Status Hearing July 23

The judge began the hearing by denying the defendants’ joint motion to dismiss the arson charges. He stated that the indictment offered sufficient and particular enough information to help the defendants prepare their defense and to guard against subsequent indictments (e.g., double jeopardy), which is in accordance with the law.

The judge then discussed the defense’s request for the State to produce documentation regarding three separate First Amendment investigation applications and worksheets. The judge had conducted an in camera review of the documentation to determine whether they were relevant to the case and had probative value. The three investigation numbers are: 191-2011-01 (concerning the NATO investigation), 191-2011-02 (concerning the Occupy investigation), and 191-2012-01 (an infiltration request concerning CANG8 [Coalition Against NATO/G8 War & Poverty Agenda]). The judge said that the prosecution had already been ordered to turn over the NATO investigation documentation but that the other documentation was not relevant to or probative about the charges faces the defendants because none of them were listed as targets or intended subjects of the investigations. Additionally, this documentation did not include any reference to Sebastian Senakiewicz or Mark Neiweem, who the judge called “somewhat related defendants.” The documentation also showed that the request for permission to infiltrate CANG8 was denied as it made its way through the Chicago Police Department procedures for infiltration. To conclude, the judge said that he would be sealing and impounding these documents so they would be on the record for the appellate court.

Later, the defense noted that, from what it can tell about the Chicago Police Department’s policies, there needs to be a special order approving infiltration of a group but that order hasn’t been provided to them through discovery yet, so there seems to be a gap in the evidence against the defendants. The judge replied that he had reviewed all the available documentation and that none of it that hadn’t already been handed over was relevant or probative, but he was sealing and impounding it just in case. He also said it would behoove the State to ensure they had provided all the documentation they have on that matter as they say they have so they won’t have problems later on.

The next issue discussed was the defense’s motion to compel discovery about the searches of neighboring apartments to the one that two of the defendants were arrested in. The defense argued that they had produced evidence of these searches by submitting a motion with a copy of a newspaper article quoting residents of those apartments talking about their experiences being raided, handcuffed, and interrogated and harassed by the officers. Since they had produced evidence of these searches, the defense argued, there should be documentation about them and this should be discoverable. If there is no documentation, then the State should produce an affidavit saying that. One of the defense attorneys argued that if an officer who was present at the apartment raid got on the stand at trial, he would question that officer about the other searches during cross-examination, so this issue had to be resolved prior to trial. For example, the defense attorney argued, it would be relevant if the officers had obtained search warrants or not and how they interacted with these other residents, as that could speak to their demeanor that day and credibility overall.

The prosecutors argued that nothing in the newspaper article showed that the residents of other apartments were questioned about the defendants or about anything concerning the investigation into these alleged crimes, so no documentation of those searches, if any existed, is relevant to this case. The State also argued that the police reports already provided to the defense mention the other searches and that’s sufficient.

The judge ordered the State to check with the CPD about documentation of those other searches and to provide them to the defense if they exist and to submit an affidavit saying they don’t exist if this is the case.

Next, the State reviewed its discovery updates. They got the analysis of the defendants’ fingerprints back. They also submitted some reports from the FBI’s Regional Computer Forensic Laboratory (RCFL) and expect the four final discs and two final reports about creating mirror images of the hard drives seized in the raid within the next week and a half. They also expect the report on the handwriting exemplars the defendants submitted to be done by the end of this week. They said they would make all this information available to the defense for pickup in their office. The judge then ordered them to produce their long form answer on outstanding discovery issues within two weeks.

Finally, the judge discussed the trial date, as he thought that pushing it out till next March was too long. After much back-and-forth about schedules and the time needed to prepare the defense, the judge suggested January 2nd and 3rd for jury selection, with the trial itself starting on January 7th or 8th. He expected to use one jury (i.e., for a joint trial for all three defendants) and for the trial to take two or three weeks. The defense and prosecution must work out their schedules to make these dates work and send him a notice of this scheduling agreement when they have it. The judge will also check his trial calendar and they will set the dates for certain at the next hearing. The defense then asked for a larger courtroom for trial and the judge said he would look into it, but they should expect to have trial there.

The next status hearing is on Tuesday, August 6th at 2pm.