by K. Douglas Lee
Earlier this week, on May 3rd, we witnessed liberty in action: a Clinton-appointed federal judge took the government to task over its continued holding of the Hutaree “Christian militia” members in Michigan.
They can try to spin it any way they want, but the government lost this one, big-time. There are two fundamental rights implicated in the judge’s ruling — free speech, and the right to a reasonable bail. Both of these fundamental, constitutionally protected rights are absolutely vital to our system of ordered liberty, and to the very existence of our republican form of government. Judge Roberts’ ruling thus deserves much wider discussion than the old media has given it; it should be printed out and taught to every high-school kid in the US. It shows how our republic — and our criminal justice system — are meant to work.
Is this a politically motivated prosecution?
It is no secret that even before President Obama was elected, the left began focusing once again on what they call “right wing militia” groups. To hear them talk, every single militia member is a budding young Timothy McVeigh. Thus, there was some alarm but not a great deal of surprise when nine members of the “Christian militia” group called the Hutaree were arrested in Michigan. Now, thanks to an extensive order written by the federal judge in charge of the case, we now know that the case against the Hutaree is thin, and based almost entirely on the theory that they exceeded the allowable bounds of free speech. One could very well argue that by definition this is a politically motivated prosecution, since it focuses on what the government is terming “hate speech.”
I’ve included a copy of the Court’s ruling with this post — please take the time to read it. You will know a great deal more about the evidence against these men. You may be fairly shocked at at paucity of evidence against them. You may even wonder how easy it might be to start with “fringe” groups like the Hutaree, and then draw an ever tighter stranglehold around the free speech rights of other “radical right wing groups,” like your local TEA Party members. Remember, these men never committed any act of violence against any person — they are being prosecuted for their political speech alone.
Perhaps you are sympathetic to the Hutaree, perhaps you are not, but every one of us must understand that what happens to them affects the liberty interests of every person in the USA. Their case is clearly one in which we are being called upon to determine the boundaries of free speech. At stake is much more than your freedom ability to speak out and criticize the government that you elect and that you put in power — what’s at stake is your freedom from imprisonment for voicing your political views.
Do not be misled; the Hutaree case is all about the limits of your first amendment right to free speech — specifically, your right to be free from imprisonment for engaging in political speech that others find offensive and dangerous. However, “free speech” is not the only liberty-based value at stake; the age-old right to bail has been attacked by the government, who have sought to keep the Hutaree members incarcerated until trial. Fortunately, for all liberty-loving Americans, the federal judge in charge of the case has sided squarely with truth, justice and the American Way.
Bail — it’s not just for criminals, it’s for all of us.
In America, our values dictate that we should usually wait until a person has actually been convicted of wrongdoing before we incarcerate him; not always, but usually. After all, what good is the right to a fair trial if you can be forced to “do the time” even when you did not “do the crime”?
The Eighth Amendment to the Constitution prohibits “excessive bail,” and was based on the English common law system that we had inherited. The right to a reasonable bail was one of the things that the English (and later, the Americans) proudly claimed made them “free.” It should thus be no surprise that in passing laws regarding pre-trial detention, “Congress envisioned the pretrial detention of only a fraction of accused individuals awaiting trial.” United States v. Orta, 760 F.2d 887, 891-92 (8th Cir. 1985).
However, bail can be denied in certain circumstances, and the Hutaree members are charged with some very serious crimes: (1) Seditious Conspiracy, (2) Attempt to Use Weapons of Mass Destruction, (3) Carrying, Using, and Possessing a Firearm During and in Relation to a Crime of Violence, and (4) Teaching/Demonstrating Use of Explosive Materials (though only two Hutaree members are charged with the last crime). In fact, Judge Roberts pointed out that “[t]wo of the charges against the Defendants – Attempt to Use Weapons of Mass Destruction; and, Carrying, Using, and Possessing a Firearm During and in Relation to a Crime of Violence” are so serious that they “create a presumption that no condition, or combination of conditions, will reasonably assure Defendants’ appearance in Court as required, and the safety of the community.” Order, page 7. This means that anyone who is merely charged with these crimes will have a very hard time convincing a court that he should be released pending trial, even if the evidence against him is less than convincing.
So, these charges flip the standard upside down — merely be charged with these crimes creates a presumption that the defendant cannot be released pending trial. Once can see why the judge appears very uncomfortable with this new standard. After all, the government has tremendous leeway in its ability to charge crimes. Any of us who have defended criminal cases in court know that prosecutors routinely charge people in a way that forces them into a box — either plead to something lesser, or go to trial and risk many more years in prison. Prosecutors also routinely charge cases in such a way as to insure that defendants will stay in jail for several months — even years, sometimes — before they go to trial. It becomes far easier to get a conviction this way.
I’m not passing judgment on the prosecutors who use these tactics, though, because altogether I believe that the criminal justice system is about as fair as it can be. However, when the charges are political in nature, there is a great danger that these tactics can be used to squelch political dissent. Instead of keeping society safe and protecting our liberty, these tactics can be used to create an authoritarian police state.
Judge Roberts, however, pointed out that ” the government may not merely come before the trial court, present its indictment, and thereby send the defendant off to jail, foreclosing any further discussion. Rather the defendant . . . must be afforded the opportunity for a hearing at which he may come forward with evidence to meet his burden of production, leaving on the government the ultimate burden of persuasion.” Order, page 7, citing United States v. Hurtado, 779 F.2d 1467, 1478 (11th Cir. 1985). So the court-appointed federal public defenders submitted their arguments to the court on behalf of the Hutaree, with results that have apparently stunned the prosecutors.
“Defendants believe that because the weight of the evidence is insubstantial, the Court should have serious reservations about denying them bail… the Government failed to persuade the Court that Defendants must be held until trial.”
In essence, the court has smacked the prosecutors in the face by saying that there is so very little weight to the evidence in their case that, even though two of the charges are extremely serious, the defendants cannot be held without bail pending trial:
Nonetheless, the weight of the evidence the Government has against Defendants is an important consideration. In fact, the seriousness of the charged offenses, the weight of the evidence, and whether the Defendants are a danger to the community, are inextricably intertwined; the Court’s own Pretrial Services Agency, which makes bond recommendations, concluded that but for the seriousness of the offenses charged, the Defendants are all people it would normally recommend for release on bond.
Allow me to translate this for you: the evidence was thin enough that the Court would not normally hold these men without bail. However, because two of the charges are so serious, they have been held without bail until now.
Since the charges are so serious, the judge has to be pretty convinced that the government’s case is very weak before she will let the men out on bail. Here is the key to the entire case:
The United States is correct that it need not wait until people are killed before it arrests conspirators. But, the Defendants are also correct: their right to engage in hatefilled, venomous speech, is a right that deserves First Amendment protection. Because speech is so much a part of the Government’s case, Defendants urge the Court to look carefully at the evidence in making its bond decision. Defendants believe that because the weight of the evidence is insubstantial, the Court should have serious reservations about denying them bail. Due to the complexity of the case, and the number of Defendants, Defendants say they could be in jail for a long time, awaiting trial.
Did you get that, liberty-lovers? The right to engage in “hatefilled, venomous speech” is protected by the First Amendment. This is definitely not the left’s understanding at all; nowadays, the Liberal/Progressive movement treats any speech that they do not like as “hate speech,” and are busy passing laws to try to criminalize it. For the left, Judge Roberts’ ruling must really sting.
The Court did address the problem that the difference between protected free political speech and illegally conspiring to commit serious, violent crimes is “not always clear.” The Court made cited “the clear principle that crime masquerading as speech deserves no First Amendment protection.” Yet, despite the undeniably high standard that the Hutaree members were subjected to, and the very lenient standard that the government’s case was held to, Judge Roberts found that (1) Defendants met their burden to produce evidence in favor of release; and (2) the Government failed to persuade the Court that Defendants must be held until trial.”
In short, the evidence of actual wrongdoing on the part of the Hutaree members was just far too thin to justify holding them without bail. Despite a two-year investigation into the group, despite the seriousness of the charges, despite even the videotaped evidence of the UN flag being burned by the Hutaree (to the shock and horror of Liberals everywhere), the Judge did not find the evidence against them to amount to anything other than hate-speech.
True, this is not a “not guilty” finding, but it certainly does not bode well for the government’s case. In this case, the proof was considered along with the serious nature of the charges, and there was a presumption against releasing the men. Convictions, however, require proof “beyond a reasonable doubt,” and the government must overcome a presumption of innocence at trial. They are not out of the woods yet, but certainly, the Hutaree members have great cause for celebration today.
And, regardless of the ultimate outcome of this prosecution, all liberty-loving Americans have cause to celebrate Judge Roberts’ ruling. It is a victory for us all.