A Judge and Civil Disobedience
Finally a Judge Who Supports Civil Disobedience by Steve Clemens. November 6, 2009
The style and affect of the two African-American Judges couldn’t be more pronounced: Dark-complexioned, gaunt, stern and decorous Edward Wilson in St. Paul is a stark contrast with the light-skinned, jovial, extroverted Judge Darryl Lowe in Omaha. I faced both Judges this fall for acts of nonviolent civil disobedience and left the Courtrooms in Ramsey County, MN and Douglas County, NE with vastly different impressions.
Granted, one Judge presided over a full-fledged jury trial for protest at the Republican National Convention while I encountered the latter after a 30-hour stay in the county jail in Omaha for an initial arraignment or bond appearance. Yet the results were diametrically opposed. Maybe it was due to fighting the charges in one case while being really to “roll over” on the other – but I think that wasn’t the only or primary reason. It was the way Judge Lowe’s face lit up and his whole attitude changed when he discovered this was a case of civil disobedience rather than four aging drunk men in front of him. But I’m getting ahead of the story.
I should start at the beginning of this witness for peace for me. Frank Cordaro and Jerry Ebner of the Des Moines and Omaha Catholic Worker communities respectively encouraged me to join them last summer for the annual nonviolent vigil outside Offutt Air Force Base just south of Omaha which surrounds the anniversaries of the atomic bombings of Hiroshima and Nagasaki. As we baked in the 100 degree heat this year, Frank asked me to return to Nebraska in November for what has also become an annual arms bazaar in downtown Omaha. He was trying to recruit some others to join him in some creative nonviolent action in public protest. He warned me ahead of time: you never know what the Judge you face will do - but evidence from the past is those who are from out-of-state who are arrested will most likely be thrown in jail overnight and should be brought before a Judge the next day. Given the results of last year, if you plead not guilty or no contest, you will likely be issued a fine plus court costs. If you refuse or cannot pay the fine, it will likely mean 4-5 days in jail.
So I packed my bag and drove the six-hour trip to Omaha in order to arrive for our nonviolence training and action planning session which was to take place at noon on November 3, the day before the planned civil disobedience. It appeared ahead of time that there were likely to be four of us who were willing to risk arrest, down from the eight from last year. In 2008, four of the eight were local activists and they received a citation at the police station and were released with a future court date; the other four out-of-state arrestees were transported to the Douglas County Jail and appeared before a Judge the following day. Two of those four pled guilty and received five days in jail when they told the Judge they would not pay the $250 fine and court costs for reasons of conscience. As Catholic Workers, they couldn’t stomach the idea of paying for the “privilege” of protest while their communities were inundated with the needs of the growing homeless and destitute populations in their cities.
The two other Catholic Workers chose to plead not guilty and remained in jail for a future trial. After two weeks, one of them was needed home at his community in Duluth so he changed his plea to guilty and was released with “time served”. The fourth protester remained in jail for 38 days before having his charges dismissed by the Judge at trial when the County Prosecutor failed to present compelling evidence of his guilt. But he had spent 38 days in jail! Lest you think that a waste of time, many Catholic Workers find “ministering” to those behind bars to be not that different than their work with those who have been marginalized by our society and who end up homeless on the city streets. One sometimes finds homeless people who opt for “three hots and a cot” by committing petty crimes and going to jail rather than face brutal conditions on the homeless streets in northern cities as the weather turns colder.
At the nonviolence training, I learned that the four of us who planned to risk arrest were to be joined by two other local people, both seasoned activists – one of whom was 91 years old, the indomitable Peg Gallagher. Because all the participants had participated in numerous peaceful civil disobedience actions in the past, we felt we could dispense the nonviolence training portion of the afternoon and go directly into planning the “action”. The plan agreed to by all was a symbolic “die-in” in front of the entrance to the convention center where the arms bazaar was held, the same place where legal vigils had taken place over the past two days. A lawyer with no criminal trial experience met with us to be sure we were aware of the possible penalties for the action. Each of the three possible charges we would face could carry a six-month jail sentence and/or a $500 fine and conceivably the City of Omaha could seek to prosecute on all three counts. However, the most likely scenario would be a charge of “refusing to leave” and would likely incur a fine for local people and overnight in jail for those of us from states other than Nebraska. We might receive “time served” when we faced a Judge or we might be given an additional fine. There are no guarantees when one “rolls the dice” in committing civil disobedience in what Judge you will get and how the prosecutor will respond. I went expecting to do five days in jail.
Two of the four out-of-towners were Catholic priests and the third was an ex-priest. All had been active for decades in nonviolent protest and Fr. Louis Vitale had more than 200 arrests and Frank Cordaro had spent years in various prisons for his life of activism for peace and justice. Interestingly, Fr. Jim Murphy, had never spent a night in jail despite his participation in numerous other actions where he had risked arrest in the past. This was likely to be his first – and he couldn’t have been in better company to join others who had more experience “locked up for peace”.
As we planned the style and spirit of the action, we discussed how we might respond to a possible fine, making sure each of us were free to chose our own responses without pressure from the others. Louis had already made commitments to speak at several events in Georgia within a few days and Jim had commitments at his parish which he hoped to be able to attend to. Frank and I had hoped to “do the time instead of paying a fine”. Frank told us that we should feel free to take the “St. Paul option” – when the Apostle Paul was arrested during the early years after Jesus’ execution at the hands of the state, sometimes he acted as a common Jewish teacher and took the punishment meted out by the authorities. At other times, Paul insisted on his rights as a Roman citizen in responding to the consequences of his arrest. Frank assured all of us that we should all be ready to invoke the “St. Paul option” if we felt we needed to – the important thing was that we were willing to take risks for peace.
The group planning the action decided we wanted to center ourselves before walking to the Qwest Center where the civil disobedience would take place so we chose to celebrate Mass at the nearby Holy Family Catholic Church. Father Louis would preside and be joined by the church’s former activist Pastor, 80 year old Fr. Jack McCaslin. It was no surprise to see Father Jack who is well known in the city for his leadership in peace and justice concerns. He recently survived a serious heart attack and we were pleased he was able to join us. Jerry from the Omaha Catholic Worker is a member of that parish and showed us the beautiful sculpture of “The Itinerant Preacher, Jesus” which graces the front of the sanctuary. That bronze statue is a moving, life-like presence of the carpenter of Nazareth who has challenged and inspired all of us in this work, whether Catholic or not.
Empowered and emboldened by the Mass, as we headed toward the Qwest Center, Father Jack told us he was hoping to join us! This was no small matter. Alongside his health concerns, he had been told by a Federal Judge that if he is arrested again, he will be sent to prison for six months – no questions asked. But when the Spirit calls, one has to choose whether to act on faith or fear. What an inspiration to have him join us! It looked like our median age would be in the 60s. Peg at 91, Jack at 80, Louie at 77, I’m 59, Frank is 58, Jim is 55, and Mark Kenny, another local veteran of the struggle for justice was to be our youngest at 52. We were surprised when Dan, a member of Nebraskans for Peace joined us at the last minute to add his youthful 22 years to our somewhat grizzled appearance.
A group of about 30 gathered in front of the main entrance to the Qwest Center. One was dressed as a specter of death and the banner in front read “Space Weapons = Death”. I read aloud a statement drafted by group members on why we were there and then a symbolic “die-in” was staged. Several members had to help Peg Gallagher lay down on the sleeping bag she had brought to protect her from the cold sidewalk. Others helped Father Jack down to the ground. After five minutes, it was announced we would move the die-in indoors to the lobby where we were stopped by security and told to leave or face arrest.
Peg Gallagher was processed with a citation right at the scene of arrest while the rest of us were handcuffed and driven to the County Jail. The other three local arrestees were booked and released. The four of us who were from other states were booked into the jail. This process took several hours before we were escorted to our cells. Jim and I were placed in Pod #5 and into A Bay where there were already 20 other inmates. There were two addition bays in our pod for a total of 66 inmates and all the beds appeared to be occupied. Louis was placed in Pod 5 and Frank in Pod 8.
We anticipated that we would go before a judge in the morning but were surprised when the Corrections Officer stationed in our pod asked if anyone wanted to go to the roof for the hour of recreation at 8:30 AM. Although it was still quite cold out, I knew we would be given a jacket so Jim and I were the only two who went outside that next morning. (Over 30 of us went out the afternoon before when the weather was warmer.) Fortunately Father Louis had also opted to go outside so we were able to visit with him between the fence separating our two rec areas. An hour after lunch our names were called to line up to go to court.
Prior to being ushered into the courtroom attached to the jail, on of the Correctional Officers warned to 60 or so of us in our orange jail uniforms: You are lucky today. You have drawn Judge Lowe as your Judge. If you had come tomorrow, you would draw Judge Swartz. Consider yourselves fortunate to have Judge Lowe. He is fair but somewhat eccentric. He might ask you all types of questions. Listen to what he says. If he suggests you might want to take a certain plea, listen to him because he will spell out the consequences to you. We were specifically warned not to talk or say anything in the Courtroom until or unless the judge addressed us.
The next two and a quarter hours were a mix between what appeared to be a made-for-TV comedy or a “Judge Judy”-type show. Judge Lowe’s comments were prolific, personal, outlandish, seemingly inappropriate, compassionate, and paternalistic – you name it. Clearly an extrovert who enjoys his position and power from the bench, the judge uses the platform in his desire to dispense justice. Without knowing the details of each case, it seemed to me that he was quite harsh in some instances and very compassionate or generous in others – but throughout I had the impression of a person who genuinely cared for the people before him.
The court session began with the more serious felony cases and then progressed to the misdemeanors. We had no idea when we’d be called. Finally the Courtroom was down to four older white male defendants. The clock was nearing 3:30 PM and the rapidity of the Judge’s dealing with the previous 4 or 5 inmates made it clear that Judge Lowe was determined to get out of the Courtroom on time.
The Prosecutor called out the next case, Louis Vitale, and added that these last four cases were all on the same charge: failure to leave at the Qwest Center. The Judge right away told us that he often attends events there and quickly asked the inmate before him what was his plea, guilty or not guilty? When Louis responded with “No contest”, the Judge immediately stated “5 days in jail. If you had said guilty, you would have gotten 3 days.” Father Louis tried to speak up to say he was actually requesting a postponement of sentencing so he could travel to Georgia over the weekend to fulfill some speaking engagements he had scheduled. The Judge would hear none of it. “If you want to contest this sentence, bond is $100,000 – to see if you can change my mind. Now get out of here. [To the corrections officers] Take him out of here!”
Next case: Jim Murphy is called to the bench. How do you plead? Jim swallowed and said “No contest – oh, I mean guilty”. “Good call”, the judge responded. “3 days. Next”.
“Case number xxx (I didn’t hear the number but did hear), Stephen D. Clemens. I walked to the podium in front of the Judge’s bench debating in my mind whether to risk the Judge’s anger with a “no contest” plea or to remain safe with the “guilty-as-charged” less-costly route. Just as I was prepared to jump off the cliff with my “no contest –BUT I need to tell the court that I am a regular blood donor – I donate platelets every two weeks in order to help save lives, and if you sentence me to more than three days, I can’t donate again for a year due to federal regulations”, wanting to force the Judge to choose between retributive punishment and saving lives, the Judge looked at me and instead of asking for my plea instead asked “What were you doing?” He had obviously in his haste failed to read the documents before him about the nature of our “crime”.
I responded, “We were protesting, your Honor, against an Arms Bazaar that was at the Qwest Center. Corporations are trying to sell high-tech weapons to the Air Force and space weapons to STRATCOM and we were protesting that.” The puzzlement on the Judge’s face was completely transparent as Frank Cordaro, the last defendant still in the back of the Courtroom stood up and said in a loud voice, “Yes, your Honor, you just sentenced two Roman Catholic priests to jail!” The Judge was even more dumbfounded. He quickly ordered Frank to come forward to confirm what he had said. He was horrified at what had just happened and immediately shouted to the Correctional Officers serving as court bailiffs, “Quick, bring those last two men back in here!” To the Court reporters he said, “Give me back those files. I don’t want to send priests to jail.”
“What, are you all priests?” he asked and I said I’m not even Catholic. He asked more questions about what we had done, the nature of the trade show/symposium at the Qwest Center and quickly apologized to the two priests. “I thought this was a case about four old inebriates, four drunks who refused to leave the Qwest Center. I’m sorry.” He continued to tell us how his parents were involved in the civil rights struggle and how much he respected civil disobedience. “I remember their stories even though I was only 4 years old at the time.”
His entire demeanor had changed 180 degrees. He smiled and laughed and told us he appreciated what we did. Of course he was changing the sentence to “time served” and “I’ll try to get you released as soon as possible. You do realize that might still take a couple of hours, don’t you?” He asked who were our friends in the visitor’s gallery and we introduced Jerry and Cassandra who were there to support us. Before we left the Courtroom, Judge Lowe reached down from the Bench and shook each of our hands. He thanked us for acting on our convictions, telling us, “I hope you will return to Omaha next year again.”
Finally, an African-American judge who understands that the road to his judicial robe runs directly through the legacy of Martin King and Rosa Parks. Too bad Judge Edward Wilson continues to deny that reality, thinking his own “bootstraps” got him to his seat at the Bench of Justice.