Final Pre-Trial Conference (pt. 4)

Secret Service Testimony & Documents

The prosecution started this hearing by telling the judge that they had requested documents from the Secret Service, that documents were submitted to them on June 28th, and that the defense had acknowledged the receipt of those documents and said that they could lead to additional discovery. However, the prosecution argued, the defense had waited until three weeks before trial to issue subpoenas. The prosecutors also said that their emails show that the Secret Service did not even open a file on this issue because this was a Chicago Police Department investigation. Also, the information in these emails is not generated by the Secret Service but rehashed information from others. The prosecutors also argued that the defense’s request for documents was over-broad.

Regarding the subpoenas for the Secret Service agents, the prosecutors claimed that there was no relevance to their testimony and that permitting the subpoenas would be contrary to the judge’s rulings on the motions in limine, particularly the one about the potential arguments of outrageous government conduct, malicious prosecution, and that the case would be tried in Federal court rather than state court if it were legitimate. The prosecutors argued that these arguments would be improper if made in front of the jury. Additionally, they argued that there was no nexus between proving the truthfulness of cops’ testimony when the Secret Service did not have a file on the case. Rather, the purpose of their testimony would be to argue about why the state brought the terrorism charges.

The judge asked why it would be inappropriate for the defense to raise these arguments if it were to consider the terrorism charge versus the arson charge. While he said that if they were submitting the testimony as the reason for the prosecution that would be different, but in terms of the state’s burden of proof and provided that the foundation had been laid, he asked what would prevent the defense from making those arguments. He also asked what would prevent them from doing so if there was a legitimate purpose to raise a reasonable doubt and they had laid a proper foundation for that opinion. In response, the state said whether there should be terrorism charges or not is a legal question and that the jury cannot determine whether the state should have brought the charges or not. The judge then asked how that was different from the state putting cops on the stand to testify about what they saw and why they think the charges are appropriate. The state replied that submitting they would not be asking an expert to decide whether alleged actions met the legal requirements of the terrorism charges, only to testify about the facts.

The judge then asked the prosecutors why he should block the defense from trying to lay the foundation to raise these doubts to the jury. The state replied that the defense’s purpose in bringing these witnesses was to question the appropriateness of the prosecution’s charges and to bring up the question of why this was a state versus a federal case, both of which they believe are inappropriate for the jury to consider. Additionally, the Secret Service agents are questionable experts because they do not deal with state law. Thus, allowing this testimony would make the jury the arbiter of the law, rather than the judge. One of the prosecutors, John Blakey, added that the issue of whether the alleged actions are or are not terrorism goes to the different statutes, and only the judge is the expert on the law.

Thomas Durkin, one of Jared Chase’s lawyers, then responded to the prosecution’s arguments, saying that they had good faith reasons for the subpoenas and the state did not say anything about them in the last hearing. Additionally, only one person from the Clerk’s Office called him to limit the scope of the subpoena. Regarding the Secret Service agents, the state had said that they represented on page 4 and the bottom of page 3 that back on April 30th, in response to the motion to compel discovery, they denied that they knew if the Secret Service had information on the case. He said they were worried about this issue because of a press conference involving Cook County State’s Attorney Anita Alvarez, Police Superintendent Garry McCarthy, and Blakey. [plays part of the video] In this press conference, Alvarez indicates that they had been involved with the FBI and Secret Service.

Durkin continued by saying that the elephant in the room is why these are not federal charges. Because of the charges they brought, the state now has to prove terrorism, whereas the defense has argued over and over that they cannot imagine how they are going to prove these charges. How could four bottles with gas and a bandanna be used as a weapon of mass destruction, he asked. He also said that the state has been arguing that the defendants came into town with a bomb in their car and the police found it, so the defense could not wait to go to trial on these charges. He also pointed to another part of the press conference video [plays video where McCarthy says they had been working “hand-in-glove” with the FBI and Secret Service for months, communicating and passing along information]. Durkin said that it was mind boggling that they could say the Secret Service was not involved after this press conference. This state is about justifying the money spent on NATO, Durkin said. This was not a selective prosecution argument but it goes to the credibility of the witnesses, mostly the cops. He also pointed to some emails in the discovery, notably #7470, which is an email from the Secret Service Chicago Field Office that says that there was no danger of any plot happening on May 19, 2012, three days after the defendants were arrested. This email says the defendants discussed damage to the headquarters but did not surveil the headquarters.

The judge then asked the defense how he would enforce the subpoena even if he agreed with them. Blakey interjected that the Secret Service had asked them what was happening and he said he could not tell them what to do, but that they would be challenging the subpoena. The Secret Service can also take the subpoena to Federal court to challenge it if they like. Durkin responded that all that was news to them. Blakey then said that the defense had asked them to reach out to the Secret Service and that was what they had done. Durkin replied that he was acting in good faith and to say that the subpoena was a fishing expedition and to challenge it was not acting in good faith. The judge then said that he had no authority to enforce this subpoena.

Durkin further argued that he wants McCarthy to testify because he is included on these emails and is referenced in some of these conversations, such as in #07450 and #07457. The prosecutors then asked how that was relevant and how someone without personal knowledge of the case is able to decide if there was terrorism. The judge responded that it was not about deciding if there was terrorism but about the investigation and steps they took. He also suggested that both sides could stipulate to some of these points. Durkin then said that in email #07457, an official says he met with McCarthy about this case thirteen days before the arrest so he did not understand how they could not be documentation about this.

Michael Deutsch, one of the lawyers for Brian Jacob Church, added that the issue was not if the Secret Service could testify about the law, but that they are responsible for protecting the President and they had looked into this and did not find any threat. Since the alleged threat to Obama’s campaign headquarters had been a big part of the allegations, an important issue is whether this was a credible threat or not.

Durkin also added that they did not want to call the Secret Service agents as experts and that the prosecutors were missing the fact that the defense does not think that the Chicago Police Department was conducting the investigation and just letting the Feds know, but that they worked hand-in-glove with the Feds. Also, this fact shows the motivation for why, in the face of all this evidence, four beer bottles became a way of intimidating a significant portion of the population. He also asserted that the subpoenaed documents would show that the Feds did not want to be involved in this case at all.

In response, Blakey said that the defense had not read some of the emails since the Secret Service says they never opened a file because it was a Chicago Police Department investigation. One of the emails was from him to the Secret Service, explaining the hearsay statements regarding the undercover cops. So the issue is whether the state needs to take additional steps.

The judge then said that the prosecution was going too far in rolling things together. If the Secret Service complied with the subpoena, then so be it, and if they wanted to contest it in federal court, then so be it. Either result would not influence his interpretation of the law, as he thought that the defense has shown that there could be discoverable material but he would not try to enforce the subpoena and has no authority to do so. Additionally, if the defense could lay the foundation, then he would fashion as a sanction what should have been a stipulation, and that any sanction would be narrow in scope. He also suspected that the defense could get some information from McCarthy or other witnesses.

The prosecution then asked the judge to reconsider the language of the subpoena, as it was so overly broad that it applied to the entire United States, not just these defendants. Durkin replied that he was happy to work with them on this, as he had said before. The prosecutors said they had already asked for these documents so they did not know what else the defense was looking for. Durkin replied that they had only asked for information on the offenses they charged the defendants with, which misses the point. He believes there was an investigation into terrorism and that is what he was looking for. However, if they wanted him to limit the subpoena geographically, then he would do that. The judge said that he would also limit it to these three defendants.

In response, Durkin said that if the judge did that, then he would be cutting off a huge area of information that could make a huge difference in the case. He further argued that either the Chicago cops were incredibly good because the found the only three people in the universe who wanted to commit terrorism or the cops made it up. He wondered how they got so lucky. Additionally, a big portion of their case is that the cops set the defendants up, so it seemed to him to be relevant who else was investigated. The judge said that his ruling stands.

Subpoena for Chicago Mayor Rahm Emanuel

The prosecution argued that the subpoena for Emanuel was over-broad. for the same reason that the one for the Secret Service agents was over-broad.: it was not to demonstrate a motive to indict falsely but to bring information in front of the jury to show that the charging was improper. Durkin responded that they have documentation of Emanuel’s involvement in the NATO preparations. The judge then asked about the relevance of the summit expenses and how they would lead to relevant testimony, to which Durkin replied that they justified taking property damage charges up to terrorism charges.

The judge then asked why the Mayor would be needed to testify, to which Durkin responded that he had bragged about how wonderful he and his superintendent were, but most important was that no one was more qualified than the Mayor to know if there was a significant portion of the population that was intimidated. The judge then ruled that the subpoena for the Mayor was quashed and was not relevant. Durkin responded that this ruling was an arbitrary violation of the defendants’ due process rights because the Mayor was a big shot or too busy to testify.

Subpoena for Police Superintendent Garry McCarthy

The prosecution argued that the subpoena for McCarthy was over-broad. for the same reasons as the other two subpoenas and that they did not think that McCarthy had relevant testimony since he was not personally involved with these three defendants. The judge replied that he remembered seeing McCarthy running around like a Civil War general rallying his troops on horses. The prosecutors then reiterated that the documents show that he was involved in the NATO summit, not the investigation of these three defendants. The judge responded that in the press conference, he seemed to be intimating that he was involved in it. The prosecutors replied that he was talking about security at the summit, not about the defendants.

Durkin then argued that they had made ample showing that McCarthy was actively involved in the investigation, such as by pointing to the meeting with the Secret Service about this case. He was also out in the streets during the demonstrations and personally involved, but he would listen to the prosecutors if the city wanted to show how he had no active role.

The judge then asserted that his problem was with the way the subpoena was worded because it contained legal conclusions. He quoted from the subpoena, saying it requested “any and all books and documents regarding any effort to intimidate or coerce a significant portion of the civilian population during or before the NATO summit.” While he said this was a problem, he also said he guessed the defense could put that in there since the state had the burden of proof in the trial. Durkin said he was willing to work with the prosecutors on this but that he had used this language because of the definition of terrorism.

The judge then questioned what testimony McCarthy would add. The judge asked if he would be speaking as the record keeper of all the offices or if he maybe had a secret file in his office that the defense wanted. Durkin replied that he did not know what he could testify to but he had some ideas. For example, maybe he had asked to take this off the Feds’ hands because he wanted to, or maybe they told him to get it out of there because it was ridiculous. Deutsch then added that a big part of the state’s case will be testimony from cops, so McCarthy might be able to testify about their motivations and any pressure they were feeling from the top to make a case, such as the undercovers being under pressure to make a case so they made Molotovs and arrested the defendants.

An attorney from the Chicago Police Department then joined the hearing to argue that the defense does not have any present reason for McCarthy to testify. However, he said that if anything relevant came up during the trial, McCarthy would of course make himself available. Concerning the documents requested, since the prosecution knows those documents, he was deferring to them to sort through the documents requested in the subpoena.

The judge replied that he suspected that the cops would say that they had already complied with the subpoena, but that was not a reason to quash the subpoena. However, he said that the subpoena would only be for these three defendants. He also said that he thought he had required an affidavit on this issue, to which the prosecution said that they went through all the discovery requests, made a list of all the documents, and tendered everything to the defense. If they could not find a document, they issues a negative report about it. Durkin then said that he had already told the prosecutors that he would work with them to shape the subpoena and make every effort to accommodate McCarthy’s schedule, as well as accept another witness who could testify about these matters.

The judge then ruled that the court was modifying the subpoena to apply to these defendants and this case only. Additionally, he ordered McCarthy to reply to the state or through their counsel that they have complied with all the document requests if they had and to do so if they had not. The prosecutors then said that there had been mention of McCarthy testifying about why the case was not at the Federal level, to which the judge said that he had already made himself clear that they would not be going there, but that that was not a reason to quash the subpoena. The defense then said for the record that they object to the other subpoenas being quashed.

Other Subpoenas

The judge then moved on to other defense subpoenas. He quashed the subpoenas for Alderman Burke and Inspector Ferguson. Regarding the subpoena for Worldwide Chicago, he said that the defense had made some basis for the records, although any requests about funding, costs, and expenses would be quashed. The prosecution then said that they have a footnote in their motion and move to include Worldwide Chicago. The judge told the defense that their objection regarding costs was recorded and then asked the state to address the subpoenaed documents. The prosecutors said that the Worldwide Business would not have the subpoenaed records and if the other groups did, the subpoena should be restricted to these three defendants. The defense said they would be happy to limit the subpoenas to the Chicago area. The judge then asked about limiting it to a specific time, to which the defense replied that the defendants had arrived in the city on May 1st, 2012 and the summit was on May 19th, so they would be happy with a time period of April 15th through May 22nd. The state had no objection as long as the subpoena was restricted to these defendants.

The judge then ruled that this subpoena was limited to those dates and these defendants, but he was quashing everything regarding finances. He was also reserving his ruling on the testimony, leaving it up to the business to decide if they wanted to come in and challenge the subpoena to have it quashed.

State’s Motion for Clarification about the Co-Conspirator Statements

After a short recess, the judge addressed the state’s motion for reconsideration regarding the limiting of the co-conspirator statements to twelve statements or so. He said he had added the language about limiting the number of statements in his order because he thought the state had asked for that. He then granted the state’s motion for reconsideration, provided they more properly disclosed all the statements they intended to use. He was not going to amend the order but noted that his decision was on the record.

New Defense Motions: Motion to Reconsider the Ruling about the Foundation of the Conspiracy and to Strike Statements that Molotovs are Inherently Dangerous to Human Life

The attorneys for Chase filed two new motions today. They spelled out how they had made a request regarding evidence in May 2012 and again in November of this year. The defense said they were not asking for much but were asking for notice as the rule requires. Additionally, federal case law shows their right to this notice. There was no need for the state to respond except to give them notice of the evidence. The prosecutors then replied that their reason to respond was that they disagreed with some of the evidence listed as tendered or not.

Deutsch then added that they had been waiting for the exhibit list for weeks and that they had only received the original one, not the one the judge had ordered that shows which ones they intend to put in. They also had not received a list of the transcripts the state intended to put in. Blakey then said that they had their witness list nearly finished and were proofreading the transcripts and nearly done. They were also working on the reports. Molly Armour, one of the lawyers for Brent Betterly, said they had joined Chase’s motions and that the state now wants to add in new co-conspirator statements. They needed a list of all their statements, Armour said. The prosecutors then replied that the defense has had all the recordings and could have made their own transcripts. In response, the defense said that it was the state’s case and they need to provide the defense with this information. Deutsch added that the state had not complied with the judge’s orders and had just given them all their old lists.

Matthew Thrun, one of the prosecutors, said that they had trimmed their witness list by fifty people and would trim it by another seventy-five or so as the judge requested by Monday. Deutsch then asked when they would have an answer on the exhibits, to which the prosecutors said they would have more information by Monday. Deutsch said more information was not an answer and the judge said that they would wait until Monday.

Joshua Herman, the other lawyer for Chase, then talked about the motion to reconsider the judge’s order on December 10th, 2013, which Chase’s co-defendants had joined. Herman argued that the third prong of the conspiracy charge was about acts to further the conspiracy. In their motion, they observed that there had been no identification of what the alleged conspiracy is in this case. Rather, the charges are amorphous and ambiguous. The defense also had the legitimate and well-founded fear that the state would bombard the jury with statements that, when you hear them, are ridiculous in nature. The defense also thinks the judge made an error in considering the foundation of the conspiracy. They had also filed a motion to strike statements that Molotovs are inherently dangerous to human life, as there is no evidence that 6 ounces of gasoline in a 12 ounce bottle stopped with a bandanna would actually work, and this evidence itself has been spoiled.

In response, the prosecutors said that the defense was conflating proving the charges beyond a reasonable doubt with the prima facie case. Additionally, Molotovs being inherently dangerous is common sense. Regarding the twelve statements, they were pointing to twelve dates, not statements, but they took responsibility if they had written it unclearly. The defense said that they were not conflating the issues but that the state had not made a showing or given an explanation of what “the” conspiracy was. Further, illegal actions are not evidence of “the” conspiracy.

The judge replied that he believed his order was clear regarding the standard and that the state had put forth a proffer on each prong to suggest the defendants knew each other, traveled here together, traveled to participate in activities regarding a specific event here, that they had a plan, that they possessed some instruments of mayhem—some that were legal and some that were illegal, but all could be used to infer some plan to commit an action. In one instance, it could be said that they conspired to commit arson, but at a minimum they conspired to create Molotov cocktails and under Illinois law these are seen as inherently dangerous and illegal, with no exceptions. That showing covers at least one conspiracy count. He also found that a reasonable trier of fact may find that there was sufficient evidence for conspiracy to commit terrorism, probably for conspiracy to commit arson, and absolutely for conspiracy to create Molotovs, although this does not mean that the state would necessarily be able to prove these charges beyond a reasonable doubt. He then denied the motion to reconsider.

Jury Questionnaire

The prosecution began the discussion of the jury questionnaire by saying the two sides had worked on it together to get it down below 100 questions, as the judge preferred, and that they had submitted the combined version with the ones they could not agree on flagged.

Deutsch said that there were three things unique to this case. First, since it was a terrorism case, they needed the jurors’ views on this in different ways. Second, the allegations of wrongdoing are largely focused on the police so they need to get their views on the police. Third, anarchism. They need to know whether the jurors have fears of or misconceptions of anarchism. He told the judge that he has experience with terrorism cases and jury questionnaires, so he knows they need to get the jurors’ feelings on these things.

The judge then started going through the questionnaire [only select questions have been recorded in these notes]:

Questions #34 and #37: The prosecutors agreed to the defense’s additions to #34 but did not think that #37 was necessary. The defense replied that that one was a more specific query. The judge said they should ask about the kinds of books and magazines the jurors read and that they would merge questions #34 and #37. The defense then clarified that they would keep in the question about the jurors’ sources of news and the judge replied that this was correct.

Question #39: The prosecution objected to asking what organizations the jurors give money to. The judge said that he did not like the way money was asked about in that one but that his standard jury questionnaire asks about donations to organizations such as Amnesty International, the National Rifle Association, and the American Civil Liberties Union. He said that jurors may not actually participate in those organizations but may contribute. The defense then said that the judge’s question was like their question #52, as there are people who do not have time to participate in professional organizations but contribute money. The judge said he would allow this question.

Question #41: The judge said that both sides would have opportunities to ask follow-up questions about the jurors’ personal ideologies, so he struck this question.

After discussing his revision to question #42, the judge said that he had been watching “Chicago Tonight” last week and they covered historical figures who were good to the country and contributed but were called anarchists at the time. He thought this was interesting. The defense replied that Nelson Mandela used to be on the terrorist list.

Question #48–49: The judge noted that the defense had asked if the jurors attended any NATO rallies and asked the state if they had any objections. The state objected to question #48. The judge said they could not ask that question outright but could tell how people lean by asking other questions and that he would give them a copy of his standard question. He then struck questions #48 and #49.

Questions #50–52: The defense said the internet question was relevant because of evidence such as Facebook and because of how the defendants allegedly learned information. The prosecutors stated that they had already asked that question. The judge said they would strike #50 as it was stated and that #51 was too long as it was written and that they had already asked about internet use. Thus, instead of asking a yes/no question for question #38, they could list which services the jurors use. If the jurors only use Facebook, then they are old and behind the times. He struck #51. For #52, he said to just ask if the jurors believe that people lie on the internet or if everything on the internet is true.

Question #61: The prosecution thought this question was more of a sentencing issue, but the judge said that he asks the questions, “Have you ever visited a jail or correctional facility? Have you ever visited a courtroom?” They could add in, “If so, why?”

Question #69: The question needed to ask if the juror is a presently named party in a lawsuit in the State of Illinois as well as include a question of whether they are a party in an appellate case in the Circuit Court of Cook County because that is an absolute bar to service.

Question #71: The judge looked at the question phrased, “Have you ever applied for a job in law enforcement?” and said that he phrases his question, “Are you or anyone in your family or close circle of friends applying for a position in law enforcement?” He told the lawyers to make sure they address relatives and spouses getting a job.

After examining question #95, the judge said that it was ok but that, according to Blakey, they might have to put a different year down if the Feds took over the case. However, he said that if they took it over, he suspected that it would be to dismiss it.

The judge then covered a number of other issues with the questionnaire. He said he generally asked jurors if they ever had any formal firearm training, believed that someone who owned a firearm is more violent, and had any feeling toward any member of a racial or ethnic background that would prejudice them. He also asked them what their own racial and ethnic background is but does not allow any follow-up questions on that. He also said that he wanted the agreed-upon statement of the case at the top of the questionnaire.

Next Hearing

The next hearing is scheduled for Monday, December 23rd at 11am for his ruling on the defense motions and to begin the process on the jury instructions.