Rainbow Defense

Report from Federal Court

7/29/06
By Don Wirtshafter

Hearings were scheduled in the Federal District Court in Denver today for six gathering tickets, including my own. Presiding was Judge Rice, who normally sits in the court at Grand Junction. There were many other cases called, all of which were quickly settled except the Rainbow cases.

Goodwater rode in with me from Nederland, Colorado. We'd just spent two days holed up at Rob's mountain retreat preparing for these hearings. Goodwater is a law student on summer break. In a previous blog I described the good job Goodwater had done defending his own gathering ticket based on a religious freedom defense. We also were depending on the legal help of Pat McCarville, a Nederland, Colorado criminal defense attorney whom I had known for several years for his work as a manager of various concert venues. Pat had read my early missive on the threat to the gathering and wrote me a letter offering his help. When funds became available to hire legal help, I asked Pat to pitch in.

Getting Pat's backup became important after the LEOs charged me with the same crime those I was representing were facing. Pat was local and could attend court sessions when otherwise it would mean a plane trip for me. He agreed to help on all of the remaining cases for a retainer that would have ordinarily been appropriate for a single case. Pat had a hearing in Boulder this morning and had notified the court he would be late.

Also present was Bilbo Baggins who had been a big help clearing up the few remaining cases in Steamboat Springs. Bilbo was also helping beat the bushes for videos, photographs and affidavits from the gathering. Reverend Cannabis and Oska were there as well. Rev. Cannabis had been given a ticket and has his case up for appeal.

The Judge introduced herself and the court. The Assistant US Attorney (AUSA) was Arturo Hernandez. Six Law Enforcement Officers (LEOs) sat in the jury box waiting to testify if necessary. Well-armed federal Marshals patrolled by the door. Kathy Triplett, the Clerk of Court who worked each day at the temporary court at the gathering was there. This temporary courtroom was appropriately dubbed the Kangaroo Court.

When the court took its first break I asked Ms. Triplett about the copies of the recordings I had requested. She said she had some CDs for me downstairs. I had a dozen procedural questions for her. She was quite helpful. She offered to let the AUSA know that we needed to talk to him when he got a break. I figured the introduction would help break the ice.

First up was Chris. Chris had somehow pissed off the Kangaroo Court at one of the early hearings and was punished with a $500 fine on a gathering ticket, plus costs. He had perfected his appeal by filing all the necessary papers, but the court still scheduled a hearing to determine his payment schedule on the fine.

Chris was dressed in his fineries, as if he was heading to circle on the 4th. He asked the Judge what jurisdiction she had to impose a fine on a child of god. He wanted nothing from the court and warned of the harm that was to come if he were convicted. The judge kept affirming that he was already convicted and all she wanted to hear was a request for the court to set a payment schedule. The court showed great patience and eventually Chris managed to say something close what the judge wanted to hear. She ordered Chris to pay $100 a month until it was paid in full. He kept trying to talk and she kept cutting him off. Eventually he understood that if he kept going he would be in more trouble, so he walked out of the room. Not a great first impression on the court to start off our day.

Summer and My Cases

When things slowed down, AUSA Hernandez offered me a seat at the prosecution table. I pulled out my ticket and the receipt I had gotten when I paid $160 to join the Colorado federal bar. "My charge, and the charge against my assistant Summer Breeze, are for being in the National Forest without a permit. This is our permit" (I handed him the receipt for payment of $160 toward my bar admission.) Until this point I am not sure he got it, that I was an attorney representing myself and my secretary. I explained that before I ever got to the gathering I had gone to the Kangaroo Court and applied for federal bar membership. I was quite clear that I was ready to fight my case, but I thought it absurd and really evil for the LEOs to ticket a lawyer and his assistant. I described to the AUSA how we were being targeted, how the other lawyer helping to liaise between the Forest Service and the gathering had also been ticketed.

Just then Summer Breeze walked in. Good timing. I introduced her to AUSA Hernandez. Attorney Pat McCarville had not shown up yet. Pat had submitted a notice of appearance for Summer and applied for an order excusing her presence at this hearing. This order was granted but we had no way to let Summer know. Based on prior experience, Summer Breeze did not trust that the order would come through. So even though she was needed in Idaho to help a daughter, she and her husband had driven straight from my house in Ohio to Denver for the hearing.

Hernandez questioned whether or not I had stayed in the gathering. "Of course I stayed inside and I had my family there as well. How else was I supposed to find clients and witnesses and hear what was really going on?" I got back into how unseemly it was going to look that I did the work to get accepted as an officer of the court, ran my first trial in which I got to cross examine (and apparently piss-off) the Incident Commander and then got ticketed on our way back into the gathering. He kept wanted to know if I was really there to represent clients. I told him the truth; that these miniscule violations were a distraction. I thought my work at the gathering was more directed at a civil suit against the government for violation of religious and other First Amendment rights.

Hernandez then asked about Summer Breeze. Was she my office secretary? No, but she has worked with me for several years. She was my legal observer in the Kangaroo Court they held in W. Virginia last year. He asked what she did for me. I said "take notes." I told him about the first day of court when Summer did not have her ID and had to wait outside. There she organized the defendants for me while I accompanied each group of 10 through the process. On every other court day she sat in the courtroom and kept copious notes, which I offered to show the AUSA.

Okay, he said, if you will swear as an officer of the court that you and Summer were there working as attorney and legal observer, I will dismiss your charges, but these are special circumstances. Don't try to use this as a precedent for other cases. Just then I noticed that Pat McCarville had walked in. He was supposed to represent Summer but instead walked in to find me taking care of the case. Of course he was quite happy to see this result and appreciated the teamwork.

Some may criticize me for taking an easy way out in these cases, that I should have allowed the prosecution in order to attack the larger picture, the unconstitutionality of the Non-Commercial group use regulations. I should explain that both Summer and I are working diligently to defend the remaining criminal cases and overturn these regulations. We need good test cases, but still thought it important to get our own cases dismissed as quickly as possible. An explanation of why this was necessary according to standard attorney ethics would be long. Suffice it to say I thought it too difficult to do a good job defending my fellow gatherers while a case was pending over my own head.

Summer and I had both been ticketed for the same violation in Michigan. Her treatment there was horrendous and merits its own civil suit. She had the will to fight, but it felt more important to get the charges dropped so we could concentrate on the real battle ahead. The fact that they brought charges against the lawyers and the legal observers can be used in future criminal and civil cases. It will not matter the charges were later dismissed.

Just when we were done, AUSA Brahn walked in. He represented the government the last two days of the Kangaroo Court. Brahn had refused to dismiss my charges two weeks before in Steamboat. I thought fireworks were about to go off, but he seemed okay with AUSA Hernandez's decision to drop our charges. He was quite cooperative with us the rest of the morning.

Jessica's Video

I then introduced Attorney Pat McCarville to the AUSAs. Pat spoke on behalf of Jessica. Jessica and her husband were on their honeymoon. Traveling with their baby and a friend they were stopped at the roadblock. The LEOs ordered her husband out of the vehicle. Jessica sat in the back seat and started her still camera taking a MPEG video shot of the action. This video is so cool, that I will describe it in detail.

The video starts as Jessica's husband is ordered to step out of the car at the LEO roadblock. He is being quite cooperative. He follows instructions to put his hands behind his back. A female LEO that everyone who saw her nicknamed "Butch" takes control over him. She holds his thumbs together behind his back while she tries kick his legs out from under him and knock him to the ground. He keeps his balance but otherwise does not resist. She tries to trip him again. He asks if he is under arrest and the answer is no. "Why are you doing this if I am not under arrest?" he asks. A supervisor orders Butch to put handcuffs on him. Meanwhile, Jason "Tactless" Tacbas, the absolute rudest of the LEOs, leaves the takedown scene to get their van moved off the road.

Tactless approaches the vehicle asking if either Jessica or her friend had a driver's license. "I need you to move this vehicle off of the road right now!" Tactless commanded. He sees the camera. You can see he is nervous. Jessica asks, "Can I ask why you are doing this to my boyfriend?" Tactless snarls back, "When we are done you will get a full explanation." Jessica answers, "I don't need an explanation. You have no right to do this to us. My husband and I are on our vacation." Jessica stays calm and asks for their badge numbers. Jason Parker, another of the rogue LEO's comes up. "Maaaam, I am the supervisor here. When we get done you can have all that information." Jessica films his badge and asks his name. Parker responds by showing the camera his other breast and his name badge.

The other female LEO, M. Snibbi, whom we called "the blonde", was ordered to stand between the van and the takedown to block the camera view. At this point the Dike has the handcuffs on. Even with the blonde in the way you can clearly see Butch blatantly throws her prisoner to the bare ground. He calls out, "Did you get that? Did you see that?" "I sure did" answers Jessica trying to keep him calm. As the friend moves into the drivers seat Jessica gets out of the back seat to better film the action. As she gets out of the car the camera pans around. There are at least two other take down scenes happening around this one. There are other people in handcuffs on the ground. Jessica crosses the road and films the LEOs going over her husband. She is still maybe 25 feet away when she is ordered to keep back, which she does. But then she says, "I'll need your badge numbers too." The supervisor orders the blond, "Arrest her for interference." The momentum turns toward Jessica.

They demand Jessica's identification. "I have my wallet, it's in the van. Look, I have my baby in there." Parker yells, "If you don't give me your ID I am taking you to jail." "You are taking me to jail for what?" Jessica asks. Parker barks, "I did not say I was taking you to jail, I said I was taking you to jail if you did not give me your ID." Jessica steps into the vehicle and you see her baby still strapped in the car seat. Parker reaches in to grab the camera and the scene ends. Jessica had the sense to hand the camera to her friend. None of the LEOs realized the camera was on in video mode, so they didn't destroy the recording as they did in other incidents at the gathering. (This will be up on streaming video soon at welcomehome.org)

Jessica faced charges of Interfering with an Officer, a common charge at this gathering. They especially targeted people taking photos or videos of their takedowns and arrests with this charge. The LEOs were also quick to issue one for yelling "ShantiSena" or "Six-up". Several interfering charges came from not having or not producing identification quick enough for the LEOs.

So Pat and I showed this video to the two AUSAs. We tell them about the propensity of these LEOs to ticket photographers. It made the LEOs look really bad to the attorneys charged with prosecuting their cases. The video made it so clear that there was no interference that the AUSA had to move to dismiss this charge. All gathering charges could go like this if we had enough cameras and LEO escorts in the gathering.

Miscellaneous Cases

I took the opportunity of the break to talk with the clerk. She told us she had just prepared 124 bench warrants for all those who did not show up in court. Then I asked her if it might still be possible to pay the collateral fees on the outstanding warrants. She replied that Magistrate West had set a collateral fee of $125 in most every case. Until the warrants were actually filed, we could still pay this amount and the cases would go away. I then asked her how I could get this collateral fee lowered. She said it would be up to the judge. She thought it funny that someone else had offered to pay off all the tickets. She then offered to speak to the judge about this for me and suggested I cut a deal with the prosecutors.

Will's case was next. At his July 7th hearing, Will had refused to take off his hat before going into court. This resulted in his being surrounded by 20 officers poised to beat the hell out of him. This scene angered the prosecutor enough that he refused to waive jail time for Will. The result was that Will was one of the few defendants entitled to the public defender. This did him some good. The public defender was able to convince the prosecutor to dismiss this case. Will did not even have to show up.

Ed's case was next. Ed was there doing a documentary on the Hari Krishna's feeding scene. He happened upon one of the LEO's more egregious takedowns and began filming. So, the LEOs, in what seems in accordance to their training, came after Ed. The LEOs beat him up pretty badly. They gave him interference and gathering tickets and two other charges. Supposedly there are videos of this scene; Joy and someone else were there filming. But we could not find these videos in time to do Ed any good.

Ed pled no-contest at one of the early Kangaroo Court hearings, before I was around. He was given $275 in fines and ordered out of the National Forest for a year. Ed could not live with this outcome. He came to the July 2rd court hearing and with my prompting asked that he be allowed to withdraw his plea. He also asked that he be allowed to return to the gathering to find his son and his stuff, which the court allowed. A hearing was set the next day on the motion to withdraw his plea. Ed had waited in the hot sun for most of July 3rd to see the magistrate. Eventually he got to a point that he needed to get emergency medical care. He was blistering up worse than I had ever seen and was having heart issues. Ed asked permission to leave but the LEOs told him if he left an arrest warrant would issue for him. I told Ed to go anyway and I would let the court know what happened. Ed got the help he needed and returned to the Kangaroo Court, but the session had finished. He went back to the gathering. There was no court on July 4th, but the LEOs busted into Ed's tent and gave him another gathering ticket as a way of showing the judge he had violated the court's order not to be in the National Forest. They did not realize Ed had some degree of permission from the magistrate to return to the gathering.

At today's hearing, Ed again stood for himself. He was polite to the Judge but really firm in his stance. He did great. He explained how attending a rainbow gathering several years before had changed his life and how he became a Krishna devotee and had worked feeding people for years. The devotees feed 100,000 people per day around the world. He worked for months feeding people in post-Katrina New Orleans. He gave the perfect religious freedom defense. The judge ordered a recess for the AUSA and Ed to discuss a settlement. They agreed that four of the five tickets would be dismissed and Ed agreed to pay $50 on the remaining ticket. He was thrilled. The orders that Ed stay out of the National Forest disappeared.

The next case worried me. One July 6th, Matt had agreed to plead not guilty to three roadblock citations. It was little stuff, a pipe and what they thought was a meth pipe. He was one of the first cases I referred to Pat, but Pat had never heard from him. I sent Matt a letter begging him to call me or Pat but we received no response. Bilbo had chased his house down in Boulder. His roommates had not seen him for a week. He was a no show. Without even a conversation, neither Pat nor I could speak out for him. So we expected a warrant to issue for his arrest. But the AUSA decided to drop the case. Dismissed! We were five for five today and probably nineteen for twenty overall. Except for Nicky, whose case is on appeal, everyone I convinced to plead not guilty was acquitted.

I then took the opportunity to approach the two AUSAs to thank them for being reasonable. I asked them about two tickets issued to kids who were working hard on the clean-up crew. Some LEOs had continued to harass the gathering right through the clean-up. Somebody left a small fire smoldering and these two brothers were cleaning it up when the LEOs approached. Despite their protests that they had nothing to do with starting or using the fire, they each were issued tickets for maintaining an illegal fire. The LEO said even putting out a fire was maintaining it. Badger had called to ask me to pay these tickets and one other clean-up ticket from the legal fund I had collected. I agreed because Badger described how hard these guys had been working and that they had no resources of their own. The collateral fee was $75 each. I asked the AUSAs if they would compromise these down to a $15 and $25 in court costs. They agreed.

I then took it one more step, and I know this will be controversial for some. To me, based on experience, the heartbreak of this gathering was the 124 cases where the defendants had failed to show on the summons to court. A typical result is that later the defendant will be pulled over for a driving infraction. An ID check will pull up the warrant. The guns come out and the driver is arrested and put in handcuffs. The car is impounded and searched. All the friends in the car get searched and charged if anything is found anywhere. The defendant can spend months being roughly shipped from jail to jail while the government figures out what they want to do with him. I have seen this happen far too many times. The legal expenses can top $10,000 just to break such a defendant free. Most have no money so they rot in custody waiting for the bureaucratic gears to grind them out.

In our legal huddle on the 5th of July, I fantasized about finding the money to pay off all of these tickets to avoid the impact of these warrants on so many in the family. Everyone there thought it a great idea, but at the time I did not think this could actually happen. But now that I had the momentum and the relationship built I had the opportunity to make such a rash offer to both prosecutors. "How about we just pay $15 in fines and court costs for all of these outstanding cases?" By now everyone understood that all of these cases were the tiniest of violations and the whole mess could go away with this deal.

It was important for the government to see the Rainbows would stick together and protect each other. With the cooperation of the AUSAs, we ran my $15 per ticket offer by the judge. She had already been urged by the clerk to go along with such a deal. Judge Rice said she had been looking through all of the files. Other than a couple of driving under suspension cases, the rest were marijuana possession or gathering tickets. She asked if the AUSAs would also agree to a $15 forfeiture for the marijuana cases. They pretty much had to agree. And then they agreed to a $15 forfeiture for the driving under suspension cases too. The judge asked us to come back at 1:30 pm to meet with the clerk and pay the bill.

What a day. From having over 150 cases on the docket, most with defendants that would be difficult to find, we were down to one, Rob's and four cases on appeal. Rob has an attorney who specializes in these matters. Rob has the perfect case to test the gathering regulations. His pre-trial is scheduled for August 11th. Now we can all unite our efforts to back this deserving brother. Whether the government will actually go ahead with Rob's prosecution, we can't tell. It appears that they will want to try him because they consider him a "Rainbow Leader." If we can get a trial, we will be way more prepared and way better armed to build the record necessary to throw these regulations out once and for all.

We went outside the courthouse and celebrated with those who chose to stay outside. We all went to lunch to unwind and discuss the impacts of our day's work. Everybody urged me and Pat to initiate a civil suit against the government over the regulations and the unconstitutional and abusive nature of the LEO attack on the gathering. We both explained that neither of us was the best attorney to take on an action like this. Neither of us specialize in civil case law. We explained our work at this point was to assemble the critical mass of evidence needed to attract one of the top civil rights lawyers to agree to take the case on a contingency basis.

Pat and I explained to everyone a case comes from assembling the evidence needed to prove a case and that as of now, we have no case. This is why we are continually screaming into Cyberspace that WE NEED THOSE VIDEOS AND PHOTOGRAPHS YOU TOOK AT THE GATHERING EVERYONE!!!. There must be 1000 of you that got good photos of the LEOs doing abusive and/or illegal acts. We need these or we don't have a civil case. We have some great videos of the LEOs being stupid at this gathering. We need more shots from this year and even shots of previous years to prove this is a pattern, not just isolated incidents. We joke about marketing a compilation of these videos as "LEOs Gone Wild!" I still offer to cover the duplication costs of anyone with videos or photos that are relevant. If you saw something, please, please write it down and get it to us. Be as specific if you can, where, when, what, who and how it impacted you. Get these to me at the address below.

During lunch we had a discussion with attorney Pat McCarville, who now really understood what we were up against. He expressed how proud he was to be able to represent us. He promised to come to next year's gathering with his family and pitch in. Then he agreed to donate over 80% of his legal retainer towards payments of the outstanding fines. What a sweet offer. We all owe Pat a huge amount of gratitude for putting so much time into these cases on an essentially pro-bono basis.

The Clerk's Office

After lunch, we went to see Ms. Triplett, the clerk, to pay our bill. I owed her money for appeal costs, CD duplication and for the outstanding fines. That was when she laid her bombshell on me. Ms Triplett handed me an affidavit signed by the deputy Clerk of Courts. It disclosed that despite diligent efforts on the part of Ms. Triplett, the machine that was supposed to be taking the recordings of our long days in court was not working properly. The court had lost the entire recordings of the hearings held on June 29, July 1st, July 2nd and July 3rd! The affidavit disclosed that the disk had been sent to two data recovery companies who could extract the recordings. Oh my god, how am I supposed to fight these appeals with the transcript lost? Ms. Triplett was quite apologetic; I am certain it was not a purposeful error on her part. Instead it was another manifestation of how unfair setting up a federal courthouse in the wilderness can be to the defendants.

I was perturbed, but I did not show it. This was not just because all these trial records, all that work, all that good testimony from Tim Lynn had been lost. I was upset because I should have been told this in the morning before we went into pre-trial hearings for all these other cases. It was certainly relevant. I can't say it would have changed any outcomes as every case went our way. But I should have been told immediately that there was a problem.

Ms. Triplett then informed me that the judge had decided to review all cases up for appeal. There are four cases with perfected appeals including my client Nicky, Chris who had appeared this morning, Reverend Cannabis, and Piper. The lost records affect all but Pipers case. But rather than sending these cases to the appeals court, these four defendants will be ordered to brief the cases to an actual Judge of the lower court. The original decisions were made by a lowly magistrate.

Well maybe, I realized, that this was not so bad. All my worries about not asking Tim Lynn the right questions on cross examination are over. We can pretty well describe what we think the testimony was and the government can dispute any of our proposed findings of facts it wants to. We can brief our First Amendment issues and hope for a sympathetic judge to throw out the charges. It is another crack at the victory we really want; a court throwing out the regulations as being unconstitutional or at least unconstitutional as they are being applied to the Rainbow Family Tribe.

The federal rules of criminal procedure include rules for reconstruction of a record. We will have to study them as we prepare for these upcoming appeals. The US Attorneys may use this as an excuse to throw out the appeals as these are a lot of work for them too. Or a judge may hesitate to make a historic ruling on a reconstituted record. We'll see. It sure does not feel fair.

Attached to the Affidavit from the clerk were 36 pages that summarized the cases heard in the Kangaroo Court, 16 violations to a page. What a mess. It is a lot of data that will be useful for us including the name of the person given each ticket and the final disposition. But these summaries did not include the defendant's addresses. "Come on," I argued, "I am paying off the fines of 124 people. How am I supposed to let them know this was done for them?" We want these names and addresses because we want to write each of these people to get their stories and hopefully their photographs and videos. The clerk promised to approach the judge about making these addresses available to us. I will ask for her answer on Monday.

I will not put all these names on the Internet, but hope to soon post good statistics. My guess is the government spent well over a million dollars to collect less than $10,000 in fines. Hundreds of cars were searched. Guns were found on only two occasions. (Both of these were active duty police officers who spent considerable time spread-eagled on the hoods of their cars before their identities could be verified.) Despite all the drug dogs and all the illegal searches of cars, the feds failed to find any quantity of drugs. Besides all the gathering tickets, these were all contrived cases. Any cop worth a damn would never have taken these miniscule possession of a pot pipe, possession of firecracker or open container (bottle of whiskey in the refrigerator of a van) tickets to court. I can not overemphasize this enough. The LEOs stopped hundreds of cars at the roadblocks. Based on their dog's "indications" or their own instincts, the LEOs chose to search approximatly 400 of these cars, with or without the owner's permission. But in all these complete, take-everything-out-of-the-car searches, they found pretty much nothing at all illegal. No guns, no quantities of drugs, not one DUI, no stolen cars. But the Forest Service LEOs needed to build up their statistics to contrive some truth to their pre gathering bad-rap. Until we focus our resolve and commit the resources necessary to fight back, we remain willing victims to this scam. Until we all commit to attending these gatherings with cameras and notebooks, and taking names and standing up for our rights, we will be preyed upon. This year I really think we can turn things around. Come on everyone, what did you see? Write me.

We all had another celebration as we left the courthouse. Chesterfield had been patiently waiting all day to get an interview with me. Originally from Steamboat Springs, Chesterfield returned to document the Forest Service spreading pre-gathering horror stories to the Denver and Steamboat Springs media. Store owners were prepared to lock down against the onslaught. This is contrasted with peaceful gathering shots and post-gathering interviews with the store owners talking about how great the gathering was for them. Chesterfield has accumulated video testimonies on how well we behaved and the lack of problems with shoplifting, loitering, etc. I felt okay about the interview, I get tongue-tied at times. The wind was blowing my hair in my face. But everyone else said I did great. Moments were great, the final result will be told in the editing.

All and all, it was a remarkable day. Amazing what teamwork can accomplish. My thanks go out especially to Pat McCarville, Goodwater, Rob, Summer, Raven, Scottie, Bilbo, Rev. Cannabis, Oska, Chris, Ellen, Laura, Michelle and everyone else pitching in. We got everything we ever thought we could accomplish at these hearings. We are down to a few good test cases. We have shown we are powerful when we stick together.

The fight continues. Stay tuned for more dispatches.

Don E Wirtshafter
don@hempery.com
740-662-5297