Editor's Note: Many thanks to Ralph Hutchison, of the Oak Ridge Environmental Peace Alliance (OREPA), for this detailed account of yesterday's sentencing hearing for the Transform Now Plowshares defendants - Greg, Megan and Michael. The proceedings ended prematurely due to weather conditions, and will be reconvene on February 18th. You can keep up with Transform Now Plowshares at http://transformnowplowshares.wordpress.com/.
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The sentencing hearing of Michael Walli, Greg Boertje-Obed and Megan Rice was interrupted by wintry weather—some might say providentially. Judge Amul Thapar announced at 1:15 that the federal courthouse was closing at 2:30pm because the accumulating snow promised to make travel treacherous. After a brief consultation among the attorneys it was decided they could not conclude the sentencing process by 2:30, so the Judge suspended the hearing; it is currently scheduled to resume February 18th at 9:00am in Knoxville.
The courtroom was full of supporters, and a second courtroom was pressed into service; that room filled and there were reports of people sitting on the floor to view the proceedings on a big-screen TV.
At 9:00am, the hearing opened with the judge hearing arguments about the amount of restitution that would be required of Megan, Greg and Michael. After hearing testimony from a B&W Y12 official, and a detailed cross examination, the judge heard brief arguments, overruled all defense objections, and set restitution at $52,953.00; he waived interest since the defendants were not in a position to pay it off immediately. How much the final assessment might actually be has yet to be determined—no one in the court could say for certain whether the government had, in fact, reimbursed B&W Y12 or Wackenhut for the items billed—if there was no reimbursement, the government can not claim restitution from the TNP three.
After a brief recess, court resumed with consideration of objections to the Presentencing Reports; the judge quickly sustained the defense's objection to the use of the word "maliciously" in the charge against Greg, Michael and Megan. There was a detailed discussion of whether or not the defendants had accepted responsibility for their actions. As in the trial, legal language bears only scant resemblance to common usage of words—accepting responsibility means pleading guilty and not putting the government to the trouble of a trial.
Assistant District Attorney Jeff Theodore used the occasion to go on a mini-rant about Ramsey Clark, from US Attorney General who testified in a pre-trial motions hearing in April. "On this issue, he has no credibility," Theodore said, ignoring Ramsey's own testimony that he was the AG when the Nuclear Nonproliferation Treaty was signed. "He has represented just about every nefarious person out there," Theodore said, "Nazi war criminals, Saddam Hussein…he talked about war criminality at Y12!"
The judge cut him off. Francis Lloyd rose to address the record. Describing himself as a lawyer whose heroes include Clarence Darrow, he said no person should be faulted for taking any case. The judge tried to deflect Francis by reinterpreting Theodore's statements in a creatively favorable light.
The judge then danced around Francis' assertions that Megan, Michael and Greg, by submitting to arrest and admitting the particulars of their case amounted to accepting responsibility. "When you argue every element at every point, you're not accepting responsibility. You're asking the court to put a square peg in a round hole." The judge found his metaphor compelling and repeated it later. "I don't believe the defendants are contrite."
Francis pointed out that, in the history of law, it was only by repeatedly coming back to court with arguments again and again that bad law like Plessy v. Ferguson was overturned. "I get it," said the Judge.
The judge eventually ruled the TNP trio would not be given downward departures for acceptance of responsibility.
In the ensuing discussion about various cases and how they were interpreted, Judge Thapar in every instance chose the view most favorable to the prosecution, denying the defendants any benefit of the doubt, and stepping in to help the prosecution when it stumbled.
One issue raised by Greg Boertje-Obed was whether or not a nonviolent civil resistance action was "outside the heartland" of the sabotage law. The question is critical because circuit courts had ruled that if a law was being applied outside the primary purpose intended by Congress, "outside the heartland," the judge could take that into consideration at sentencing. Here's where it got surreal.
The prosecution argued, and the judge agreed, that since these kinds of cases—anti-nuclear actions—are the only kinds of cases where the law is being used at all, they must be the "heartland." Thapar said, "Congress and the [Sentencing Guideline] Commission has had plenty of time to change it if it doesn't like it." But in two of the three cases where the law was applied to anti-nuclear protesters, judges found at sentencing that it was "outside the heartland."
After some back and forth, the judge said he would not make a final decision at the moment, but would take it up during the discussion on reasons for variances.
The final point argued was about the defendants' "civic, charitable, public service," which can be taken into account. "But it has to be truly exceptional," said the judge, noting that for a billionaire to give millions to charity, it's not such a big deal. The fact that Michael, Greg and Megan have devoted their entire lives to civic, charitable public service did not seem to strike the judge as truly exceptional, but he allowed it could be taken up later, under "3553A factors."
It was 11:45, and Kathy Boylan took the stand. It was established that she has known Michael Walli for more than 20 years, sharing living space at the Dorothy Day Catholic Worker in Washington, DC for most of that time, where people are "committed to looking at the suffering of the poor, to alleviate that suffering, to eliminate violence, and to work for peace."
Chris Irwin, Michael's attorney, asked Kathy to tell the court who Dorothy Day was and she provided a brief, succinct description of Dorothy's coming to terms with poverty and suffering by working to change conditions that created poverty and suffering. "Dorothy and Peter Maurin wanted to change society to serve the ideals of the kingdom of God," said Kathy.
"And if Michael were released, would you be prepared to help him reintegrate into society?" asked Chris. "We'd like to do it immediately," Kathy said instantly.
Chris: Is there anything else you'd like to tell the court?
Kathy: Michael is a beloved member of our community and a servant of God. Every morning, we walk down the street to pray with our friends at the Assissi house. They sent a letter I would like to read.
The letter explained that Michael joined in prayer every morning, and that was how they had come to know him. "He is an unwavering example of active nonviolence, generous, kind, helping in many ways, whether it is picking up litter or working in the garden. He is always willing to help others, especially those with special needs. Michael is a man of deep faith; he is a role model, a living example of the gospel."
Chris: Does he get paid?
Kathy: We get a $20 stipend, plus $10 for Metro.
Kathy went on to describe Michael's 2013 Pax Christi Peacemaker Award and the certificate was entered in evidence. Kathy then told of a one of the women who shares the house with them, a woman from Ethiopia who is working hard to learn English. "One day she asked me, because she didn't understand this word, 'What is generosity?' The answer came to me immediately. I said, 'Michael Walli.' And she then described in her broken english the many ways Michael serves the community."
Kathy spoke also of a neighbor who, during a recent snow storm, came up the walk of the Dorothy Day house with a snow shovel. When he finished cleaning the walk he said, "I was just sitting inside watching the snow and I thought of how many years Mike Walli shoveled my walk, and other walks up and down the block, and I thought I should repay that since he was in jail."
Kathy described Michael as a teacher and a missionary for Jesus who commanded us to put down the sword. She quoted Dorothy Day on the atomic bomb—"If we wouldn't put people in gas chambers, why would we fling gas chambers at them?" I've learned these things because Michael has said them so often, she said. She spoke of Martin Luther King who condemned nuclear weapons in 1959 and declared that we face a choice between nonviolence and nonexistence. She quoted the Second Vatican Council: "Any act of war against cities is a crime against God and warrants universal condemnation," and Pope Paul VI who described Hiroshima as "a butchery of untold magnitude."
In closing Kathy drew the clear parallel between Michael Walli and the character Moshe the Beadle in the book Night. In the book Moshe is expelled from Hungary and goes to Poland where he witnesses the deportation of the Jews. Returning to Hungary, he seeks to warn everyone of the coming doom, but they won't listen. They thought him mad. They went to the gas chambers. We hope we would have cut the fences of the camps to free the prisoners, Kathy said. I am certain our Moshe, Michael Walli, would cut the fences. In our world, our gas chambers are nuclear weapons. They are ready for use. The whole world is the concentration camp, prepared for omnicidal weapons unless we transform this reality. Michael is trying to save our lives. Your life, Judge Thapar. Your life, Mr. Theodore. All our lives.
The courtroom was still for a long minute.
Jeff Theodore rose to cross exam, extracting information from Kathy, who gave it up easily. Yes, she has been a member of a Plowshares action group. Yes, she has engaged in protests. Yes, with these defendants. Yes, an action against nuclear submarines in Newport News—five times, she volunteered to save Theodore the trouble. Five times I have acted against these gas chambers without walls. He said "You don't believe what he did was wrong, do you?" She answered, "There is a higher law than the one in this court. There is the law of God." Theodore lowered the boom: "If he were to come back to be reintegrated into your community, would you try to discourage him from doing this kind of action again?" Kathy said she would not.
Chris Irwin rose to redirect, asking Kathy to described the basis for the Plowshares movement and she paraphrased the Isaiah passage. We should always take a hammer to the chains that enslave people, she said. We have fashioned these weapons with our hands, we can take them apart.
"One more question," said Irwin. "If Martin Luther King, Jr. were still alive, and he came to the Dorothy Day Catholic Worker house, would you discourage him from committing civil disobedience?"
"No!" said Kathy.
At 12:05 Mary Evelyn Tucker took the stand and Francis Lloyd walked her through her CV, and through the relationship between her family and Megan's. "How long have you know Megan Rice?" he asked. Mary Evelyn leaned into the microphone. "All my life," she said with a mixture of love and pride.
"Would you describe her personality?" Francis asked.
Mary Evelyn: She believes deeply and clearly. She is so far from disingenuous. When he (Prosecutor Theodore) used that word, it hit my heart. She is a sincere person of conviction, compassion and love. Her commitment to nonviolence—Gandhi, Mandela, Martin Luther King—there is a lineage of transformation. She has committed her life to this way of seeking transformation.
"To allow Megan to continue the work of her life, the work to alleviate suffering, outside the walls of a prison would be an invaluable gift to the world," said Mary Evelyn. "To keep her inside, the world would be diminished for lack of her work." Mary Evelyn then told the court that Megan has served as the caretake in her large family, often accompanying the older generation in its final journey. "With Aunt Megan by our side…" said one niece.
"I can't think of any good purpose that would be served by keeping her in jail. Megan is in a great lineage. Gandhi preached nonviolence; King practiced nonviolence; Mandela proclaimed nonviolence; and Megan invoked nonviolence. Through her work, we can imagine a future for our children, that we will not have to live under the long shadow of nuclear peril. Surely we want to be the generation that stood up for all of life and the future of the planet."
Jeff Theodore asked no questions.
Andy Anderson, Duluth Minnesota Veteran for Peace, age 87, took the stand. Bill Quigley began to ask him questions about his history. "Careful about those memory questions," Andy cautioned. The courtroom chuckled, appreciating the easing of tension. "I enlisted in the Navy in 1944," said Andy. "I served on a destroyer in the Pacific. Our group came under fire from suicide planes and torpedoes; our job was to go around rescuing sailors. I sat in the stern of the ship and held a friend in my arms when he died.…No more violence. I came home a different person, and I hope I've been a different person ever since."
Andy spoke of knowing Michael and Greg, of serving food to the homeless with Greg and being on the street with Michael. "There are terrific human beings," he said.
"If you were the judge, what do you think you would say," asked Bill Quigley.
"What is a crime? If I had my way—forgive them their mistakes and it's gone. The only way to be able to help people is to be free. I would ask the judge to consider the release of Michael and Greg so they can continue to serve the community in the manner they have been serving."
"Anything else?"
"These aren't harmful people. They are decent, warmhearted. Let 'em go.
John La Forge was the last defendant. He told the court he knew Mike and Greg through the Catholic Worker movement fro 20 and 16 years respectively. He talked of taking vegetables from the farm in Luck, Wisconsin to the kitchens and shelters in Duluth. He pointed out there work was unpaid.
"And how would you describe Michael Walli?" asked Bill Quigley.
"He is the quintessential Christian," said John. "He speaks in Biblical terms, about the burden the Bible places on us to do the right things. He will do it all. He is one of the unsung heroes, a man of all tasks, willing to do the ordinary work—changing beds, doing laundry, dishes.
Quigley: Would you described him as disingenuous?
LaForge: I was taken aback that the court said that. Maybe you qualified it. But there was a statement that they don't care about the law. For people who practice nonviolence, this kind of nonviolence, they care deeply about the law. So much of this is about US law.
John also described a recent trip to Germany where he stood with people there for a two-week demonstration against the Tornado jets that carry US B61 nuclear bombs. Everybody in Germany wants these bombs out of there, he said, the people, the government, all the political parties. But the United States is bringing these bombs back here, to be refurbished, here at Y12, and then sending them back to Germany.
Greg asked John to talk about his knowledge of the history of the bomb dropped on Hiroshima, and John replied by referencing the work of Gar Alperovitz and Robert Lifton who documented that Japan was suing for terms of surrender in July 1945, and who linked the decision to drop the bomb to Russia's expected entry into the Pacific theater on August 8, 1945. "After the bomb was dropped," said Greg, "we accepted the terms offered by Japan, and they were able to retain the emperor."
Jeff Theodore attempted to discredit John by getting him to recount his arrest history, which John cheerfully did. "You don't think there was anything wrong with what they did, do you?" asked Theodore. "I might have done a few things differently," allowed John.
"If they were released, you would encourage them to do it again, wouldn't you," said Theodore, unmindful of the lawyers' dictum about asking questions you don't know the answer to.
"I'll refer to Phil Berrigan," said John, "who said we should always discourage each other from doing Plowshares actions. If a person can be discouraged, they are not ready to do it."
"So you would try to prevent him?" said Theodore.
"Argumentatively, yes," answered John.
"But you would support him if he did it."
"Of course."
Greg asked John to describe his case before Judge Miles Lord; John explained the Judge used the case to condemn nuclear weapons production and the companies that made them before sentencing John and to six months unsupervised probation.
When John finished, the court took a 15 minute break. We returned at 1:15 to the judge's announcement that the courthouse would be closing at 2:30 due to the snow. The lawyers consulted calendars and the 18th of February came up as the next day all were free, so the sentencing hearing was suspended until then.
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