Report from Federal Court
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
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
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
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.
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
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
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
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
The fight continues. Stay tuned for more dispatches.
Don E Wirtshafter