NATO 3 Trial, Day 12

The closing arguments in the NATO 3 trial concluded today and the jury began deliberations to determine whether each of them will be convicted or acquitted on each of the seven charges they are facing. The jury was released for the evening at about 11pm and is scheduled to return at 9am tomorrow to continue deliberations. They must keep deliberating until they reach a verdict.

Brent, Jared, and Brian looked focused and determined in court today, although they must have been stressed and exhausted beyond all belief. We will keep you updated on how they are doing as we hear more from them. Below are our in-depth notes on the closing arguments.

At this point, we have no idea how long deliberations will last or what the verdict is likely to be. Thus, we have no idea whether to brace ourselves for long-term prisoner support or to start organizing our long-awaited victory party! While we wait, please send the NATO 3 a note to let them know that they are not alone in this ordeal!

State’s Closing Arguments

The prosecutor began the state’s closing argument with the quote repeatedly attributed to Church that the undercovers insist he said even though it was not recorded: “After NATO, the city will never be the same.” He also claimed, “by attacking the police, they were attacking all of us.” This claim was supported by a slideshow the prosecution had created to illustrate their narrative of the case. According to this narrative, Betterly knew of Church’s plan to attack police precincts when the undercovers first met him in May 2012. [No evidence or testimony was presented during trial that Betterly ever knew about the alleged plan to attack police precincts. -ed.] In contrast, another protester heard on some of the audio recordings was not included in Church’s plan for attacking the precincts because he was a real protester, whereas the NATO 3 wanted to create and use Molotovs. To that end, Chase and Church tested the undercovers in a meeting on May 6, 2012. The defendants decided to accelerate their plans after the undercovers passed this test.

The prosecutor then showed the jury the picture of handwritten instructions for making a pipe bomb that had allegedly been recovered during the house raid. Use your common sense because the defendants clearly wanted to attack the police, he told the jurors. [At trial, the handwriting samples the defendants were compelled to give proved that none of them had written the instructions. The state could also not prove that any of them had read the instructions. -ed.] The defendants also wanted to attack Obama’s campaign headquarters because he was not doing anything about violent police officers, the prosecutor claimed.  Further, the defendants had a police scanner because they considered themselves to be at war with the police and thus wanted to hear what they were saying. Additionally, the GPS tracking device placed on Church’s car shows that the defendants were casing targets in downtown Chicago. [At trial, the GPS expert admitted the device’s data did not show who was in the car or why the car was moving. He also asserted that he did not believe the defendants were looking for free parking downtown near the Occupy Chicago encampment, which could explain the car’s movements that day. -ed.]

To further prove the defendant’s guilt, the prosecutor claimed they were constantly talking about bombs because they wanted to get on the front page of the newspaper. He also claimed that Church had not gone to the gas station with Chase to purchase gasoline for the Molotovs because he had been there the day before and the manager would not sell him gas since he was trying to fill up a milk jug. [At trial, the former gas station manager admitted that he had never told anyone about Church trying to buy gas the day before they were arrested until he was preparing for trial—20 months from the date of his first interview with the police and prosecutor. He also admitted that he lies in online forums in order to get attention. -ed.]

The prosecutor then walked the jury through the elements of the crimes the defendants are charged with to show them how they are all guilty of all charges. The words of one of the defendants can be used against the others because conspiracy means each is accountable for whatever anyone else does, the prosecutor asserted. Just in case this point was not sufficiently clear to the jurors, the prosecutor raised his voice and asked, “Would any of you have gone to work the next day if any of their plans had succeeded? Would you have sent your kids to school?” An important element of the terrorism charges is the intent to commit terrorism, which all three defendants clearly had, he argued. Betterly’s comments on Facebook in April, for example, show his intent to commit terrorism. He accompanied these arguments with photos of the NATO 3 masked up at protests. Further, since an act in furtherance of the conspiracy is needed to find guilt, the jury should consider acts such as the defendants driving by Obama’s campaign headquarters and buying gas. Since there is a conspiracy charge, if one of the defendants did an act in furtherance of the conspiracy, they are all guilty. In fact, the prosecutor argued, they all did acts, so they are definitely all guilty.

Next, the prosecutor walked through the elements of the material support for terrorism charge. Currency or other financial securities are needed for this charge, which the prosecutor argued is satisfied by the defendants buying gas for their road trip to Chicago and for the Molotovs, as well as by Church providing his car for their trip. Another element of this charge is training, which is satisfied by the defendants training in de-arrest tactics since this shows their desire to fight police, be at war with them, and target them. Another element, personnel, is satisfied by Church recruiting other activists and providing expert assistance when making the Molotovs.

For the possession of an incendiary device with the intent to commit terrorism, the prosecutor argued that all three defendants had the intent to commit terrorism, which proves that they had possession of the Molotovs with the intent to commit terrorism. Additionally, under this law, the defendants are guilty of this charge because they had control over some pieces of the Molotovs, even if they had never touched them. Their belief that they possessed these weapons is further supported by Church and Betterly driving to Indiana to pick up one of Betterly’s friends because they thought the Molotovs were in the car trunk.

Additionally, all three defendants are guilty of the possession of an incendiary device with the intent to commit arson charge because they intended to burn a building down. They are also all guilty of solicitation to commit arson because they asked others for the materials needed to create Molotovs. Just in case the jury had any lingering doubts about the defendants’ guilt, the prosecutor told them about the law of responsibility. This law says that if you see a crime being committed and you help it along or try to, then you are guilty of that crime.

For the rousing conclusion, the prosecutor reiterated that Church’s comment that Chicago will never be the same shows his intent to commit terrorism, and thus all three defendants are guilty. Further, he told the jury, if you believe Chase constructed the Molotovs with the intent to commit terrorism, then all three of them are guilty of that charge, not the lesser-included mob action charge. The slideshow cued up photos of the defendants masked up with the alleged quote by Church: “The city doesn’t know what it’s in for and after NATO the city will never be the same.” These men are terrorists, the prosecutor said, and they came to the city to commit terrorism.

Brian Jacob Church’s Closing Arguments

Michael Deutsch of the People’s Law Office, one of the attorneys for Church, gave the closing argument for Church. He started off by thanking the jury for coming everyday and listening to the trial. He also told the jury that independent people like them, who are not tied to the narrative of terrorism, are needed to judge the facts in the case. Additionally, there are three important principles for the jury to consider: the defendants have the presumption of innocence, the state must prove their case, and the jurors must not have any reasonable doubt in their minds about the defendants’ guilt.

The prosecutors bringing terrorism charges in this case without credible evidence diminishes the seriousness of terrorism, disrespects victims of real terrorism, and trivializes real investigations into terrorism. The state of Illinois passed terrorism laws with high standards to be met to find someone guilty of terrorism. Thus, the jury has to find that the defendants intended to commit a terrorist act and had the intent to intimidate or coerce a significant portion of the civilian population. This law was written that way so that cases like this would not be brought, Deutsch argued. He also reminded them that they have to find that the defendants had an agreement to commit terrorism in order to find them guilty on all four terrorism charges. “I submit to you that the evidence in this case doesn’t even come close to that,” Deutsch argued.

Regarding intent, he argued that the defendants had the intent to talk, to impress the undercover cops since they were older, and to present themselves as experienced protesters. In contrast, the state had tried to bootstrap a joking conversation about Chase bringing Molotovs to a protest into their case against the defendants. In reality, the defendants did not do anything, create any plans, or make any progress until the undercovers raised the idea of Molotovs on May 16, 2012 because they needed results to satisfy their superiors.

This case is about intent, Deutsch argued. As such, the jury needs to consider all the evidence in the case to decide the intent. The undercovers clearly had the intent to encourage the defendants to take illegal action. The jury also has to decide the credibility of the undercovers as they evaluate the evidence in the case. He reminded the jury that there are no recordings of any of Church’s alleged plans to support the state’s claims. Further, each undercover’s testimony had been contradicted by the recordings and by the other’s testimony. For example, Uygun had brought up the issue of pipe bombs for the first time on the stand, showing that it was easy for the undercovers to continue to lie in court as they had during the undercover operation.

Regarding the undercover investigation, the cops had seized Church’s computer but presented no evidence from it. They also had lots of surveillance but no photos of illegal acts. “Why didn’t the undercovers ever do reconnaissance with Church? What’s going on here?” he asked. The truth is that Church wanted to be in the mix and impress others, so he contradicted himself and made stuff up. He also made excuses and apologized to the undercovers for not doing anything. He did not want to do anything; he just wanted to talk big. So when something happened on May 16, he put himself on the other side of the porch from where the Molotovs were being created. He also made excuses for why he could not participate, such as by saying he could not reach bottles, leading Chikko to grab them, and saying they could not use the gas from his car because he had paid for it himself.

On May 16, Deutsch argued, the undercovers realized they did not have anything to show from their investigation and they had to get the defendants to do something, so they proposed Molotov cocktails.  The undercovers directed Church, they were not just going with the flow. Also, Uygun put the Molotovs in the apartment to make sure they were there for the raid. After the Molotovs had been created, Church told Chikko she could throw them against stones down by a nearby pond but he was too cold and tired to go. Thus, he clearly had no intent to commit terrorism. He also brought his weapons to town because of his adolescent fetishization of them, not because he intended to commit terrorism. Those weapons were legal, Deutsch asserted, not instruments of terrorism, just as the firecrackers allegedly recovered were tiny, not instruments of terrorism.

Deutsch said that the lesser-included mob action charge may be an appropriate charge, but the state charged terrorism because they wanted to justify the NATO summit security expenditures. For the jury, finding Church not guilty does not mean that they agree with him but is a way of honoring the legal system and not trivializing terrorism.

Brent Betterly’s Closing Arguments

Molly Armour, one of the attorneys for Betterly, gave his closing argument. She started off by thanking the jury for giving up time with family to be part of the justice system. She also asserted that she is confident the state had not met its burden of proving beyond a reasonable doubt that Betterly is guilty of the charged offenses. She then showed the jury photos of Betterly at protests to illustrate who he is and what his intent was on the night of May 16. Betterly was part of the Occupy movement in various cities, she said, and he believed he was spreading a message of social and economic justice. While he was part of peaceful protests, he talked about them in grand ways and, while he started some trouble, it was all peaceful civil disobedience. For him, “riot” meant a large and rowdy protest, not what the prosecution claimed it meant to him. Also, he had been threatened by cops because he was a protester and these experiences affected him.

Armour also clarified for the jury that a statement made by one of the defendants may be used against the others, but they must decide if it should be. As such, they have to weigh the credibility and seriousness of the statement. Church and Chase are not credible, she said. They exaggerate. Many people exaggerate and lie, of course, like the gas station manager and undercovers did on the stand. The prosecution only showed the jury the defendants’ comments out of their original joking context. For example, the Facebook content has “riot” in it but also “lol” and “lmao.” Additionally, Betterly had food stamps because he was an unemployed electrician; they were not material support for terrorism.

The cops had “violent anarchist” goggles on and that is all they saw; that is how they saw the defendants when they first met. The undercovers did not meet Betterly until May 3, and information in Chikko’s affidavit about the recordings only said that he had traveled from Florida to Chicago. In fact, the undercovers only ever saw him around the time of protests because that is why he had come to Chicago.

Even so, the cops had those goggles on. On May 16, Uygun was the first to mention Molotovs, but he said Betterly had been the first when he said “boom” after Chase talked about throwing a brick. Chikko also admitted that Betterly was not in the apartment when she got the bottles down from a high shelf to make Molotovs. Further, Uygun said Betterly was on the porch when the Molotovs were made, but he is not on most of the recordings. When he was on the recording, he said “it smells like gas” inside the apartment three times—even though Uygun said he was only inside for two seconds. This testimony is not credible at all, Armour argued. Uygun also claimed that the gas fumes were so strong that he had to back away but that Betterly sat right by the puddle of gas and said nothing the whole time. Additionally, the state’s audio technician testified that background sounds show a lot about what was happening at the time, yet there are no sounds of Betterly moving past the recording device to go inside the apartment—because he was already inside. The recordings also did not capture Uygun trying to involve Betterly in making the Molotovs, as he had done with Chase and Church—because he was not on the porch when they were being made.

The undercovers’ testimony was not honest or credible, Armour argued, and that is reasonable doubt. Chikko testified that Betterly was in and out of the apartment, but Uygun said he was only inside for two seconds. Yet there are no photos of anything to prove who is right. Why are there not any photos, she asked. Moreover, when she testified for the state, Chikko recalled every detail of the investigation, but she had amnesia when she was cross-examined. Another thing for the jury to consider is that a Molotov is nothing without a wick, and Uygun admitted he cut his bandanna for wicks. Yet he claimed he was not participating in making the Molotovs. The undercovers’ testimony is not credible at all.

During their testimony, both undercovers admitted Betterly never discussed plans for the Molotovs. Betterly clearly had no intent to commit terrorism; he was just talking big. The prosecution also told the jury all sorts of things that they would prove about Betterly, but they lumped all the defendants together and did not show evidence against Betterly. The prosecutors also said Betterly gave expert advice about making Molotovs, but his advice was not taken, as the bomb technician’s testimony showed.

There is a natural explanation for everything the prosecutors showed as incriminating evidence, which amounts to reasonable doubt. Armour told the jury that the prosecutors want them to take everything in the worst light and find guilt, but there is no evidence to substantiate the charges. The truth is that Betterly never had the intent to commit arson or terrorism.

She also told the jury that they would be receiving an instruction about “mere presence,” which she argued will be key when finding Betterly not guilty because mere presence is not sufficient for a conviction if the person does not have the intent to commit a crime. Further, the defendants never had possession of the Molotovs, as only Uygun did. There is no evidence of Betterly manufacturing the Molotovs either. Additionally, the accountability instruction the jury would receive shows that intent is necessary, but there is no evidence of intent.

The case against Betterly was built on scant evidence and false testimony, Armour argued. The jury should be outraged. The prosecution did not meet its burden of proof. This important principle protects us from tyranny, and she is confident the jury will find Betterly not guilty.

Jared Chase’s Closing Arguments

Tom Durkin, one of the attorneys for Chase, gave the closing argument for Chase. He began by reminding the jury that he had told them during his opening remarks that, at the end of the trial, either the prosecution or the defense would be wrong. He believes the jury will agree with him that if the defendants are terrorists, then we can all sleep at night. “I also stand by saying the defendants are goofs,” he said. “The state was wrong to charge them with terrorism. I care a lot about who is labeled a  terrorist and if these guys can be called that, we’re all in trouble. Can you allow any prosecutor to convict on flimsy evidence?”

Durkin also argued that the prosecutors flip flop on what are the alleged weapons in the case. For example, the so-called shield would be Exhibit A in a reasonable doubt case, but not a terrorism case. As the NATO summit was a virtual armed camp for the weekend and there were thousands of cops in the streets, there is no way beer bottles could be used to intimidate or coerce a significant portion of the civilian population. Rather, these claims show how desperate the state is to get a terrorism conviction. He then held up a small slingshot, mockingly calling it a weapon of mass destruction, and then a PVC pipe used for shooting off bottle rockets. He also reminded the jury that they had heard evidence of cops stopping the defendants and threatening to crack skulls with billy clubs at the NATO summit.

Further, the state has the burden to show that the defendants had the intent to commit terrorism, not just to do something illegal. The prosecutors cannot prove this intent, he argued. If the conspiracy really started in April 2012 in Florida, why could the defendants not get anything done? If the jury can draw two inferences from the facts, then that is reasonable doubt and they must acquit.

The defendants are not sympathetic characters, Durkin said, but the jury must be sure not to be prejudiced against them because of any fear of terrorism. The prosecutors were trying to play on these fears. Why did the prosecutors take a long-distance photo of the Chase Bank, he asked. “Does it remind you of anything?” he asked the jury. “Everyone remembers 9/11,” he said. Similarly, for the photo of the Multi Kulti activist center, was it necessary to see skyscrapers downtown from the fire escape to show where the center was?

Regarding some of the other evidence presented, the so-called de-arrest training only lasted three minutes. “Is that military style training for terrorists?” he asked. He also argued that the defendants being on the front page of the newspaper at the Mayday march is not evidence of their intent to intimidate or coerce a significant portion of the civilian population. And the only reason they are on the front page now is because the prosecutors made this a big case. Concerning the GPS tracking evidence, it is a leap to conclude that the data shows that the defendants were casing targets because they were clearly going to the Occupy Chicago encampment. The GPS evidence backfires on the prosecution because there is another, more feasible interpretation of the data, which creates reasonable doubt.

Durkin also remarked that the prosecutor had asked the jury what would have happened if the defendants had been successful. Perhaps the question should have been, “Isn’t it amazing that the Chicago Police Department found the only terrorists?” He also said that he thinks it is improper to put weak evidence into a trial and to overcharge a case. There is not a shred of evidence that the defendants could have gotten anywhere near Obama’s campaign headquarters, so it is ridiculous to say there would have been a pipe bomb attack. He asked the jury, “Are you kidding me that these three guys could terrorize Chicago? Aren’t we bigger than that?” He also said that, to have a great America, the jury has to convict only when there is no reasonable doubt; they cannot confuse what terrorism is when deciding their verdict.

Further, he argued that they could tell the case is weak because the prosecutor was not giving them all the evidence due to their fear that the whole story would hurt their case. The undercovers repeatedly said they were not looking for anarchists, but the evidence shows they were. Why not admit it? A reasonable inference from the evidence presented is that the terrorism charge is helpful for justifying the NATO summit expenditures. He then told the jury that he trusts them not to be prejudiced against the defendants and not to give in to the fear of terrorism after 9/11. Reading a quote to them about applying the law to their enemies, he reminded the jury that their job is to apply the law without prejudice. To finish his closing argument, he told the jury about the Sacco and Vanzetti trial from the early 20th Century, in which anarchists were wrongfully executed. He asked the jury not to make that mistake with these defendants.

Arguments about Jury Instructions

After the defendants’ closing arguments, there were some oral arguments about how the jury would be instructed to evaluate the evidence in the case and to consider the points of law when issuing their verdict.

The prosecutors first asked the judge for permission to address the War on Terror since the defense talked about it in their closing arguments. In response, the defense said their pre-trial motion regarding the War on Terror was about not admitting evidence of terrorism cases into the trial, not into the closing  arguments, so this is a non-issue.

The prosecutors also requested an entrapment instruction for Betterly based on his closing arguments. His lawyers objected, saying they made arguments about the cops’ behavior, not about entrapment. For example, the defense attorneys said, Uygun admitted he helped make the Molotovs by cutting wicks for them even though he first denied that he had helped, so their argument was about his credibility. The judge then ruled that the entrapment instruction will be applied to each of the defendants, but that the state cannot assert that Betterly was arguing entrapment, only that the other two were.

In response, Durkin argued that the entrapment instruction should not be applied to Chase, as he did not go near that argument in his closing. The judge then told the state to tell the jury about the improper entrapment defense in generalities, not specifying which defendant did so in which ways. He also said that he will read the entrapment instruction, so the prosecutors should focus on describing the facts of the case that they believe show that there was not entrapment. The prosecutors then said that they do not want to do that at all, just address the “soft entrapment” defense instruction so the jury understands that using an entrapment defense means admitting guilt to the charged offenses.

The prosecutors next asked the judge to reconsider the mob action lesser-included offense for Betterly because his closing said he had no intent to do anything illegal, but a lesser-included charge cannot be included if it is counter to the defense theory of the case. In response, Armour asserted that she had said that Betterly knew he could get arrested for civil disobedience, so she was not arguing that he had no intent to do anything illegal at all, but that this does not mean he has to admit guilt to the lesser-included charge. The judge then denied the prosecutors’ motion to reconsider giving the jury the option of convicting on the mob action charges, so that option would be given to the jury for each of the defendants.

Next, the prosecutors requested a jury instruction that would state that Molotovs are inherently dangerous, as the defense for Betterly called them “hijinks.” In response, Armour said that “hijinks” referred to the intent of the Molotovs not being to harm people or commit terrorism. The judge ruled that Molotovs are inherently dangerous as a matter of law but that he would only instruct the jury on the legal definition of an incendiary device if they asked.

Finally, the prosecution argued that the description of possession given to the jury during Betterly’s closing arguments was an inaccurate representation of the law and that they jury should be given a proper instruction on the law. The judge agreed and said they would be given an instruction.

State’s Rebuttal Arguments

The prosecutor began the state’s rebuttal argument with, “Are you ready to see a police officer on fire?” That is why the city would never be the same, he argued. Demonstrating his dramatic flair yet again, he raised his voice to emphasize, “How dare they crouch behind the legacy of non-violent protest?” He then mentioned famous figures including Martin Luther King, Jr., Gandhi, and Mother Teresa. After giving each of the defendants nicknames (e.g., Captain Molotov), he said the question is whether they came to Chicago to terrorize the city. He claimed that the defendants are guilty of all the charges because their intent is clear; there is nothing random or funny about this case. The defendants wanted to create images and spread them across the city, that is why this is a terrorism case. They also said they wanted more than protests. They drove for days to get to the NATO summit. They did not have to come to Chicago to commit violence, but they wanted to terrorize the city.

They wanted to burn down symbols of the economic system, such as banks. “That’s what Molotovs are for—burning things down,” he argued. They did not burn anything down because the cops caught them. When they decided to attack symbols of the economic system, cops would have been the first to respond, so that is why they are the perfect symbol to attack. “A cop on fire would terrorize anyone,” he argued. Additionally, the defendants could have blown up pipe bombs at Obama’s campaign HQ to get in the news, so it is bizarre for the defense attorneys to suggest otherwise. The defendants had chosen Chicago to send a twisted wake-up call for their violent anarchist revolution. Politics is not the issue, violence is, he argued.

If the defense presents a theory of the case, he told the jury, they can examine it. One theory is that the defendants never did anything. They did not do anything because they were caught, he re-asserted. Additionally, the case is about intent and the defendants intended to commit terrorism. Conspirators do not have to be successful to be guilty, as intent is guilt. Similarly, he argued, this case is about preparation and intention, not execution. That is why the defendants were charged with conspiracy and material support for terrorism.

The prosecutor also argued that the undercovers testified credibly. They know drunk people and know that the defendants were not drunk. Additionally, they were only drinking beer, not hard liquor. There is no evidence of defendants binge drinking and the cops barely gave them any. Thus, their drinking casually while plotting violence is not exonerating evidence. Their drinking had nothing to do with their conspiracy and did not prevent them from recruiting others or conducting reconnaissance.

Regarding entrapment, the prosecutor argued that the defense of entrapment is not available to a defendant who denies the commission of a crime and that there was not entrapment if the defendant was predisposed to commit the crime. He then argued that the defendants had planned in Florida to riot in Chicago. “How did the cops get them to do this before they met them?” he asked. “The cops didn’t target them, they reached out to the cops.” Additionally, the cops were not present when the defendants built the shield and mortar, or when they used explosives in the past. Thus, the cops could not have entrapped them.

Further, all of the defendants participated in creating the Molotovs. The defense is wrong about the possession law, he argued. Possession can be direct or through another person. The tapes also show that the defendants took independent action to create the Molotovs, so the cops asking about them does not excuse the defendants from personal responsibility. Similarly, the cops had to talk about explosives so they would fit in with the defendants and not be pushed away. This was necessary so they could protect the city like we all want them to, he argued.

Much more than mob action happened in this case, the prosecutor argued. The defendants are guilty of all the offenses charged and tried. While the defense called the defendants’ statements jokes and blowing off steam, they are taking the statements out of context. Further, the First Amendment is alive and well in this case, he claimed. “As an American,” he said, “you can speak your mind and even have hatred, but when that spills over to plans, that’s crossing the line.” He finished by asking the jury to convict on all seven counts.

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