Say there’s a protest in your town, some windows get broken, a large group of people are indicted on rioting and conspiracy charges, the court appoints conflict-free counsel, and the next thing you know you’re sitting in your office across from a person who—best-case scenario—cares enough about the human condition to raise her voice for a better world. What now?
The first thing you will want to do, and admittedly this is anathema to many attorneys, is think about your media strategy. A protest where a lot of people are arrested is high profile. The media immediately clues in to the potential First Amendment issues, and then almost as immediately starts following the government’s lead and calling your client a rioter. It makes no difference that the protest was concerning a legitimate grievance that bothers most thinking people in the country if, by the time you get to trial, the local media has been talking about the “rioting anarchists” for the last year. There’s a truism that the story of the battle (actual facts) mean little in contrast to the battle of the story (the narrative.) You do your client a disservice by remaining silent and letting the state or government control perceptions of what happened that day. A simple press release outlining the importance of First Amendment rights implicated and the presumption of innocence will not only help your client’s cause but will keep morale high so that co-defendants don’t start to plead out. As much as lawyers are trained only to think about the interests of their client, you do have to spend some time thinking about collective strategy.
On that note, quickly ascertain the nature of your client’s and your own relationship to the other attorneys and defendants in the case. Be the one with the courage to write them a frank and honest e-mail saying that you are all a lot better off working together—your client will be interested in solidarity with the other co-defendants—but that either way you’d respectfully like to determine what the other attorneys’ positions are with regard to collaboration and joint defense. I cannot emphasize enough how much time and energy this will save you and your client. If the other attorneys are interested, then immediately begin assigning issues, developing a group strategy, and setting up regular conference calls. If the other attorneys are uninterested or nonresponsive, then move forward and let them catch up with you. The worst situation, which is unfortunately most common, is a middle ground where you informally collaborate with other co-defendants, a kind of unproductive limbo that leads to redundancies, inefficiencies, and, in group trials, where severance is rarely granted, stressful situations that the state or government can exploit by getting attorneys and co-defendants to start pointing fingers at each other. You do well strategically, legally, and even psychologically to achieve terra firma with regard to whether you are engaged in joint defense or are walking this road alone with your client.
The Indictment and Strictissimi Juris
Your first strictly legal step on this journey will be to attack the indictment. The indictment is going to be maddeningly vague. It will allege overt acts—rioters broke [fill in the blank] window at 12:52 pm—but will likely contain no specific allegations against your client. Therefore, immediately file a bill of particulars. Make the government show you exactly when the conspiracy formed and how your client allegedly took part in and furthered it. A thoughtful attorney will also file a motion to dismiss on First Amendment grounds. Let’s be clear: If the government has no direct evidence against your client, then they are going after her for her associations—what she knew, what meetings she attended, what she was wearing, all the way down to what websites she visited as well as likes and shares on social media. Your First Amendment sensibilities are going to be shocked by what the government tries to use as evidence in this case, which brings us to Federal Rule of Evidence 801(d)(2)(E) and the doctrine of strictissimi juris.
One of the main reasons that the government has charged your client with conspiracy is so that it can avail itself of the co-conspirator hearsay exception at 801(d)(2)(E). Say there are 200 co-defendants. Co-defendant 21 sends a text message to Co-defendant 168—this text message is admissible against your client even if she had never met Co-defendant 21 or 168. Co-defendant 4, being a citizen journalist, records the protest on his cell phone and posts it to his YouTube channel. This video is admissible against your client. Co-defendant 194 collaborated with independent media to make an angry website about the environmental crisis and gutting of the Environmental Protection Agency—this could be admissible against your client, especially if your client viewed or “liked” it, which the government will argue is an adoptive admission. The bottom line is that everything that’s out there about this protest—and there will be tons out there as protests today are mainly organized by social media—will likely be admitted against your client unless you proactively try to exclude it.
Along with the bill of particulars, you are going to want to file a motion—sometimes called a James Motion, depending on jurisdiction—that compels the government to disclose what it intends to admit per the barn door that is 801(d)(2)(E). Even if you lose, you’ve got to educate the court into pushing the government to disclose what it intends to admit at trial. Veterans of conspiracy trials know the helplessness of sitting there as this minimally probative and grossly prejudicial evidence is presented to the jury. Your focus has to be on stopping it, arguing against it, chipping away at it via limiting instruction, and at the very least objecting to it at trial in a way so that it doesn’t enter into the jury’s mind unfettered.
Second, file a motion regarding the applicability of strictissimi juris. The doctrine militates that when constitutionally protected First Amendment activity, such as association and expression, are threatened by a conspiracy indictment, then direct evidence is required for conviction. (See Steven R. Morrison, “Strictissimi Juris,” Alabama Law Review, 2015, 67:1, at 247–298.) Strictissimi juris can inform all levels of the adjudication—probative versus prejudicial, admissibility issues, overview evidence—but is best cognized as a First Amendment jury instruction strongly charging the jury that guaranteed activity such as going to meetings or posting political expression to social media cannot be used to substantiate a conviction. Strictissimi juris guides the entire trial by directing jurors to seek specific and direct evidence against each defendant so that their deliberations are framed by questions of weight and sufficiency.
You obviously want jurors who require direct evidence, but you also want jurors who aren’t hostile to the views of your client. In most jurisdictions today, you are allowed to do social media research on the jury pool (e.g., Facebook, Twitter, Google searches). Verify the rules of ethics in your jurisdiction. I would argue that in a case where protest and political beliefs are at issue—and they always are in these cases—it is malpractice not to assemble a team (the “jury strike force”) to perform social media investigation on the venire. There will be lots of smart people in solidarity with your client’s case who can be an asset to the sole practitioner working without an investigator or large staff. Use them. Put together eight or nine people to take the venire list, search it, and report back to you prior to jury selection. Let’s be real: You can’t have a Trump supporter determining the fate of anti-Trump protesters. And vice versa. Second, if your jurisdiction does not have attorney-conducted voir dire, move for it. (If it does, seriously prepare for it. It’s a cliché, but this type of case more than almost any other type of case is decided at jury selection.) You have got to look into the eyes of potential jurors when they discuss their opinions about protest. Americans are trained to say that they believe in the First Amendment and the right to protest, so you’ll get almost nothing out of a questionnaire. You must see the reactions on their faces when words such as “anarchy,” “radical,” or “environmentalist” are thrown around.
And don’t let the prosecutor throw around those terms in the first place. File a motion in limine to keep out supercharged political monikers that the government will use to label your client. If the jury starts to think of your client as an activist stereotype and not a sensitive, complex person who cares about the human condition, then frankly it’s pretty much over. You have got to keep humanizing your client to the jury, which means really getting to know them. Your opening argument should not start on the day of the rally in question, but with the experiences that led your client to feel the need to raise her voice. Ours is a troubled time when many people are thinking that voices need to be raised. Don’t lose the relevant context. I wouldn’t advise that you overly politicize the trial because a good prosecutor can use this against your client—“So you were really, really angry, weren’t you?”—but at least a few jurors will share your client’s worries about corporate power, environmental destruction, or the societal status quo. Second, civil disobedience, protest, and criticism of authority are an integral part of American history. There is a long, proud tradition of which your client is a part: the civil rights movement, abolition, protection of natural resources. If your client took a bus to the protest, talk about how the Freedom Riders rode the busses. If she was arrested protesting against discrimination, talk about suffrage. Our best moments as a country have arisen from protest and dissent. The First Amendment is the First Amendment for a reason. The founders understood that free expression and association are the catalysts that drive a nation’s evolution.
Fighting for All Our Rights
Which leads us to a final point: There needs to be a civil disobedience exception in our law. By the time you get to trial, the government will have subpoenaed Facebook accounts, subpoenaed servers to see who viewed anti-establishment websites, infiltrated meetings. It’s both literally and figuratively chilling, the government drilling down to the core of our most fundamental rights. Regardless of whether you are a libertarian, centrist, socialist, or none of the above, you don’t want to live in a country where people think twice before checking out a book from the library. Mass prosecution of protest can make for a lesser country. It makes citizens fearful of engaging in dissent. Go to a protest on a Saturday morning, someone you have never met allegedly does something illegal, and you could be held responsible for it. Easier just to go to brunch.
By carving out a civil disobedience exception, we create a space in our law where legitimate, nonviolent civil disobedience becomes a factor in the court’s assessment, or, at the least, is not treated in the same way as “crime.” All the concerns usually concordant with criminality—recidivism, danger to society, deterrence—are not extant with the nurses, teachers, and students arrested rallying against war profiteers, corruption, and the buildup to war. A person who studies the issues and courageously redresses their grievances—i.e., a citizen—is not the same as a guy who just picked up his fourth drunk driving charge.
By arguing for a civil disobedience exception, you send a message to the courts, the culture, and, most importantly, your client, that she is a person of conscience and not a criminal, which has a salutary effect on the health of our First Amendment. Citizens would know that if their intentions and actions are legitimate, then the court will protect their rights so that they will not have to live with the burdens of felony indictment and potential conviction merely for engaging in dissent. Unless there is direct evidence of illegality, in which case your client should be a priori ready to accept the consequences, American citizens should not only not be charged with felonies for attending protest, but not even think of the words “crime” and “protest” in the same breath. I hold this to be true not because of any sympathies I might have, but because it makes for a better country.
The law must be maintained, but so should our founding principles. Have a look at the Declaration of Independence. Perhaps, as you begin this case, find a place in your office where you can see it from time to time. It will prove a fierce remembrance, as you go down this difficult road, that the likes of Jefferson, Paine, and Franklin are with you. And that you are not alone on those late nights—far from it—but part of a powerful tradition of resistance to power that runs through our national soul:
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.