From: Max Obuszewski [mailto:mobuszewski@verizon.net]
Sent: Friday, September 03, 2010 4:11 PM
Subject: AND THEN THERE WERE NONE
And Then There Were None
Is Judge Craig Iscoe of the D.C. Superior Court reading Agatha Christie? Of course, I don’t know, but I do wonder.
On Aug. 30, 2010, three of the four defendants, Michelle Grise, Joan Nicholson and I, appeared before him for another status hearing in the long-running contempt case, which began Sept. 26 or 27, 2006. Maria Allwine was not present, but Ann Wilcox was there to represent her. And Steve Polin was representing Michelle.
Iscoe ordered us to pay the $50 court costs by Aug. 13, but we did not. So he was quite perplexed on Aug. 30.
His first order of business was to go after Maria for failure to appear. As pointed out in a motion filed by Ann, Iscoe had ruled that defendants did not have to appear for status hearings. Maria was present when he stated that it was only necessary to appear for trial. He ignored the motion and Ann’s argument and issued a warrant for Maria’s arrest. To further salt the wound, he placed a $1,000 bond on her.
Since he took over the case in January 2010, his strategy has always been grind-them-down until they comply. We started with eleven defendants, and seven of them were still in the case that Iscoe received. Three of them eventually paid the court costs, so he now smells blood like that shark in JAWS.
Polin reported that an appeal was filed to challenge the judge’s decision to deny our argument that “crossing a police line” is not a serious misdemeanor. If the charge, which does not carry a jail sentence, is not considered serious, by law we would not have to pay the $50. We presumed the appeal would again stop the contempt proceedings until a decision was rendered by the D.C. Court of Appeals. Iscoe had other ideas, though, and was ready to hold us in contempt. Only because of Polin’s knowledge of the law was the judge stopped in his legal tracks.
The lawyer explained that the Supreme Court has ruled that a defendant cannot be incarcerated as punishment in a case where there is no jail sentence. The judge still hoped to proceed with criminal contempt, and told us we would be facing 180 days in jail and/or a $1,000 fine. The experienced attorney said "No, you can’t.” There is a proportionality argument that a judge can’t fine a defendant $1,000 for refusing to pay $50.
The judge then floated another balloon to get our attention—civil contempt. In other words, we would remain in jail until we agreed to pay the $50. Steve pointed out that the judge is now trying to use civil contempt to get at us from the back door. Iscoe claimed that by observing our “body language” he could see we understood the seriousness of the situation.
Instead of accepting that the case is on appeal, Iscoe went through some legal gymnastics and philosophical arguments. Probably his best attempt, worthy of Comedy Central, was to try to define civil disobedience to three pacifists. In civil disobedience, he opined, those arrested take responsibility. He was wrong on several fronts. We did not engage in civil disobedience, the breaking of an unjust law. We did civil resistance, as our government is breaking the law, as well as the budget, with these mindless wars. And by refusing to pay the $50, we are prepared to take responsibility and go to jail.
Next he said we had many opportunities to explain our perspective. Never once has he asked us why we refused to pay the fee. It is very simple. We were unfairly convicted on suspicion that we might later break the law. So our refusal is a reaction to the court’s granting of excessive power to the police and the basic denial of our First Amendment rights.
Only because of Polin’s legal acumen did we escape being held in contempt and possibly incarcerated. Our next visit to court will be Oct. 7 for oral arguments. Is the case ripe? Can Iscoe proceed in advance of a ruling from the
During the 30-minute hearing, the prosecutor said one sentence. I am still baffled that the judge is orchestrating the process. Based on my years of legal jousting with the justice system, charges have always been filed by the government. Why is a judge telling us what statute and the possible punishment we would face in a contempt trial?
Judge Rufus King III tried to jail us for contempt on May 11, 2007, but Mark Goldstone had to educate him on the law. Why would we not be facing a criminal contempt charge, which carries a sentence of one year in jail? In that situation, we would
be eligible for a jury trial. If Iscoe is the decider, we are already guilty.
The title of Agatha Christie’s classic mystery novel was the racist TEN LITTLE N******, when it was published in 1939. When it was released in 1940 in the
ten people, who have been complicit in the deaths of others, are tricked into coming onto an island. They are all mysteriously murdered one by one, in a manner somewhat like the nursery rhyme "Ten Little Indians.” The novel has also been published and filmed using the nursery rhyme title. The nursery rhyme ends with this sardonic line, “He went out and hanged himself and then there were none.”
The Christie novel remains the best selling mystery ever. One of the ten on the island is Justice Lawrence John Wargrave, a retired judge who relished handing out the death penalty. He has his reasons for concocting this fiendish exercise in serial murder.
Readers of my previous write-up about this intriguing contempt case saw my reference to Charles Dickens and BLEAK HOUSE. Now I realize I followed, not unlike mystery readers, the wrong trail. Now, I see our case as an Agatha Christie novel. A very sly, conservative judge intends to fulfill the prophecy of the nursery rhyme AND THEN THERE WERE NONE.
After the Aug. 30 hearing, Maria and I spoke. I urged her to cash in her chips, as the judge wants to make it as difficult as possible for her. She has a new job, and her mother is ill in
She made the decision to stay the course and took time off from work in
Once Maria had an opportunity to speak, she declined his offer of legal assistance and wanted to proceed pro se. She was comfortable enough to then correct the judge and remind him of his previous decision to not require defendants to attend status hearings. His response was "I did not say that.” Her retort was "Yes, you did.” Then he said it was a “show-cause” hearing. She correctly pointed out that the Aug. 30 docket posted on the courtroom door said status hearing. She informed him, so that there was no misunderstanding, that she had not "chosen" to fail to appear. Instead, she did not attend the hearing because she took him at his word.
After he quashed the warrant, he urged her to pay the $50. He went into a replay of his arguments that it would be best to pay out. The defendants were looking at civil or criminal contempt. With criminal, she would be facing 180 days in jail and/or $1,000 fine. He explained the $50 would be used for victims of violent crime. Since he has never asked, he is not aware we are refusing for reasons of principle. We support the concept of courts costs going to victims. In fact, the money should go to the people of
He then tried the argument that we have been taking up the court’s time, which could be put to a better use. Why then is he continuing to pursue a case in which a mere $200 is at stake? Maria declined to pay out, and informed him she will attend the Oct. 7 hearing.
On Oct. 7, the four of us will continue to joust with windmills. Who knows what might be the outcome? I sense the judge will rule against us after oral arguments and then find us in contempt, regardless that an appeal is pending. I will be prepared for incarceration.
If he does rule against us, I would hope he would schedule a trial so that the defendants can finally testify. He will convict us in defiance of the First Amendment and in support of excessive police power. Then in my sentencing statement, I will invite him and the prosecutor to attend the next nonviolence training, to start upholding the
Max Obuszewski is a
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