Oct. 31, 1996: Four of the five Katuah gathering defendants found "Guilty as charged" in the first phase of the case.
The case of United States v. Spirit Owl, John Johnson, Uncle Bill, Laughing Man and Stephen Wing-- accused of being "leaders" of the 1996 Katuah Summer Solstice gathering-- began with a hearing about the facts of the case, with constitutional issues scheduled afterward. Sean Devereaux, a local attorney, represented Gallagher and was appointed by the court (at our request) to represent the three who qualified. Brian Michaels of Eugene OR, a longtime gathering participant and civil rights attorney, represented Wing.
Tues. Oct. 29: First we heard testimony from Wilt Stribling, LEO of the district where the gathering took place. Then we watched the video he took before, during and after the gathering, including the evening the officers came to cite the "leaders" (June 17). Like an honest cop should, he took care to document his own muddy tiretracks up our main trail to the site. His testimony showed the gathering attempting to comply with all his requests, moving a tarp, taking down a tent etc.-- all except for signing an application for a permit when the number allegedly reached 75. It also showed the lengths the officers went to, hiding in the woods, using binoculars etc., to keep a daily count. The defense asked Stribling if he was aware that other people, such as bear hunters, held regular gatherings of a similar size in his district. He was not.
Next we watched a Forest Service training video about enforcing the new regs, which differed in several respects (none considered "relevant," of course) from the way it was enforced in Pisgah Forest. Finally we saw a civilian video which covered the events of June 17 at a little greater length, plus a conversation between North Carolina chief LEO Malcolm Jowers and a Congressperson's aide. Jowers states on the tape that these regulations were written in direct response to losing the '88 Texas case.
Wed. Oct. 30: We heard testimony from Frank Roth, the regular Ranger in charge of the area of the gathering; a county sheriff's deputy on the National Forest detail; and NC's head technical advisor on special use permits testified. For the first time we found out that a permit had actually been drafted in anticipation of a signed application. After cross-examination, the prosecution rested. Devereaux moved for aquittal on the basis of the testimony so far, which was denied. Michaels then took a turn, and the constitutional issues began to come into play.
The magistrate, the Honorable Max Cogburn, while sympathetic to the gravity of these issues, stated that the regulations appeared constitutional to him, that the procedures used in Pisgah Forest appeared proper to him, and that refusing to sign a permit appeared to him a matter of form rather than substance. However, he said the same thing about the FS's insistence on a signature.
In a surprise move, the prosecution moved to drop the case against Stephen Wing-- apparently in hopes of removing Michaels from the case. No one objected. Michaels, however, was allowed to continue as co-counsel; the magistrate made a point of complimenting him on his arguments several times. "Always happy to hear what Mr. Michaels has to say," he said once.
On the third day the remaining defendants testified. All four did a fine job on the stand and earned a collective compliment from the magistrate as well. Wing followed. Michaels' final question to him was rather broad: "Is there anything you want to add?" The magistrate overruled an objection and heard him out. The defense then presented a local Hot Springs man who testified to the many groups of 75 or more who use the National Forest in Roth & Stribling's district without permits, including the notorious bear- hunters. At one point the magistrate felt moved to lecture the prosecutor about how cowardly modern bear-hunting is. Then a wildlife biologist who was called in to survey the damage to the gathering site testified that it was minimal. Of course, the environmental impact of the gathering-- and the fact that it went away completely after cleanup-- was ruled totally irrelevant to the case.
The defense next called its secret weapon: secret because we didn't even know it existed until Ray Johns, the technical expert on permits, mentioned the draft permit he had prepared "just in case." Michaels called Johns back to the stand and had him read a few clauses of the "contract." These included holding the permit- signer 100% liable for everything that happens at the event-- even though the regulation itself says the signer is an "agent" who bears no legal responsibility; holding the government exempt from any liability at all; and revoking the permit because of "objectionable conduct" or simply at the "discretion" of the Rangers. All of this will hopefully help to prove in the next phase of the case that the permit itself is unconstitutional, and therefore a signature on an application is moot.
The prosecution tied up its case by contending that the testimony of each defendant amounted to a "confession" that they knew about the regulation and broke it anyway-- an alleged case of "civil disobedience." The defense countered with a brilliant series of arguments that the prosecution's case was never proven "beyond a reasonable doubt." The key points were the lack of intent to commit a crime, the total lack of any documentary evidence whatsoever that 75 people were gathered, and the fact that three of the defendants were picked for exercising their constitutional rights-- Johnson for writing down the officers' names, Uncle Bill and Laughing Man for speaking with them-- and Spirit Owl, the fourth, simply because he lived nearby and was first to be questioned about the gathering by Stribling.
These arguments proved the defense's case beyond even the shadow of a reasonable doubt. Cogburn seemed to deeply regret having to ignore that fact in his ruling of "guilty as charged." Evidently he was unable to convince his direct superior, the district judge, that the facts of the case should overrule the political consequences of an aquittal (though we got the sense he tried). The district judge is notoriously conservative, so that's no surprise.
Somewhat delirious with victory, prosecutor Les Ascik invoked the spirits of Thoreau and St. Thomas Aquinas in demanding a fine of $500 apiece, for the sake of completing the "dignity" of their "civil disobedience." The magistrate imposed a $50 fine or 8 hours of community service for the Hot Springs Ranger office, plus a $10 fee. When the Rangers objected that they had nothing for the defendants to do, Cogburn said in that case the $10 fee would be enough. Most likely, they'll come up with something if any of the defendants chooses community service.
But the case still may be thrown out when the constitutional arguments are heard. This will take the form not of another hearing, but a series of legal briefs to the magistrate. The attorneys on both sides have 2 weeks to get their briefs together. If we lose that phase as well, the defendants still can file an appeal to the 4th Circuit Court in Richmond, VA, which must be adjudicated before the sentencing-- and the legal precedent set by this case-- takes effect. Stay tuned.