A PERVERSION OF FUNDAMENTAL RULES

AND PROCEDURES OF CRIMINAL JAW

By Anabel Dwyer

Wherein 3 Nuns nonviolently and symbolically expose and inspect a U.S. First-strike 300 kiloton nuclear weapon on high alert, the Prosecutor and Court direct a guilty verdict for two felonies based on evidence not admitted, relevant to charges not brought and 32" of fence becomes our national defense.

Dominican Sisters Ardeth Platte, Carol Gilbert, and Jackie Hudson, held in a Colorado jail for seven months, still await a federal court’s epiphany - that U.S. threat or use of weapons of mass destruction is as illegal and criminal as anyone else’s. Even without such a revelation, the court and prosecutors surely must recognize their macabre Orwellian inversion and perversion of fundamental rules and procedures of criminal law. In the Bush America and with the courts’ acquiescence, war is peace and violence freedom. We need not succumb.

Springing the trap non-violently

As things stand we, thousands of supporters and lawyers of good will, still need to win the Nuns’ release from the jaws of manifest injustice. We cannot accept long prison sentences for sabotage and felony depredation of property. Even the stripped down trial testimony showed that the Nuns did not injure or interfere with the national defense or do any substantiated "damage."

The Prosecutor and Court Mightily Vexed

The Nuns “crimes” revealed that we in the U.S. accept rule by our own “evil tyrants who use weapons of mass destruction and ignore international law.”

Even more shocking to the current “might makes right” school of “law,” the Nuns showed that we could nonviolently accomplish complete nuclear disarmament one weapon at a time starting with open declaration and inspection.

Measured and legal acts of Non-violent and symbolic resistance to threat or use of nuclear weapons

Calling themselves “Sacred Earth and Space plowshare 2002,” the Sisters donned hazard suits with “Disarmament Specialists” printed on the front and “Citizens Weapons Inspection Team” art the back, in the early morning of October 6. 2002. They cut one link in two chains and entered the Minuteman III, N-S nuclear missile silo site in a farmer’s field in Colorado. In an act of symbolic disarmament, they poured their blood in the form of six crosses on the silo cover and tracks. They carefully lowered 32' of the perimeter fencing to expose the ongoing crimes of threatening to use this weapon.

The Nuns brought proof of their research and carefully laid it on the silo cover. Because of its vast heat, blast arid radiation (20x the Hiroshima bomb) and its first-strike and high-alert status, any threat or use of the particular 300 kiloton Minuteman III, N-8 nuclear missile constitutes a war crime, crime against peace, crime against humanity and genocide as defined, by the U.S. criminal code, treaties and the rules and principles of humanitarian law.

The Sisters sang a liturgy and prayed in shock and awe that the beauty of God’s earth and space be preserved for generation to come. An hour later, 21-year-old Air Force guards arrived and local authorities arrested them.

The Nuns win even the Prosecutor’s and Courts game

At the trial in April all the Prosecutor’s Air Force witnesses testified that the Nuns in no way interfered with or harmed the “national defense” even with the Court’s definition of “national defense” that includes legal” threat and pre-emptive use of this horrific weapon of mass destruction. The fencing the Sisters lowered was easily replaced with fencing in stock by Air Force staff who regularly repair perimeter fences. In reality the actual “harm” the Nuns did was no more than that routinely done by elk and tumbleweed.

But the jury convicted anyway. Here’s why...

1. Overcharging: After state charges were dropped, the federal prosecutor got the grand jury to indict for felony depredation of property with an unsubstantiated FBI allegation of $2000 worth of undocumented “damage.” The “complete” grand jury transcript given to the Nuns shows that a sabotage charge could not stand. Sabotage looks like a gratuitous greater-included offense to scare these nonviolent Nuns with a 20 year felony perhaps in case the Prosecutor could not prove $1000 worth of damages.

2. Enter the Defense Team: The Nuns asked the help of attorneys expert in civil resistance to nuclear weapons, criminal matters in general and the laws of war that prohibit any threat or use of this weapon. The defense team included Walter L. Gerash, Susan J. Tyburski, Scott Poland and Anabel Dwyer. We filed numerous and fully documented Motions to Dismiss both the charges. These Motions were supported by the Verbatim testimony of Mayor Takashi Hiraoka of Hiroshima and Mayor Icco Itto of Nagasaki before the International Court of Justice, the International Court of Justice Opinion on the Legality of Threat or Use of Nuclear Weapons and technical declarations by nuclear weapons experts including Robert Aldridge.

The Prosecutor filed a Motion to prohibit any defenses. At the Motions hearing distinguished international law professors, Francis A. Boyle and Ved Nanda, testified to the illegality and criminality of any threat or use of this particular Minuteman III under US arid international law and the reasonableness and right, duty or privilege of the nuns’ acts in light of the known effects of this weapon and the current US policy to use nuclear weapons preemptively.

3. The Court as Prosecutor: The Court’s pre-trial order prohibited the Nuns from raising any affirmative defense. The order was based on charges not brought - trespass, vandalism and political protest. The Court thus canceled the basic requirements of notice of the charges and relieved the Prosecutor of his burden to prove all elements of the charges beyond a reasonable doubt.

The Court relied on inapplicable cases and inaccurate dicta and its own quoted-out-of-context experts. The Court thus relied on “expert witnesses" against the Nuns whom the Nuns could not cross-examine.

While not addressing the fact or substance presented in the Nuns’ Motions to Dismiss and the Motions hearing, the court dismissed the defense experts as “mavens” and prohibited any defense expert fact or law testimony at trial. Most bizarre was the Courts finding that the Nuns had no “standing” to raise U.S. violations of the laws of war in a criminal proceeding involving alleged sabotage and depredation against a nuclear weapon whose threat or use plainly violates the laws of war in any circumstance.

4. Denial and Non-Evidence Equals Whitewash not Proof: The Nuns decided to go to trial in spite of the Court’s pre-trial order because the Prosecutor's case for both charges was non-existent. At trial, the Prosecutor proudly showed how ready the Air Force remained at all times to unleash the Minuteman III within 15 minutes. ‘the Air Force boasted that the Nuns interfered with nothing certainly not "the national defense.” The alleged to the fence was not substantiated in any way and the blood poured in crosses did no damage.

5. Manufacturing Conviction Outside Basic Evidentiary and procedural rules:  The Court denied the Nuns’ motion for a directed verdict of acquittal and began baldly engineering conviction. The Court let the Nuns testify without advising them of their right not to and simultaneously, against its own order, “gainsaid” the Nuns any defense. The Court had no idea what magnificent witnesses these women make and the thoroughness of their knowledge of the law and facts of the ghastly weapon before them. Their acts came across in their own words as reasonable, beautiful, exemplary, courageous and, in a free society, legal.

6. The Jury's responsibility: We were hopeful of acquittal, even though we knew the jury contained many who would think the Nuns too extraordinary to believe and several who believed with the judge and prosecutor that their Christian duty was to fulfill the prophecy of Revelations. We thought the jury could not be-damn the Constitution and presumption of innocence of the Nuns in favor of presumption of innocence of the Minuteman III.

7. The Court took no chances for acquittal: The Court’s last minute gambit was to instruct the jury not to consider any of the Nuns’ evidence going to reasonableness of their acts, their lawful intent, or the law that prohibits any threat or use of the Minuteman III. The Court thus turned sabotage and depredation into strict liability crimes, when they are specific intent crimes. Then prosecutor and court insisted to the jury that sabotage was not sabotage but a simple destruction of property crime without any proof of damages necessary and without any proof of intent to destroy, injure or interfere with the national defense. Even under their “anything-goes, including threat or use of nuclear weapons” definition of “national defense” at least one juror had to be “persuaded” that the Nuns committed sabotage by lowering 32 feet offence. The Prosecutor did not substantiate any allegation of alleged monetary cost of alleged “damages.” And lest that proved insufficient, the Court repeatedly warned the jury to “cooperate” that it must follow his instructions under penalty of perjury.

The Nuns should still win under the Court's Rules

Carol, Jackie and Ardeth and their lawyers filed 3 post-conviction Motions for: Acquittal (there was no evidence of sabotage or substantiated damage); New Trial (based on numerous fatal errors of both substantive and procedural law); and Mistrial (for the Clerk’s illegal removal of the jury forewoman during deliberations while one juror at least was holding out.) All were denied.

How dare three Nuns contest the absurd notion that the law of the free in 21st century US amounts to that which can be enforced by grossly violent force. The Nuns’ case looks for all the world like an all-too illustrative microcosm of the failure of US and world citizens, the U.N., and the free press to effectively stop the grossly illegal and criminal US. invasion and occupation of Iraq. This comes not only from our delusional idea that our weapons and tactics of mass destruction are good, ”clean,” and precise.

The Nuns’ case also shows that our court system is tragically embedded in a dead-end “'national-security” system that relies on fanciful legitimation of the most heinous weapons of mass destruction nuclear weapons. As a result, we deny the reality of their effects, encourage their proliferation, and buy into more of them by the billions of dollars every year. Most alarmingly, we have no checks on the real readiness to use them. We Americans and every country in the world do not need to succumb to nuclear blackmail by our own government.

Effective rule of law based on agreement not force.

The Nuns revealed something even more dangerous to our violence-based domestic and foreign policy. They revealed by their measured, nonviolent and symbolic civil resistance that sensible nonviolent alternatives to the use of force exist. These amount to actual solutions to the problems of threat and use of weapons and tactics of mass destruction including exposure, inspection and systematic nonviolent disarmament. The Sisters reveal that we all have a responsibility to ourselves, humanity and future generation to act positively.

When we secure the Nuns’ freedom we will have insisted on maintaining adherence to the hard fought democratic principles, rules and procedures of law. Many of us know that any successful America seeks fundamental human rights for all, adherence to humanitarian law, treaties and our Constitution and fulfillment of our obligations for complete nonviolent nuclear disarmament.

We solve problems by fair and just rules already on the books while the Court and Executive flout the law.

One solution is for the Court to enter a Judgment of Acquittal but it had many opportunities before and instead ensured conviction through blatantly fatal juridical errors. The Nuns may choose to appeal all the way to the Supreme Court, but the federal courts including the Supreme Court, even without the further packing by the Bush administration, already seem blindly bent on justifying or denying US illegal and criminal threat or use of nuclear weapons.

Declare Ardeth, Carol and Jackie National Treasure and use their good-faith witness and example to demand their freedom and proceed with complete nuclear disarmament.

Perhaps our only real alternative is concerted demand for the Nuns’ release and nuclear disarmament consistent with current law. We can accomplish this through organizing a new round of massive nonviolent resistance to threat or use of any nuclear weapon everywhere and to demonstration of the many real alternatives to security. We can begin again by teaching of the dire economic, environmental and human costs of nuclear weapons through citizen inspections of all of the U.S.’s 8000 nuclear weapons, elimination of current development and research funding for “new and improved” nuclear weapons. Proceeding with multilateral negotiations for complete nuclear disarmament remains essential for clean land, water and air and sufficient funds for schools, health care, housing and transportation.