Status Hearing June 25

* The evidentiary hearing and oral arguments on the motions to dismiss charges and Brian Jacob Church’s motion to suppress his post-arrest statement were not held today but were postponed till July 9th at 2pm. These notes are on the status discussion that took place today and why the hearing did not take place as originally announced.

The hearing started with a private discussion in chambers where (according to the judge afterwards) they held an in-camera inspection of the 1st amendment worksheets the State has been dragging their feet to deliver.

Judge Wilson opened the hearing discussing his relationship to a friend of one of the officers involved in the CPS surveillance team. Apparently, a former law partner of his is also an associate of one of these cops. He decided that this was not a sufficient reason to recuse himself from the trial, but he gave each defendant and the State the option to object to him remaining the presiding judge. If any objections were made, he would present the case for reassignment. No objections were made.

First Amendment Worksheets were also tendered to the defense, with a protective order placing them under seal. Defense attorney Durkin asked if the court will keep the protective order itself under seal and if information will eventually be made public. Judge Wilson replied that he will act as “gatekeeper” of the information, determining if information will be made public and when. He also clarified that the motion for the protective order and the protective order itself will be unsealed, but the protected information will remain sealed. The judge further suggested that a freedom of information request could be made by the media for the content of the sealed documents, or they could wait for the court order unsealing them.

There was also a discussion about the phone records of officers involved in the Field Intelligence Team that had been investigating Occupy Chicago and the defendants. The judge clarified that the sealing discussion involved the 1st Amendment Worksheets, not the phone records. However, the defense argued that the State’s motion to provide the cell phone records with the phone numbers redacted will prevent them from determining who called whom and who was responding to each call. The State argued that the issue is about divulging police officers’ private records and that the information they want to redact would be what you would see on a personal phone bill (e.g., personal phone numbers, home addresses, etc.). The State also mentioned that the main problem, as they see it, is that the phone company did not save the content of text messages, only call records. To resolve this issue, the judge ordered the prosecution to provide the defense with an opportunity for an in camera review of these documents in the prosecutor’s office and gave the defense the option of filing a motion about this issue if this review is insufficient.

Defense attorney Durkin then presented Jared Chase Exhibit A featuring several documents just released by the State in discovery, listed numerically as 07448–07473. These documents feature an email exchange between the prosecution and the Chicago Field Office of the Secret Service discussing the alleged plans to attack Obama’s campaign headquarters. Bates stamped page 07470 is an email in which the Secret Service states that at no time did the defendants reconnoiter the campaign headquarters and there was never a threat to this location. Durkin argued that these documents are “extremely exculpatory” and may influence upcoming motions to dismiss charges and may speak to the as-applied constitutionality challenge to the terrorism charges, which the defense has the right to renew. Durkin also argued that these documents could also call into question the original indictment, as it is likely that there are people who had access to this information before the original indictment was issued. The judge was clearly displeased that Durkin brought these documents up today, saying that they seemed like issues for trial (i.e., they would speak to the weight and credibility of the State’s evidence). Durkin responded by pointing out that both discovery and the indictment could be called into question by the emails, so they are not just issues for trial. Attorneys clarified at the end that these were emails made between the Secret Service and other law enforcement entities.

The defense then discussed a recent discovery motion regarding any police department records of other apartments searched during the raid and arrests of the NATO 3. The discussion focused on an article citing someone using the name “Ben” and other unnamed persons identifying as neighbors of the Bridgeport apartment as evidence that other apartments were raided and other individuals interrogated (this is likely the article referenced: The State had just received the motion and had asked the defense if they had interviewed the person referred to as “Ben” in the article. The defense replied that they could do that, but the judge had asked for documentation indicating raids on other houses before issuing an order about discovery on this matter, so they had provided this documentation. The judge then ordered the State to respond to this motion by the next court date, if possible, after further consultation with the defense.

The hearing then focused on Brian Jacob Church’s motion to suppress his post-arrest statement. The defense had originally filed the motion and then amended it with more legal theory. The issue in question about holding the evidentiary hearing regarding Jacob’s post-arrest statement was whether or not the prosecution intended to use the statement at trial in some form: either in its case in chief or as impeachment if Church decided to take the stand in his own defense. The prosecution indicated that they currently do not plan to use the statement in their case in chief but may may use it if the defense called Church to the stand at trial. The defense argued that if the State decides not to use it in any form during the trial, then the judge can issue an order saying that it cannot be used. However, if the State wants to reserve the ability to use it in some form, then they would need to have an evidentiary hearing on it prior to trial because there are Miranda and constitutional issues with it that should deem it inadmissible.

Specifically, the defense argued that Church was intentionally denied access to counsel, even when counsel was at the jail after searching for the defendants for 17 hours, during which time they had been chained up and questioned without charges. The defense further specified that this showed a Miranda violation because the statement was not voluntary since Church’s will had been overcome by the duration and conditions of his interrogation. Additionally, the post-arrest statement was unconstitutionally obtained because it violated IL State Constitution Article 1, Section 2 (right to due process) and Article 1, Section 10 (right to avoid self-incrimination) [available at]. The defense argued that this violation of Church’s constitutional right to due process and against self-incrimination had been violated because of these conditions and because he was denied counsel. They also asserted that the burden to move forward on this issue is the State’s and that it’s not fair to wait until trial to see if Church takes the stand to resolve these issues.

The judge asserted that the court would deal with these issues early and would not wait for trial. However, the judge also told the defense multiple times to pay attention to the Miranda issues regarding the use of the statement for impeachment, as he was not sure if the denial of access to counsel speaks sufficiently to the voluntariness of the statement. The defense responded that the issues are denial of counsel plus the other elements. The prosecution then reiterated that they currently intend to use the statement if Church takes the stand but want to review the case law and determine if they want to stick with that plan or not. The judge then set the evidentiary hearing on this matter on July 9th at 2pm by agreement by all parties.

The judge next asked if either side had begun preparing their trial memos and jury questionnaires. The judge said he had a questionnaire he uses in all his trials that needs to be updated, but he would provide them all with a copy. Defense attorney Durkin then said that he has an example questionnaire that he used in a previous terrorism case that he tried in San Diego that he would share with everyone.

At the end of the hearing, the prosecution quickly reviewed the discovery submissions recently received from their request of other law enforcement agencies and cell phone companies: Secret Service emails (discussed earlier in the hearing), the Illinois State Police said they had no documentation on the investigation, the TSA provided material on the trained police dog who did the search of Church’s car, the sole report from 5 May 2012 regarding a medic training, and a report on cop cell phones (discussed earlier in the hearing). The prosecution clarified that they are still awaiting cell records from Verizon Wireless and AT&T, although the Sprint records have already been tendered.

Next court date: Tuesday, July 9th, 2pm. There will likely be arguments on the motion to suppress (if needed) and on the two motions to dismiss charges.