Occupation Project Court Case

Protesters guilty only of acting on their beliefs

voices — Mon, 10 Dec 2007 17:56:42 -0600

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Short Information Teaser

Two days of trial for 3 of the Salazar Seven ends with suspension of $50 fines and court costs

Excerpt

By Bill Johnson
Rocky Mountain News
December 7, 2007

They had, in the end, absolutely no chance for acquittal. You don’t need a fancy law degree hanging on the wall to see that.

Indeed, a Denver County Court jury of four women and two men on Thursday convicted all three after less than an hour of deliberation on charges of trespassing. They were quite obviously guilty.

What was even easier to figure after two days of trial was that trespassing, alone, was never once the sole point for Rafael Eggers, Sue Gomez or Merrill Carter.

Their trial before Judge Claudia J. Jordan, besides being great theater, was a sometimes-riveting lesson in the responsibility of the governed to hold accountable those elected to govern, and on the price that is paid when the effort falls on deaf ears.

Body

By Bill Johnson
Rocky Mountain News
December 7, 2007

They had, in the end, absolutely no chance for acquittal. You don’t need a fancy law degree hanging on the wall to see that.

Indeed, a Denver County Court jury of four women and two men on Thursday convicted all three after less than an hour of deliberation on charges of trespassing. They were quite obviously guilty.

What was even easier to figure after two days of trial was that trespassing, alone, was never once the sole point for Rafael Eggers, Sue Gomez or Merrill Carter.

A little background: All they wanted was a brief chat with U.S. Sen. Ken Salazar. Eggers, Gomez and Carter were among a group of people who had been after him for months to vote against continued funding of the Iraq War.

They had called him, e-mailed him and snail-mailed him, finally arranging a Feb. 1 meeting with Matt Cheroutes, then an aide to the senator.

The meeting, the calls and the mail, they would later contend, were met with yeah-yeah-we-get-it responses.

Another funding request from the Defense Department was approaching. Congress was in recess. They would press their case with the senator on Feb. 21. In his office.

They arrived, about a dozen of them, shortly after 1:30 p.m. The senator that day was touring the federal prison in Florence with then-U.S. Attorney General Alberto Gonzales. They would not leave, the group told his staff, until they met with him personally or at least spoke with him on the telephone.

So they sat on the floor and began reading the names of the Colorado military dead and the Iraqi dead, ringing a bell after each name.

At 5 p.m., the office’s closing time, seven were left. They were asked to leave. They refused. Police arrived at about 5:30 with handcuffs and leg shackles. Four would plead no contest or guilty.

Assistant City Attorney Robert F. Reynolds barely broke a sweat proving his case against the remaining three, each acknowledging on the stand that they had remained in the senator’s office past closing time.

Yet their intent, contended their lawyer, Walter Gerash, was not to trespass, “but to save lives.”

“These three stood for life over death, for communication over worrying about when a door is closed,” he told the jury.

“It is our duty, not just our right, to stop atrocities when we see them, and atrocities are occurring in Iraq,” testified a defiant Merrill Carter, 50.

As a young man, he testified, he had become fascinated by the Nuremberg trials that followed World War II, how many German citizens were convicted of war crimes for standing silent in the face of Nazi atrocities they witnessed. It informed who he is today, he said.

Sue Gomez is 61, soft-spoken, a former nurse who for 13 years worked as a church secretary and spent several years as a missionary to the poor in Mexico. She now works at the Catholic Worker homeless shelter in Denver.

She never blinked on the stand while explaining why 5 p.m. meant little to her.

“Violence does not stop violence,” she said. “Anything done to bring light to the immorality of this war was worth the risk of my being inconvenienced.”

Some people see things more clearly and a lot faster than most of us. The Salazar Seven, as they dubbed themselves - the seven who went to jail for actions on a day when Ken Salazar refused to even put in a call to his own office - are among them.

And it was almost surreal to hear them testify of peace and of attempting to save soldiers’ lives.

I realized that I have witnessed this war from both sides of it, on the roads, streets and hellholes of Iraq with soldiers, and in a courtroom with those fully convinced none of them should have ever stepped foot there.

Having witnessed the sacrifice made on both sides, all I honestly see is patriotism - the real kind in which men and women of courage risk everything they are in the name of a country they love.

Sue Gomez, Rafael Eggers and Merrill Carter, I have come to see, are just as heroic as Sgt. 1st Class Justin Vasquez, Lt. Mike Smith, Lt. Col. Ross Brown and Specialist Scott Ulbrich, men and women who put everything on the line in service to our freedoms.

In the end, perhaps even Judge Jordan saw this. She fined each of the three $50, immediately suspending all of it. She suspended court costs payments, too.

The true irony of Thursday’s trial?

Ken Salazar, right or wrong, is now a leading opponent of the Defense Department’s request for additional funding for the war in Iraq, believing there is no solution to an adventure that has cost nearly 4,000 American lives and untold thousands of Iraqi lives.

“For us, it is a victory of sorts,” Merrill Carter said after the trial. “I still wish he would take a stronger stance. People are still dying. But he is coming around.

“Maybe it proves democracy works, that it doesn’t just happen in a voting booth. You have to work at it. You have to be vigilant.”

Alaska Occupation Project: Necessity Defense Hearing

voices — Wed, 01 Aug 2007 14:32:35 -0500

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The Occupation Project

Short Information Teaser

Rob Mulford's summary of legal proceedings prior to trial

Excerpt

By Rob Mulford
Aug 1, 2007

Rob Mulford, member of Northstar Veterans For Peace in Fairbanks, Alaska, organized the Alaska Occupation Project in February and March.

Last Friday, July 27, 8:30 a.m. at the Fourth Judicial State Courthouse in Fairbanks I entered into oral argument with the District Attorney for my motion for the defense of necessity concerning my arrest, along with Don Muller of Sitka, on Feb. 20, 2007. We were charge with “criminal trespass II” for taking part in a direct action event, the Occupation Project, at the Fairbanks Alaska office of Senator Ted Stevens. We had remained in the office after the official closing time reading Iraqi and American war dead names after being ordered to leave.

Body

Rob Mulford, member of Northstar Veterans For Peace in Fairbanks, Alaska, organized the Alaska Occupation Project in February and March.

BACKGROUND

Alaska Statute 11.81.320 provides:

JUSTIFICATION: NECESSITY

(a) Conduct which would otherwise be an offense is justified by reason of necessity to the extent permitted by common law when

(1) neither this title nor any other statute defining the offense provides exemptions or defenses dealing with the justification of necessity in the specific situation involved; and

(2) a legislative intent to exclude the justification of necessity does not otherwise plainly appear.

(b) The justification specified in (a) of this section is an affirmative defense.

Case law such as Bird v. Anchorage, 787 P.2d 119, 120 (Alaska App.1990), Seibold v. State 959 P.2d 780 (Alaska App.,1998) and Allen v. State 123 P.3d 1106 (Alaska Ct. App. 2005) set a standard articulated in Allen v. State as:

To establish the defense of necessity, a defendant must show (1) that they committed the charged offense to prevent a significant evil, (2) that there was no adequate, reasonably available alternative to committing the offense, and (3) that the harm caused by the charged offense was not disproportionate to the harm the defendant avoided by breaking the law. Moreover, if the offense is a continuing one (such as a driving offense), the defendant must show (4) that they stopped violating the law as soon as the necessity ended.

Of the elements listed in the preceding paragraph, elements (1), (2), and (4) are judged from the perspective of a reasonable person in the defendant’s position. Thus, the question is what the defendant reasonably believed at the time, even if it later turns out that the defendants belief was partially or wholly mistaken.

THE HEARING

Although the hearing before Judge Raymond Funk – a Judge with a reputation for being a progressive and fair - was only 30 minutes in length and not totally successful it was a very dramatic.

The DA claimed and the Judge concurred that regardless of the legitimacy of my claim that the war is an illegal act of aggression; the criminality of the war was not to be on trial. This is in direct contradiction to Alaska case law (i.e. Cleveland vs. State of Alaska 123P.3d 1106) that states:

“The present position, which represents a merging of the privilege of crime prevention with the privilege of defending others, is that one may go to the defense of a stranger if that person is the innocent victim of an unlawful attack.”

And

“The new criminal code requires, for both self-defense and defense of others, that the defendant be responding to “what he reasonably believes to be the use of unlawful force.”

I replied that the criminality of the war is in fact an important element of the case because the war is an act of aggression as spelled out in international customary law (Nuremberg Principles) and Treaty Law ( U.N. Charter) and that the Judge was bound by the Constitution of the United States of America per Article 6 Sec. 2, the law of the State of Alaska not withstanding. I told the Judge that Treaty Law trumps the States trespass statute.

The DA also stated and Judge Funk concurred that alternatives to breaking the law were clearly reasonably available. At this time I challenged the Judge to state which alternatives were clearly available that would empower a citizen to stop a crime that was being committed in his name by those holding the highest positions of office in the most powerful country in the world.

Judge Funk replied that the law is very clear in that it allows for “lawful protest”. He said that we have the ballot box and that we could write letters but that we don’t get to interrupt the functioning of government offices. He stated that these are the legitimate avenues of redress and that they do not mean that we “get to win”.

At this point I vociferously interjected saying “Your Honor, I speak to you the person and the jurist. I respectfully request that you be a jurist and not an administrator”. I said that my actions were not in protest but attempts to use “direct action” as a means for stopping a crime being committed in my name by my government. I said that the decision to go to war was not made after considered debate in our legislative halls over its merits and problems but was made in the conference rooms of an oligarchy made up of energy and military industrialists, finance capitalists, and officers of the highest positions in the U.S. government so they could line their pockets with the profits made from the blood of American and Iraqi citizens. I said that Judge Funk’s assertion that the ballot and letters were reasonable lawful alternatives and that utilizing them did not mean that we “get to win” was ludicrous because I was attempting to stop a crime and not opposing some legitimate legislation that I disagreed with.

I said, “Your honor, if you will not allow me this defense convict me right now. It is not about me. I argue for the innocent victims of aggressive war, those dead, displaced, and living in fear”.

Alex Koponen, my legal advisor, addressed the DA and the Court saying that my case was distinguishable from the previous cases where the court had turned down the necessity defense. He cited the Cleveland vs. State case above, where anti-abortion protesters were denied the defense because the legislature and the courts had spoken beforehand on the legality of abortion. Alex stated that there is ample evidence and legal opinion to make the case that the war in actuality is illegal.

The DA, Joe Dallier, stated that according the most recent case law (Allen v. State) that the alternative of protesting outside the offices of the Federal Building was a clearly available adequate alternative. Judge Funk concurred.

Judge Funk then referred to me and I reiterated that it was my intention to stop a crime being committed in my name by my government. I said that the “leaders” of my country should be held accountable for the “Wild West” like situation of international lawlessness they have created but there is not much in the way of lawful remedy available when “leaders” like the Attorney General publicly state that the Geneva Conventions are quaint.

I said, “my country is committing crimes in my name I am complicit if I don’t do all I can, nonviolently, to stop it. My actions were not in protest but direct action attempts to pressure and nonviolently coerce members of congress into stopping funding for an illegal war. There are only a couple ways that we as citizens to end this illegal activity. One is to get congress to stop its financing. The other, as happened during the Vietnam War, is to get soldiers to lay down their arms and say ‘No More’. This second alternative may be the necessary next step.”

Judge Funk, as if totally missing the point above stated “You say that this is not about you but it is about you.” He asked me if I was offered the opportunity leave and to come back the following day to continuing the reading of names. I said that I was. He said that I then had a reasonable and adequate alternative and that I did not have the right to use the defense of necessity. I replied that if I did leave and come back the next day the act would be a mere protest to be added to the list of four years of protests and not at all adequate for stopping the supreme international crime. The Judge reiterated his position that I had clearly reasonable alternatives to breaking the law and that necessity did not apply.

Judge Funk is well known for volunteering his time to a local public radio station where he hosts the show “Funk Roots” and plays music that he gathers from around the world as well as American “roots music”. I took this as an appreciation of the value of all humanity and stated: “Your Honor, and I mean this with all do respect, I ask of you one favor. The next time that you take a vacation to some third world country to sample the fruits of their culture I wish that you would take the effort to look those people in the eye. Imagine their country attacked by a super power. Imagine maybe a million of their population dead from the bombing, from the poison of Depleted Uranium, their children suffering and dying from water borne diseases caused by the destruction of their sanitary infrastructure, imagine the malnutrition, the bombed out and under staffed and undersupplied hospitals. Imagine four million of them refugees and internally displaced, their children knowing only the fear of death from the violence of war. Your Honor, 3645 American servicemen and women have died as a result of this illegal war, 496 of them since Feb. 20. I ask only that you to be a jurist. Please be a jurist.” The Judge’s demeanor changed to one more solemn and thoughtful. It was not my sole intent to influence his decision by stating this but to plant a seed in the heart and mind of a decent man.

My legal advisor, Attorney Alex Koponen, pointed out the case the State cited (Hawaii v. Marley) as precedent was significantly different from my case in that the other case involved an action at a Honeywell facility to stop the manufacture of illegal weapons. This action could not have stopped the war whereas Senator Stevens almost surely could stop it by voting against funding it more and encouraging his colleagues to do the same.

It appeared that these pleas made some impact, and the judge said that there is still the possibility of accepting the necessity defense, but only if it is shown that “the facts of the case” - by which he meant only the events at Senator Steven’s office, rather than the facts proving the extent of the significant evil of Senator Stevens continuing to fund the Iraq war - were substantially different.

About 7 supporters came, but no media that we know. The trial date will be set at calendar call on August 17; we will work harder to get media to come. I will continue to press the case of the illegality and the evil of this war and the necessity to get Congress to stop funding it.

There will also be a hearing for my other outstanding case (March 13 Occupation of Congressman Don Young’s office) on the 16th of August.

Congratulations to all my friends who have been acquitted in court for their actions.

Wage Peace, Rob Mulford

Jail Time Ordered for Colorado Peace Activist for Overstaying her Welcome in Her Congresssman's Office, Urging an End to War

voices — Mon, 30 Jul 2007 01:45:14 -0500

Project

The Occupation Project

Short Information Teaser

Sentencing of long-time peace activist Carolyn Bninski

Excerpt

Rocky Mountain Peace and Justice Center ALERT
July 28, 2007

Related — Carolyn Bninski in her own words: A redress of grievances By Carolyn Bninski

[VCNV Note: Carolyn Bninski is an organizer with the Occupation Project in Colorado. After receiving word of three acquittals in Occupation Project trials, we received news that Carolyn received by far the harshest sentence to date. The judge sentenced Carolyn to 365 days in jail, with 330 days suspended. Carolyn will begin serving the remaining 35 days in August, with work release privileges. The judge will retain the right to return Carolyn to jail to serve the 330 days suspended should she engage in other “unlawful” activity. Don Muller and Rob Mulford of Alaska also received lengthy suspended jail sentences for their participation in the Occupation Project in Fairbanks, Alaska and each also served 7 days in jail. Let the examples of these social advocates serve as an invitation to each of us to deepen our own commitment to nonviolent civil disobedience and civil resistance to end the Iraq war.]

Before a packed courtroom yesterday, a municipal judge in Westminster, Colorado sentenced long-time peace activist Carolyn Bninski to 365 days in jail and a $1,000 fine for actions stemming from a March 8th, 2007 visit by her and others to Colorado Congressman Mark Udall’s office.

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Rocky Mountain Peace and Justice Center ALERT
July 28, 2007

Related — Carolyn Bninski in her own words: A redress of grievances By Carolyn Bninski

Congressman Udall (D-CO) - who represents Boulder, Colorado, and surrounding area - was not in the office that day, but citizens frustrated with his failure to represent the bulk of his constituents of that district who oppose the war wished to increase the number of people visiting his office to urge that he quit funding the war. Congressman Udall had cut back on town meetings over the last couple of years and had been less accessible himself to those wanting him to personally hear their message: get out of Iraq, bring the troops home and end the violence.

Ms. Bninski - after Congressman Udall’s office had been visited by a steady stream of over 60 citizens on the morning of March 8, 2007, who all had urged that the elected representative take action to end the war - was asked by a staffer to leave the office after only five or ten minutes into the group’s presentation. She and her companions had been sitting on the floor of the office, taking turns reading some of the names of dead among a staggering toll of over 700,000 Iraqis and over 3,000 U.S. soldiers who have been killed in the U.S. war and occupation of Iraq. Bninski and the others all refused to leave and wished to continue reading names of the dead. Congressman Udall’s staff then called the Westminster police to have the citizens removed from the office. Bninski, one of Congressman Udall’s consitituents, was among those subsequently charged with unlawful assembly and trespass.

At the start of yesterday’s day-long trial over the incident, prospective jurors were asked about their positions on the Iraq war during questioning as to their ability to be fair and impartial in the case. One juror had voiced his strong objections to Cindy Sheehan and her style of anti-war activism. Another was dismissed and replaced with an alternate juror after voicing her opinion that Iraq was an illegal war. The prosecution presented only two witnesses - both members of Congressman Udall’s staff - who described the events of March 8th from their perspective. Both acknowledged that all the citizens’ actions that day had been nonviolent and peaceful, though they said it had distracted them and had become an inconvenience for them. For several weeks prior, constituents had been coming to the office, some staying all day. One described Ms. Bninksi as “polite and appropriate” in her actions on March 8th. Both testified that their intent was not to have Ms. Bninski charged with a crime, just removed from the office. Congressman Udall’s Chief of staff, Alan Salazar, was not called by the prosecution to testify, though he had been key to previous meetings with Ms. Bninski and others, and told them they would be arrested if they continued coming in Congressman Udall’s office and not leaving after a few minutes.

Ms. Bninski opted to testify in her own defense, using the witness stand to educate the jurors, judge and all assembled in the courtroom about the scale of grief and losses being endured in Iraq and the devastation of the entire country and its culture, as well as impacts here at home with the increasing number of so many young soldiers becoming casualties, and the grief suffered by their families. Over 67% of U.S. citizens now oppose the war in Iraq, Ms. Bninski testified, but Congressman Udall continues to fund the war and ignore the bulk of his constituents who oppose his position as their representative.

After hearing the case, the six jurors deliberated for twenty minutes before rendering their decision. They found Ms. Bninski innocent on the charge of unlawful assembly, but guilty of trespass for refusing to leave her Congressman’s office when asked. The City of Westminster, where Congressman Udall’s office is located, sought a jail sentence for Ms. Bninski, instead of community service. In responding to the prosecutor’s appeal that she serve jail time, she turned to look him in the eye and said that she’d accept whatever was ordered, and that whatever it would be would be insignificant compared to what the Iraqi people are enduring.

Associate Judge Randall J. Davis openly stewed prior to announcing his decision over Ms. Bninski’s fate, and said that his order had “nothing to do with the war in Iraq” but was about Ms. Bninski’s actions alone, though calling the event which led to her arrest “innocuous” and one which caused “no substantial disruption of Congressman Udall’s office.” He ordered that 330 days of her 365 jail term be suspended as well as half of the $1,000 fine. Ms. Bninski was given two weeks to prepare for her jail time and ordered to appear at 4:00 August 10th to the Adams County jail.

As she accepted her sentence, with no plans for appeal, Carolyn Bninski addressed the judge and read a quote from Martin Luther King, Jr.: “We must speak with all the humility that is appropriate to our limited vision, but we must speak….there is such a thing as being too late….Life often leaves us standing bare, naked, and dejected with lost opportunity….Over the bleached bones of numerous civilizations are written the pathetic words: ‘Too late.’”

Colorado: Woman gets jail for Udall protest

Jeff Leys — Sat, 28 Jul 2007 00:29:21 -0500

Short Information Teaser

Colorado Occupation Project activist sentenced to 30 days in jail.

Excerpt

By Bruce Finley
Denver Post Staff Writer
Article Last Updated: 07/27/2007 07:30:11 PM MDT

A war protester who occupied U.S. Rep. Mark Udall’s Colorado office and refused to leave was sentenced Friday to a month in jail.

A jury found Rocky Mountain Peace and Justice Center activist Carolyn Bninski, 57, guilty of trespassing but not-guilty of unlawful assembly.

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By Bruce Finley
Denver Post Staff Writer
Article Last Updated: 07/27/2007 07:30:11 PM MDT

A war protester who occupied U.S. Rep. Mark Udall’s Colorado office and refused to leave was sentenced Friday to a month in jail.

A jury found Rocky Mountain Peace and Justice Center activist Carolyn Bninski, 57, guilty of trespassing but not-guilty of unlawful assembly.

Bninski, 57, had rejected a plea deal of 60 days in jail to stand trial in Westminster municipal court.

“I don’t regret that I participated in this action. It’s a small thing to do, compared to the suffering of Iraqis,” said Bninski, who also must pay a $500 fine.

Bninski and four other protesters conducted a three-week in-office protest against Udall’s votes for continued Iraq war funding. When Udall staffers asked them to leave, they refused and were arrested March 8 by Westminster police for trespassing and unlawful assembly.

The others got $100 fines or community service, but prosecutors sought jail time for Bninski because she had been arrested several times before for civil disobedience.

Defense attorney David Harrison argued that Bninski had a constitutional right to assemble peacefully and ask elected representatives to redress grievances. Judge Randal Davis rejected a subpoena to have Udall testify.

Udall issued a statement Friday morning saying Bninski and others have a right to peacefully protest a cause of public importance but that their occupation “had the effect of interfering with the daily duties of my staff” and drew complaints from other building tenants. Police were called when the protesters refused to leave because “needs of other constituents…had to be respected,” said the statement from Udall, who in 2002 voted against authorization for the war itself.

“I hope that the court, in reaching a decision today, will take into account that Ms. Bninski did not cause any physical harm to my staff or damage any property while occupying my office,” Udall’s statement said.

“I believe she acted out of strong personal convictions on an issue that rightly concerns millions of Americans. As someone with a profound respect for the American tradition of dissent and free speech guaranteed by our constitution, I continue to believe that Ms. Bninski’s right to protest deserves recognition and protection.”

Peace activists in Colorado now are launching a new campaign to stop funding for the war in Iraq as Congress prepares to vote in September on a Bush administration request for another $145 billion.

Staff Writer Bruce Finley can be reached at 303.954.1700 or

Project

The Occupation Project