I Was Tried (and Acquitted) for Protesting the Iraq War
On Thursday, July 12, I filed into DC Superior Courtroom 221 along with my six co-defendants to hear my verdict in a case that could have landed me behind bars. We were apprehensive, given that the jury had deliberated less then one full day, but as the jury foreman spoke, his words flowed over us like cool rain on a hot summer day - "not guilty."
Not guilty! How often do anti-war protesters hear those words in a U.S. courtroom?
The trial was the result of a nonviolent action taken in the Hart Senate Office Building in Washington, D.C. on March 29, 2007 - the day the now Democratically-controlled Senate voted to continue funding the Iraq war. As part of the ongoing Occupation Project, the National Campaign for Nonviolent Resistance (NCNR) organized a presence in the Hart building atrium (a central courtyard) which consisted of more than 100 cardboard tombstones with pictures of American and Iraqi dead, accompanied by a reading of the names of the dead. Approximately 25-30 individuals participated, and the Capitol Police arrested seven of us.
Our ability to get a jury trial (as opposed to a judge only "bench trial") was almost an accident, a product of the particular charge in the case which, because it carried a possible six month jail sentence, allowed us a jury trial upon request. And as any activist who has ever gone through the process of a trial can tell you, if you get a chance to appeal to a jury of your peers, you go for it.
Under the expert tutelage and training of Mark Goldstone, chair of the Demonstration Support Committee of the Washington DC National Lawyer's Guild and an invaluable resource to those challenging the government in our nation's capitol, we trained extensively to go "pro se," or represent ourselves, during the trial. We wrote our own statements and practiced how to present opening and closing arguments, give direct testimony, cross-examine government witnesses and submit motions for acquittal, as well as getting an understanding of proper courtroom decorum. (The benefits of our judicial system notwithstanding, the judge still stands as a feudal lord over the courtroom, and nothing trashes your chances quicker than disrespecting the judge.)
A little more daunting was training on how to get our anti-war message to the jury. Prosecutors in the District of Columbia, who are used to such cases, will often file a motion in limine ("to limit") in order to prevent any information about the war, such as its illegality or death toll, from entering the trial proceedings. Even though our prosecutor did not offer such a motion in our case, we fully expected that he and the judge would shut us down whenever we talked about the war. They did not disappoint us in that regard, so learning how to insert small snippits of anti-war information throughout the trial, and being prepared to proceed when interrupted were also critical parts of our training. (As was figuring out just how far one could push the judge.) One favorite rhetorical tactic came during the opening statement, when co-defendant David Barrows announced to the jury that "this trial is not about an illegal and immoral war; this trial is not about the thousands of Americans and hundreds of thousands of Iraqis who have died in this warÃ¢â‚¬Â¦."
Then again, what is considered probative information ("proof") for or against a charge, as opposed to irrelevant or prejudicial information, can change during the course of a trial. We were surprised but generally delighted to find out a few days before the trial that the prosecution intended to introduce the YouTube video of our action as evidence. The prosecutor's goal was to prove that we were demonstrating, and the video did indeed show several minutes of our protestÃ¢â‚¬Â¦ which the jury then watched over and over and over again. (Once introduced by the prosecution, with our OK, we could use it as much as we wanted for our own purposes. You can view the video used during the trial here.) Another particularly sweet moment came when the prosecutors unfurled our 15 foot banner for the jury to read: "Another Year of War, How Many More Die?" Honestly, we couldn't have done it better ourselves.
We were also able to produce a few contradictions in police testimony during cross examination, as well as get them to corroborate certain elements of our defense, and our own direct testimony was powerful (and useful for introducing more information about the war). All in all, though, as the trial closed we were left clinging to our hopes for a hung jury: the possibility that even though we might be seen as guilty of the particular offense, some jury members would find the law and/or war itself so offensive that they would refuse to convict us. To our considerable surprise, the jury returned a verdict of "not guilty" for all seven defendants after only four and a half hours of deliberation.
Although the trial was at its heart about free speech, and particularly our ability to exercise this type of political speech in a public place, the Hart Senate Office Building atrium, the verdict turned, as they often do, on a relative technicality. While "demonstrations" per se are illegal in the Capitol buildings, along with picketing and parading, they are interpreted in case law through what is called "the tourist standard." The tourist standard states that such activities can only be deemed illegal if they are "more disruptive, in degree or number, than activities engaged in by tourists and others without police intervention." As you might imagine, there are all sorts of demonstrations, pickets, parades, gatherings, press conferences, receptions and equally loud and disruptive group activities going on everyday in capitol buildings - they are just not usually organized by those protesting government policy. Moments before our protest, for instance, a group of students from Hawaii were joyously signing native songs in the same atrium, a fact we brought up repeatedly during the trial.
Ultimately, the jury found us not guilty because the prosecution, which probably thought it had an open and shut case, was unable to prove beyond a reasonable doubt that we had in fact been more disruptive than an equivalent group of seven tourists "or others." They also questioned the meaning of "without police intervention," since it was clear from the video that the situation escalated in volume once the police moved in. The jurors we spoke to later - they are free to talk to anyone after the trial is over - said that there had actually been a majority ready to convict us for demonstrating illegally until they began discussing the tourist standard in earnest, and that their political views never came into play.
Or not, at least, that they were willing to readily admit. While their judgement was indeed a sound one based on the law, we knew that we had a very sympathetic jury. During the "voir dire" questioning - those are the questions asked of potential jurors by the judge to make sure they can view the case objectively - a full 16 of the 31 potential jurors interviewed answer "yes" to the following question: "Do you have such strong feelings about the war in Iraq that it would be difficult for you to be fair in judging this case?" Two of the 16 were dismissed by the judge, and a few others were struck by the prosecution (each side gets three "strikes"), but several still made their way onto the jury. (Including, among others, a reporter for Al Jazeera!) Those jurors who stayed to talk with us gave us winks and quiet thanks upon leaving.
And still later, one of the jurors tracked us down outside the courthouse and confided to our group that that there was no way he would have allowed us to be convicted. He was mighty glad for the tourist standard, which gave him and the others the legal basis to quickly find us not guilty, but he suggested he was prepared to maintain his position as long as necessary. (It also didn't hurt that it was Thursday afternoon, the trial having begun on Monday, since apparently nobody on the jury was keen on stretching deliberations into the weekend.)
Overall, we were thrilled by the verdict, and pleased that our action, a photo of which also appeared on the cover of the April 16, 2007 Congressional Quarterly Weekly, netted such positive results. We gave thanks to those nonviolent activists that came before us, as well as remembering all those who have lost their lives in the horrible tragedy in Iraq. We were acutely aware that we might not have received such a favorable jury or a "not guilty" verdict two or three years ago, and we pledged to redouble our efforts to end the war once our celebration was done.
Behind it all, though, we knew that none of this would ever have come to pass without our willingness to take risks in nonviolent action, and as I emerged from the courthouse a quote from Henry David Thoreau came to mind: "If the machine of government is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law."
May more and more of us be willing to challenge and break the law, until we can bring the illegal, immoral and unjust war in Iraq to an end.
With thanks to my co-defendants: Joy First, David Barrows, Malachy Kilbride, Eve Tetaz, Sam Crooks and Ellen Barfield.