot be used to show a course of conduct, to which the state replied that the statements would show how the defendants reacted and that their reactions would be conduct. The judge then asked if the state had outlined what those statements were, to which they replied that they had not but that there was information on this on page 12. They said that excluding the statements of [name redacted] would not be proper, as the jury needs to hear the statements in their context and not be confused. The judge said the issue is tricky because in many instances a cop testifies to a conversation with other people that led him to the defendant and people say that is not for the truth of the matter. He said that was common practice in the courthouse but not proper and not permissible in his court. The prosecutors replied that they know the hearsay rule and that the judge would give the jury instructions that they will follow, so they will be able to cure all these concerns.

Deutsch countered that they would have to look at each statement individually because some were prejudicial. The judge then told the state to give him the statements they were anticipating, as he does not have the context for what they want to introduce. The state said that they would be submitting all the statements in transcripts. The judge affirmed that the court would follow the rules of evidence and that, if either side wanted a ruling on a specific statement and they could not agree on it, then they should bring it to him individually and he would make a ruling.

Next Hearing

The next hearing was set for Tuesday, Dec. 10Th at 2pm to talk about the jury questionnaire and instructions.