A Bleaker House

A BLEAKER HOUSE

 

BLEAK HOUSE, the renowned novel by Charles Dickens, is about the exhaustive case of Jarndyce and Jarndyce, and is the author's skewering of the British legal system.  Dickens was both a law clerk and a litigant seeking to preserve his copyrights, so he knew something about courtrooms.

 

I and three other peace activists are going through our own Jarndyce and Jarndyce in Superior Court of the District of Columbia.  Our case started on Sept. 26, 2006 with our arrests during an antiwar protest near the U.S. Capitol.  And it is still alive, as we are scheduled for a show cause hearing on Aug. 30, 2010.

 

  After being convicted of "crossing a police line" or "unlawful assembly" in February or March, 2007, eleven defendants wrote to Rufus King III, the trial judge, informing him we would not pay $50 in court costs.  Our principal reason was that he unfairly found us guilty.

 

  Judge King's reaction came on May 11, 2007, when he held us in contempt for refusing his order.  He was prepared to jail us, but attorney advisor Mark Goldstone, a First Amendment expert, informed the judge the defendants should have the right to defend themselves at a trial.  After about 30 minutes in his chamber, King returned to the bench and agreed with Goldstone's legal analysis.  The case was then sent to Judge John Ramsey Johnson.

 

"Not to speak is to speak ... not to act is to act." -- Dietrich Bonhoeffer, hanged by the Nazis April 9, 1945

 

  The National Campaign for Nonviolent Resistance [NCNR] continues to organize actions aimed at ending U.S. military involvement overseas.  Four NCNR activists were arrested, for example, on Aug. 9, 2010 at the Pentagon.    Because of its experience, NCNR was approached by the Declaration of Peace to help organize mass actions on Sept. 26 and 27, 2006 in Washington, D.C.  

 

  On the 26^th, I was with the Pledge of Resistance-Baltimore affinity group which tried to take a commemorative coffin decorated with photographs of the dead and wounded in Iraq to the steps of the U.S. Capitol.  Sixteen of us were arrested when the police stopped us.  Others were arrested near the Russell Senate Office Building and inside the Hart Senate Office Building. Seventy-one anti-war activists were taken into custody.  

 

  The following day I joined the procession to the Rayburn House Office Building and carried a coffin with a friend.  We placed our coffin with others in the courtyard in front of the building, and were not arrested.  The 26 who were arrested engaged in a die-in around the coffins. 

 

 Some 50 people requested a trial, and all but one defendant were convicted in either February or March 2007.  During the February trial, I tried explaining I did the same thing each day.  So why was I arrested on the 26 th? King did not allow me to raise the issue, and in both trials sided with the police who argued it was necessary to arrest so that we did not disrupt Congress.  His decision was an affront to the Bill of Rights.  Granting more power to the police must be resisted, and eleven of us voiced that perspective in letters to King.

 

  While the contempt case was now with Judge Johnson, the convictions were appealed to the D.C. Court of Appeals.  During his time with the case, Johnson scheduled several status hearings, but the matter could not move forward until a decision was reached on the appeal.  As a veteran of the legal process, I was astonished as the government did not appear at these hearings.  Why was the contempt charge not dismissed?

 

 Goldstone handled the appeal.  But after we were held in contempt, I retained an attorney, as did Michelle Grise.  We both qualified as being indigent.  Before the appeals court ruled, the case was moved to a third judge.  Again every six months or so, there would be a status hearing.  This judge was ornery in contrast to Johnson who was amiable and allowed the defendants to speak in court.  The third judge nearly took my head off when I tried to explain something to him.  

 

 As the case wore on, some of the defendants paid the $50 fee.  And two of the defendants were removed from the case by the government, with no explanation given.  Again as there was no decision from the appeals court, the case was moved to a fourth judge, the very conservative Craig Iscoe.  

 

 Finally, the D. C. Court of Appeals heard oral arguments on Apr. 2, 2009 from pro se appellants Johnny Barber, from Bozeman, Montana, and me.  Using the Goldstone brief, we argued that the convictions should be overturned, as the U.S. Capitol Police pre-empted our First Amendment rights to petition the government. We urged the court to curb police powers, which proved to be excessive around the country during the Bush-Cheney administration.

 

Unfortunately, on July 30, 2009, Associate Judges Vanessa Ruiz and Noel Kramer and Senior Judge Michael Farrell rejected almost all arguments in a very poorly-reasoned decision. The convictions were upheld, though Ruiz dissented in the Rayburn unlawful assembly arrests.  Two of three judges rejected the argument made by the appellants that there must be a breach of peace element to be convicted of unlawful assembly. However, as Judge Ruiz pointed out in her dissent, the other judges misunderstood what happened at the Rayburn Building. The evidence showed that there was never an intent to block the entrance, and the actual main door to Rayburn was never blocked. 

 

 Reading the decision and the dissent, I was astonished how confused the judges were to what happened during the protests. And I was very disappointed that three Court of Appeals judges would support a police line on the presumption that the protesters may later engage in lawbreaking.    

 

  What is revealing about the decision is that it quotes liberally from the Capitol Police officers who testified during the trials.  Yet not one defendant who testified is quoted in the decision.  This suggests the Court of Appeals deferred to the testimony of the police officers and did not hold the testimony of the defendants in the same light.  What is particularly galling is that the government’s prosecutor was ill-prepared and somewhat ignorant of case law.  His argument was that police must be trusted to make the right decisions.  

 

 We believed we had strong arguments, so we petitioned the entire Court of Appeals to hear our case.  On Mar., 2, 2010 our petition was denied for an en banc hearing.  It was assumed Iscoe would now schedule a trial at an April 25 status hearing.  Instead, he adopted a grind-them-down strategy in an attempt to get the defendants to pay the fee. His strategy did work, as activists in Arizona, Michigan and Montana did pay. 

 Our lawyers filed a motion to dismiss with Iscoe on the grounds that crossing a police line is not a serious misdemeanor. It seems that in D.C., those convicted are not obligated to pay the court costs, unless the charge was a felony or a serious misdemeanor.  On July 9, Iscoe heard oral arguments, but it was clear he would rule against the motion to dismiss.  He also dismissed the earlier contempt charge and gave us until Aug. 13 to pay the court costs, now at $100.  

 

  Failure to pay meant we were obligated to attend an August 30 show-cause hearing. This seemed at variance to his earlier order that defendants did not have to attend hearings with a promise they would appear for trial. Michelle and I intend to appear, but Maria Allwine, who is the Green Party candidate for governor in Maryland, and Joan Nicholson from Pennsylvania will probably not appear. It remains unclear how he will handle their absence. 

 

 The judge’s ruling that we were convicted of a serious misdemeanor has been appealed.  So it is possible that the appeal will halt the contempt process once again.  Then again on Aug. 30, he may rule that two of us are in contempt and issue  warrants for the other two.  I will be prepared to be sent to the D.C. Jail, just in case Iscoe intends to proceed even though an appeal was filed.  I am assuming there would have to be a trial before being sent to jail.  But this case rivals Jarndyce and Jarndyce in complexity.  If I am sent to jail by the judge for refusal to pay, how long can I be confined?

 

 If there are any Charles Dickens wannabees interested in our legal morass, let me know.  It is much too early to predict when we can announce case closed.

 

Max Obuszewski is a Baltimore peace activist, who risks arrest with the Pledge of Resistance and the National Campaign for Nonviolent Resistance.  He can be reached at 410-366-1637 or mobuszewski at verizon.net.