Day 4 of Frac Sand Protest Trial - Part 1

Putting Our Fate Into The Hands Of The Jurors by Steve Clemens. Feb 6, 2014
Day 4 of Winona Frac Sand Protest Trial

At 9 AM the jury was seated and defense witnesses continued their testimony. Veteran activist and Catholic Worker farmer, Mike Miles was the thirteenth defendant to take the stand. With a degree in Zoology and a Masters in Youth Ministry, Mike told us the premise of one of his seminary courses was that one cannot know God unless you are doing justice. He said he has found himself "walking up driveways I shouldn't have - because of my commitment to nonviolence.” He knew if he got arrested he would have his "day in court and hopefully be able to tell the truth, the whole truth, to a jury serving as the conscience of the community.” However, the Judge quickly told the jury to completely disregard Mike's statement that he felt confident the morning he walked on to the frac sand loading site at the Winona port because he had been acquitted before by a jury for doing a very similar thing under a Claim of Right defense. When asked by defense attorney McCluer why he stayed and risked arrest after being asked to leave by a police officer, Miles said because of the urgency of this issue: how frac sand is used to extract more oil and gas out of the earth. "We must do everything within our power [to try to prevent or mitigate climate change ]", he responded. When asked if walking on the property was the only recourse left, Miles cheerfully said, "No. There are many arrows in the quiver of nonviolence" and he has used a variety in his long history of activism.

Mike Abdoo became the last defendant to testify after a discussion the previous evening about our lawyer's desire to keep our testimony brief so the jurors could get the case before noon. He is a recent member of the Lake City Catholic Worker after having been a Winona Worker previously. In that role, he "attended numerous public hearings, took part in public protests, wrote letters”, and other myriad activities over 1 1/2 years trying to stop the frac sand industry. He described sand on the sidewalks, sand coming in windows, clogging air conditioner filters as the mining of silica sand exploded in the area about two years ago. His wife is now expecting their first child and "she drinks out of a well - that's terrifying" when recognizing the threats to clean water that this short-term profit industry can cause. He wanted to do "whatever we could do" to stop this.

The defense rested by 9:35 and the jury was excused while the judge and attorneys discussed his jury instructions. Our lawyer requested a broader instruction on Claim of Right, suggesting Hennepin County's Judge Jack Nordby's instructions but Judge Jeffrey Thompson ultimately disagreed. He said as judge he was trying to keep the issue focused on our actions rather than the content of our beliefs. He described how he marched in protest during the Vietnam War after the invasion of Cambodia while a student at Carleton College. But here in this court, we need to be "content neutral" in deciding this case. We need a standard appropriate for any kind of protest. He went on to list a variety of protests which have come before courts including land mines, the people from Westboro Baptist Church, the Klu Klux Klan, abortion, ... citing several cases he has read on appeal.

After denying an expansive view of Claim of Right, he also denied McCluer's request for an instruction on a necessity defense saying that the action taken must directly address the harm caused and the danger must be imminent. In this case he felt defendants still had legal remedies. "Democracy is a messy process. Over time, over a long period of time, maybe you can change people's minds - if you are lucky. But this doesn't mean you can break the law. It is a difficult process to change peoples' mind but the law doesn't allow you to break the law to do so. Civil disobedience means you break the law and take the consequences." He then quoted a favorite TV crime-fighter, Baretta, saying, "Don't do the crime if you can't do the time."

When the jury returned, the Prosecutor said he would not call any rebuttal witnesses. So he was asked if he wished to make his closing arguments. He gave "the State's view", saying even "polite" persons cannot break the law. "Just because the defendants were peaceful doesn't mean they can break the law. The words "frac", "sand", or "silica" won't be found in the Judge's instructions. Trespass is the crime, not protesting. These people made a conscious decision to break the law. This was civil disobedience, a planned event. A deliberate act. Purposely breaking the law. Their strong feelings turned into a criminal act. I urge you to follow the law in this case. They [the defendants] should be held responsible for that.”

Richmond McCluer rose to give the closing for our defense. He asked the Judge for use of the courtroom easel so he could draw a crude "thermometer" with a vertical line with 0% on the bottom, a 50/50 line in the middle, and 100% at the top. His defense asks a clear question: "is it [the case] proven by the State? Every element? The police cannot convict them of a single crime. Even the Judge can't unless the defendants waive their right to a jury trial. Only the jury can do that.

On his diagram he started speaking and writing words as he progressed up from zero to 100. “Hunch”, “suspicion”, “strong suspicion”, “probable cause”. Above the 50/50 line in the middle he continued with “preponderance”, “clear and convincing”. At the very top, by 100% he wrote "certainty". Just below that level, he said and wrote "proof beyond a reasonable doubt." He proceeded to inform the jury that in a civil trial 51%, anything over 50%, “preponderance”, is enough to decide a case. But not in criminal cases. “No one can be 100% certain but we do ask for proof beyond a reasonable doubt."

"Some defendants told you they did it [trespassed] to prevent a greater harm. Some said they had no choice [after trying other legal means]. Some said they believed they had a Claim of Right. Some simply did not have the charges against them proved. The defendants acted with the knowledge that only the community can convict them. It is the conscience of the community and it has given the responsibility to you [the jury]." He illustrated his point with the story of two dogs in Winona, concluding, "What do 99% of people do when they see that poor dog outside in the freezing cold? There are a very rare few who cannot sit idly by. These people [pointing to the defendants] could not sit idle and I'm honored to represent them. I'm asking you to do justice."
Prosecutor Flaherty used his rebuttal time to tell his jury that “any fact can be proved by direct or circumstantial evidence.” After describing the latter, he said, “They [the police] did a good enough job in this case. … When you do an act, there are consequences. They made a conscious choice to protest and break the law or protest and not break a law. It is not about beliefs but what you did. Law punishes you not for what you believe but what you did. This case is about deliberate violation of the law and you should hold them accountable.
The jury instructions were given at 11:35 and 20 minutes later they left the courtroom to begin deliberations.

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