A Difference Between Night and Day: A Tale of Two Judges



A Difference Between Night and Day: A Tale of Two Judges by Steve Clemens. April 25, 2010

My trials were 7 months apart, almost to the day. One was in neighboring Ramsey County, the other in my home county of Hennepin. Both were for the same charge: criminal trespass and both ended with a somewhat similar sentence: continuance towards dismissal with conditions. In Ramsey County it was “no same or similar for 1 year”; in Hennepin it was “no arrest for trespass at ATK for 6 months.” However, the Ramsey sentence, besides being longer in duration also harbored a more threatening restriction – no arrest [for protest] anywhere in the world, whereas the Hennepin County Court Judge, instead of threatening told us we were welcome to “return to the scene of the crime” (so to speak) by attending the weekly Wednesday morning vigil; we were just to avoid going on Alliant Techsystems property for the next six months. But, if we did, we’d still qualify to get the jury trial we originally planned for –albeit not a speedy one.

I think the differences we experienced in court demonstrate how subjective justice can be with our present system. Much of the experience depends on the judge assigned to one’s case. On the surface, I’d suppose that an African American judge might be somewhat more sympathetic to civil disobedience and principled public protest because without precisely that happening 50-60 years ago during the Civil Rights struggle, we would likely not have many jurists of color on the Bench. That said, one only has to look at the record of Clarence Thomas on the US Supreme Court to disabuse one of stereotyping Black judges as progressive.

But it was an African American District Court Judge I faced in September 2009 for the prior year’s arrest at the Republican National Convention. Judge Edward Wilson, however, had no patience whatsoever with our desire to discuss the US Constitution, International Treaties and Laws, UN Resolutions, or even the MN State Constitution in our “Claim of Right” defense for the trespass charge. Never before had I faced a judge so controlling in this my 5th jury trial on identical charges. In fact, 3 of the prior 4 juries found me “not guilty” after hearing our testimony; the only guilty verdict coming in the wake of 9/11 and the initial popularity of the Afghan War.

So, given Judge Wilson’s hostility, especially evident when I attempted to testify in my own behalf and was interrupted about 30 times by either the Judge or the Prosecutor, it was no surprise that the Ramsey County Judge slapped a $100 fine (or 20 hours of community service), insisting that it also be done in his county, not “anywhere in the world” like his “no arrest” restriction plus $81 in “court costs” which could not be substituted with community service.

The contrast in the Hennepin County Courthouse this week couldn’t have been more pronounced. At first, our trial date was set for April 15th, Income Tax Day. The assigning judge instructed us to go to Courtroom 753 and present our case to Judge Peter Cahill. I’ve written elsewhere about that experience (A Hearing in Lieu of a Trial) which concluded in an official Court Hearing on Friday, April 23rd. Over the weekend I wrote letters to ATK’s new CEO, Mark DeYoung as well as to Eden Prairie Police Lieutenant Tracy Luke inviting them and other arresting officers to attend the Hearing to see what we had to say. Email requests for media coverage were sent to local reporters as well in the days prior to the Hearing.

Promptly at 9 AM, Judge Cahill took the bench and welcomed us. I made a few prefatory remarks about how we wished to proceed and thanking Lt. Luke for her presence in the Courtroom. I made an Opening Statement on behalf of all the four defendants and then Sr. Kate McDonald took the stand. The 80-year old nun began by reading the “Commitment to Practice Nonviolence” statement that is read every Wednesday morning at the beginning of the circle of sharing time during the vigil by the driveway entrance to Alliant Techsystems. She described how she and 20-30 others come every week to call for the end of the production of indiscriminate weapons, calling instead for “peace conversion with no loss of jobs”. She talked about her present literacy teaching work with immigrants and why she felt the need to walk up the driveway on that October morning in an attempt to talk with the CEO of Minnesota’s largest weapons manufacturer.

Geri Eikaas, a 71-year old grandmother who joined the weekly vigil two years ago as the company was moving to Eden Prairie from Edina, took the stand next. She talked about her long involvement with Amnesty International in working to free political prisoners and prisoners of conscience. Recounting how that world-wide movement was sparked by the efforts of one man, Englishman Peter Banenson, who wanted to protest an unjust imprisonment of two students he had never met before who were given a 7-year prison sentence for “toasting freedom” in Portugal, Ms. Eikaas stated that individuals can do great, wonderful things. While she continues to write letters on behalf of political prisoners half a world away, she also wanted to personally address what was happening in her own backyard. On the witness stand she looked at a newspaper photo from 2004 of two Afghanis sitting on a wooden bench at a Red Cross center in Kabul. Both had lost a leg to Soviet landmines that had probably been planted in 1979. Those victims, she said, were part of the Soviet legacy. Noting Alliant’s manufacture of landmines, cluster bombs, and depleted uranium munitions, she said she didn’t want more victims as America’s legacy in that same nation. That is why she felt compelled to act.

Noting ATK’s claim that “If our American men & women are sent in harms way, we want to see them protected and we take that very seriously.” quoting Rod Bitz, one of their public relations staff, Geri went on to describe another spokesman for ATK’s ammunition division announcing their plan to “go after international business to offset any slump in our business with the U.S. Army.” Showing that ATK is now selling AK-47 bullets to Afghanistan, while also noting the estimate that about 1/3 of all material given to the Afghani Government ends up on the black market, she wryly asked, “How long do you think it will be before these same munitions are used on our American soldiers?” She ended with a sad question: “Who profits? Who Dies?”

The Judge was seen taking notes and was obviously engaged with the testimony. He paged through the 32-page document, Employee Liabilities of Weapons Manufacturers Under International Law, which the group had carried with them to give to the CEO; now the Judge had a copy, marked Exhibit 1 after it was put into evidence for the case. As Ms. Eikaas finished, he started to ask a question about some of these weapons but then said he’d wait to hear the rest of the testimony because he felt it might answer some of the questions he had. With that, he called another 71-year old defendant to the witness stand.

Roger Cuthbertson often flies one of his colorful kites on days when the wind is right during the vigil. One of the kites he likes to fly over the parking ramp in front of ATK’s entrance reads “PU DU” referencing his personal disgust and outrage over the manufacture, sale, and use of depleted uranium weapons. Roger described in greater detail how depleted uranium weapons and cluster bombs work in battle and continue to kill, maim, and cause serious health issues, primarily to civilians, long after a war has ended. His description of these weapons confirmed how indiscriminate they are in affecting not just other enemy combatants but also our own soldiers and civilians.

Mr. Cuthbertson told the court he had been a public school teacher for 32 years after serving two years in the Philippines as a Peace Corps Volunteer at its very beginning during President Kennedy’s Administration. He said, “I guess you could say that I have been a person interested in peace and justice and active citizenship, for about 50 years. I have been protesting against weapons production even before Alliant Tech was formed out of its parent company, Honeywell.”

After speaking at length about some of ATK’s indiscriminate weapons, Cuthbertson concluded, referencing the arrest took place during a special vigil honoring Mahatma Gandhi’s 140th birthday, “What was resonating in my mind on Oct 2, 2009 when I tried to visit ATK was Gandhi’s statement, “Whatever you do may seem insignificant to you, but it is most important that you do it.” I read this statement out loud to my friends gathered at ATK before our action. I did do something that day. What I did was not violent or threatening in any way. I did not hurt any one. I am not trying to evade the consequences of my action. I do not feel guilty of any committing any offense. I did not destroy property. I thought long and hard about my action before taking it. I made sure I was reasonably well informed. I thought of my children and my grand children and the kind of world I want for them and for the millions of children like them around the world. Some people were a little bit inconvenienced by my action, but that is all the harm that was done. What I did is to demand a chance to talk to the decision makers at Alliant Tech about their immoral, illegal activities. What ATK is doing is more than inconvenience. It is producing large scale violence and death for profit.”

It was shortly after 10 o’clock when I took the witness chair. I’m always a little nervous or anxious every time I’m called to testify although it seemed easier this time without the awkward position of having the Judge seated on one side of you and the jury on the other side. This time it was only the Judge, Court Reporter, the Court Clerk, and many friends in the audience section of the courtroom. Fortunately my wife had the day off from work and was able to be there in support. Besides a copy of what I had to say, I also carried photos, a letter, and a collection of other documents I carried on the day of my arrest which I hoped could be placed into evidence. Juggling all those things and trying to remember to pour a glass of water for my parched throat added to my own personal drama.

I described a little about myself and how a semester abroad in college sparked my interest in international law. My commitment to peacemaking saw its genesis when I had to register for the Draft during the height of the Vietnam War. Quoting what is known as “the supremacy clause” of the US Constitution, I then read brief excerpts from Treaties signed by our federal government that now are considered (according to the Constitution –if not most US Judges) “the supreme law of the land.” I read from The Hague and Geneva Conventions, the CCW Treaty of 1980, the Treaty establishing the Nuremberg Tribunals and the Nuremberg Principles. All of this to the effect of highlighting the prohibition in international law of “indiscriminate weapons.”

I recounted my journey to Iraq just prior to the start of this present war as part of the Iraq Peace Team. Showing photos of a Pediatric Cancer doctor and two of his patients, I shared what he told me about the dramatic rise of cancers in the area where depleted uranium was used in the 1991 War. I showed photos of myself and Iraqis in the area called “the Highway of Death” to see some of the destruction wrought by depleted uranium weapons in that first war. Showing an additional photo taken the day of the arrest of a new Iraqi friend, I described the Sister City visit of Dr. Najim Askouri, an Iraqi nuclear physicist, to Minneapolis in the two weeks prior to October 2 and how the letter I carried with me that day told ATK’s CEO about the Iraqi delegate’s deep concern and anger at the contamination of their country by dU weapons make by his company.

I concluded my testimony by describing how the International Committee of the Red Cross, charged by the United Nations with promulgation and promotion of the Laws of War, calls us to “sensitize public opinion” and use the national courts and the media to help implement it. That is one reason we think raising these concerns within the Judicial Branch of the government is necessary to help stop the scourge of these already illegal weapons. I ended by reciting the words to the song we sing each week as we gather for the vigil:

Who will speak if we don’t?
Who will speak if we don’t?
Who will speak so their voice will be heard?
Who will speak if we don’t?

We were in court to try to give voice to those thousands victims of war – especially the children who are disproportionately crippled, maimed, sickened, and killed by these indiscriminate weapons.

Our testimony had taken about 90 minutes. The Judge announced a recess so the Court Reporter could have a break and he said it would be a longer recess so he had time to consider written memoranda we gave him which better described the case law basis for our “claim of right” defense. When the Court resumed, Geri Eikaas gave a Closing Argument and then we awaited a response from Judge Peter Cahill.

Judge Cahill told us he was a Public Defender, a private criminal defense lawyer, a city prosecutor, and a county prosecutor before becoming a judge. He said he was curious about what we would have to say in our defense and then remarked, “I found a group of people who were very sincere, very compassionate, and I have to give you credit for one thing I don’t always see among protesters: and that is humility. There is not an arrogance about your message, there is more a plea for, almost a desperation, to hear of the injuries of others as you try to stop the violence you see around the world. That’s refreshing. I think your actions are consistent with the highest standards of the traditions of civil disobedience.”

He went on to say, “With all of you out-ranking me in age, you are the kind of people I want to be like when I grow older. Your message is serious and your message is compelling, as I said. The information you provided was very educational to me and worth my time.” …

“You may be right that depleted uranium munitions may violate international law. Cluster bombs might violate international law. But that’s not why we are here today. And to be honest, I think it is way above my pay grade as a State Trial Court Judge to decide those weighty issues of international law. I’m here because we have a trespass case. And this case demonstrates the tension that exists between property rights and what we hold to be the most sacred rights, the Bill of Rights, the First Amendment rights to freedom of expression.”

The Judge said he couldn’t speculate how a jury might have decided the case. He did admit, “If your claim of right, based on international law, is sincere and in good faith, it would amount to a defense.” Because of the disposition we had already agreed upon in choosing to accept a Hearing in lieu of a jury trial, the Judge did not have to determine our guilt or innocence. It seemed, at least to this defendant, that he was relieved that we had already decided that matter.

Then he told us, “I am imposing $1 in court costs – or, by your conscience, one hour of community service – which can’t include protest activity at Alliant Techsystems. I would encourage you to consider devoting time, maybe your hour, to Gillette Children’s Hospital.” He went on to tell us that his now deceased older sister had suffered from polio all her life and what wonderful care she had received at the local Children’s hospital. He sensed our own compassion and hoped we could channel some of it toward local children like he had received on behalf of his sister. I could tell we had connected on a human level. It was no longer an authority figure looking down at some criminals from the bench but rather fellow citizens wanting to make our community a better place for everyone.

It wasn’t just the sensitivity of the sentence imposed. It was the tone and demeanor of the Judge in the Courtroom that gave me the impression that I really had been heard. What a complete difference between those two Courtroom experiences, one on the east side of the Mississippi, the other on the west. I want a justice tempered by mercy, informed by compassion – calling us to a community that embraces those marginalized and too often victimized in the process. My morning in Courtroom 753 on Friday April 23 was a sign of hope that at least one Judge is ready to listen.