Oct. 31, 1996: Four of the five Katuah gathering defendants found
"Guilty as charged" in the first phase of the case.
The case of United States v. Spirit Owl, John Johnson, Uncle
Bill, Laughing Man and Stephen Wing-- accused of being "leaders" of
the 1996 Katuah Summer Solstice gathering-- began with a hearing
about the facts of the case, with constitutional issues scheduled
afterward. Sean Devereaux, a local attorney, represented Gallagher
and was appointed by the court (at our request) to represent the
three who qualified. Brian Michaels of Eugene OR, a longtime
gathering participant and civil rights attorney, represented Wing.
Tues. Oct. 29: First we heard testimony from Wilt Stribling,
LEO of the district where the gathering took place. Then we watched
the video he took before, during and after the gathering, including
the evening the officers came to cite the "leaders" (June 17). Like
an honest cop should, he took care to document his own muddy
tiretracks up our main trail to the site. His testimony showed the
gathering attempting to comply with all his requests, moving a
tarp, taking down a tent etc.-- all except for signing an
application for a permit when the number allegedly reached 75. It
also showed the lengths the officers went to, hiding in the woods,
using binoculars etc., to keep a daily count. The defense asked
Stribling if he was aware that other people, such as bear hunters,
held regular gatherings of a similar size in his district. He was
not.
Next we watched a Forest Service training video about
enforcing the new regs, which differed in several respects (none
considered "relevant," of course) from the way it was enforced in
Pisgah Forest. Finally we saw a civilian video which covered the
events of June 17 at a little greater length, plus a conversation
between North Carolina chief LEO Malcolm Jowers and a
Congressperson's aide. Jowers states on the tape that these
regulations were written in direct response to losing the '88 Texas
case.
Wed. Oct. 30: We heard testimony from Frank Roth, the regular
Ranger in charge of the area of the gathering; a county sheriff's
deputy on the National Forest detail; and NC's head technical
advisor on special use permits testified. For the first time we
found out that a permit had actually been drafted in anticipation
of a signed application. After cross-examination, the prosecution
rested. Devereaux moved for aquittal on the basis of the testimony
so far, which was denied. Michaels then took a turn, and the
constitutional issues began to come into play.
The magistrate, the Honorable Max Cogburn, while sympathetic
to the gravity of these issues, stated that the regulations
appeared constitutional to him, that the procedures used in Pisgah
Forest appeared proper to him, and that refusing to sign a permit
appeared to him a matter of form rather than substance. However, he
said the same thing about the FS's insistence on a signature.
In a surprise move, the prosecution moved to drop the case
against Stephen Wing-- apparently in hopes of removing Michaels
from the case. No one objected. Michaels, however, was allowed to
continue as co-counsel; the magistrate made a point of
complimenting him on his arguments several times. "Always happy to
hear what Mr. Michaels has to say," he said once.
On the third day the remaining defendants testified. All four
did a fine job on the stand and earned a collective compliment from
the magistrate as well. Wing followed. Michaels' final question to
him was rather broad: "Is there anything you want to add?" The
magistrate overruled an objection and heard him out. The defense
then presented a local Hot Springs man who testified to the many
groups of 75 or more who use the National Forest in Roth &
Stribling's district without permits, including the notorious bear-
hunters. At one point the magistrate felt moved to lecture the
prosecutor about how cowardly modern bear-hunting is. Then a
wildlife biologist who was called in to survey the damage to the
gathering site testified that it was minimal. Of course, the
environmental impact of the gathering-- and the fact that it went
away completely after cleanup-- was ruled totally irrelevant to the
case.
The defense next called its secret weapon: secret because we
didn't even know it existed until Ray Johns, the technical expert
on permits, mentioned the draft permit he had prepared "just in
case." Michaels called Johns back to the stand and had him read a
few clauses of the "contract." These included holding the permit-
signer 100% liable for everything that happens at the event-- even
though the regulation itself says the signer is an "agent" who
bears no legal responsibility; holding the government exempt from
any liability at all; and revoking the permit because of
"objectionable conduct" or simply at the "discretion" of the
Rangers. All of this will hopefully help to prove in the next phase
of the case that the permit itself is unconstitutional, and
therefore a signature on an application is moot.
The prosecution tied up its case by contending that the
testimony of each defendant amounted to a "confession" that they
knew about the regulation and broke it anyway-- an alleged case of
"civil disobedience." The defense countered with a brilliant series
of arguments that the prosecution's case was never proven "beyond
a reasonable doubt." The key points were the lack of intent to
commit a crime, the total lack of any documentary evidence
whatsoever that 75 people were gathered, and the fact that three of
the defendants were picked for exercising their constitutional
rights-- Johnson for writing down the officers' names, Uncle Bill
and Laughing Man for speaking with them-- and Spirit Owl, the
fourth, simply because he lived nearby and was first to be
questioned about the gathering by Stribling.
These arguments proved the defense's case beyond even the
shadow of a reasonable doubt. Cogburn seemed to deeply regret
having to ignore that fact in his ruling of "guilty as charged."
Evidently he was unable to convince his direct superior, the
district judge, that the facts of the case should overrule the
political consequences of an aquittal (though we got the sense he
tried). The district judge is notoriously conservative, so that's
no surprise.
Somewhat delirious with victory, prosecutor Les Ascik invoked
the spirits of Thoreau and St. Thomas Aquinas in demanding a fine
of $500 apiece, for the sake of completing the "dignity" of their
"civil disobedience." The magistrate imposed a $50 fine or 8 hours
of community service for the Hot Springs Ranger office, plus a $10
fee. When the Rangers objected that they had nothing for the
defendants to do, Cogburn said in that case the $10 fee would be
enough. Most likely, they'll come up with something if any of the
defendants chooses community service.
But the case still may be thrown out when the constitutional
arguments are heard. This will take the form not of another
hearing, but a series of legal briefs to the magistrate. The
attorneys on both sides have 2 weeks to get their briefs together.
If we lose that phase as well, the defendants still can file an
appeal to the 4th Circuit Court in Richmond, VA, which must be
adjudicated before the sentencing-- and the legal precedent set by
this case-- takes effect. Stay tuned.