CINDY SHEEHAN WINS IN U.S. COURT OF APPEALS/OTHER PROTESTERS OPTIMISTIC WITH THEIR APPEAL

WHO: The National Campaign for Nonviolent Resistance (NCNR) was formed for individuals willing to engage in nonviolent civil resistance to protest the war in Iraq and pressure Congress to withdraw all troops. NCNR organized a demonstration on the Pennsylvania Ave. sidewalk outside the White House on Sept. 26, 2005 and three hundred and seventy one activists were arrested and charged with demonstrating without a permit. Cindy Sheehan and others from around the country exercised their First Amendment right to petition the government by placing the names of the dead from Iraq on the White House fence in an attempt to convince George W. Bush to end the Iraq War. It is believed that this was the largest number of arrests in U.S. Park Police history. The government then conducted four trials in U.S. District Court in order to deal with all of the arrests.

WHAT: Sheehan and forty-one others appeared for the first trial on Nov. 16, 2005 before Judge Alan Kay. Assistant U.S. Attorney Catherine Hartzenbusch was the prosecutor. Sheehan, one of several defense witnesses, was represented by Jon W. Norris. Prior to trial, the government dismissed a few of the cases.

When the activist, who lost her son Casey in the Iraq War, tried to explain her intent on being on the White House sidewalk, the prosecutor objected and the judge sustained the objection, claiming that the charge imposed strict liability. After a two-day trial, Kay convicted Sheehan and the other defendants.

Sheehan v. United States, No. 05-MJ-00649, 2006 WL 3756349, was argued on Oct. 16, 2007. The appellant contested the district court’s judgment on five grounds: “1] The First Amendment challenge to the National Park Service Regulations was preserved at trial; 2] the NPS permit requirement is facially unconstitutional under the First Amendment, because it imposes strict liability on protective expressive conduct; 3] there is no evidence of appellant’s mens rea, because the Government prosecuted the case on the premise that strict liability applied and the Magistrate Judge excluded evidence that addressed appellant’s mens rea; 4] the evidence does not show that appellant was ‘demonstrating’ within the meaning of the NPS regulations; and 5] the evidence does not show that appellant knowingly demonstrated without a permit.”

The court rejected the challenge to the constitutionality of the regulations. But it acknowledge the unfairness of the trial: “We reverse and remand for a new trial, however, because appellant was convicted of a crime that does not exist and prevented from offering a viable defense.”

WHEN: January 11, 2008

WHERE: United States Court of Appeals for the District of Columbia Circuit

WHY: It was evident during the trial that Judge Alan Kay would convict Sheehan and her co-defendants. He kept emphasizing that the defendants were demonstrating without a permit.

Catherine M.A. Carroll argued the cause for the appellant. With her on the briefs were David S. Cohen and Jennifer M. O’Connor. Florence Y. Pan, Assistant U.S. Attorney, argued the cause for the appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese III and Michael Truscott, Assistant U.S. Attorneys. The Court of Appeals saw that the “appellant’s conviction is based on errors of law that eliminated the prosecutor’s burden to prove mens rea and barred the appellant from presenting a defense on that issue.” To be guilty of most crimes, a defendant must have criminal intent. Mens rea, in Latin, means a guilty mind.

On Dec. 21, 2005, Don Muller, Max Obuszewski, Perry Reeve and Lynn Robinson, also arrested on the White House sidewalk on Sept. 26, 2005, went on trial in U.S. District Court charged with demonstrating without a permit. They were convicted by Magistrate Judge John Facciola, and filed an appeal. The conviction was affirmed by U.S. District Court Chief Judge Thomas Hogan, who also affirmed Sheehan’s conviction.

Muller, Obuszewski, Reeve and Robinson then filed an appeal with the U.S. Court of Appeals for the District of Columbia Circuit. A brief is due Feb. 11, 2008, and the appellants are optimistic that their convictions will be reversed. It is unclear if the government intends to retry Sheehan, but Muller and the three others would relish an opportunity to argue their cases at another trial. The Bush administration has consistently tried to criminalize dissent, and the government has been prosecuting antiwar activists who are engaged in constitutionally-protected protests.
These appellants and other peace activists, very much intent on ending the Iraq War and bringing the troops home, will continue to speak out. The Court of Appeals decision will only give strength to members of the National Campaign for Nonviolent Resistance and other organizations which vigorously condemn the illegal war and occupation in Iraq.
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