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'Victories' only an activist could appreciate.

PORTLAN, Maine -- When federal Judge Gene Carter rejected the Prince of Peace Plowshares' defense of necessity and international law, it was a foregone conclusion that the defendants would, as in all but one of the 50 or so previous Plowshares actions, be found guilty.

On May 7, two hours after five of the six Plowshares activists had turned their backs on "a sham trial" and begun reciting the Gospel of John's call for love of neighbor, resulting in eviction from the courtroom, they were convicted of conspiracy and of causing roughly $28,000 in damage to the warship USS The Sullivans, in a protest against nuclear weapons. The six are awaiting sentencing. (See NCR, May 16.)

The legal victory was the state's. But the challengers of weapons that can vaporize millions -- the USS The Sullivans is capable of nuclear, chemical and biological attack delivered by low-flying Tomahawk missiles that circumvent or violate the international SALT Agreements -- could claim a few victories as well, inside and outside the courtroom.

The defendants were Stephen Baggarly, Philip Berrigan, Susan Crane, Mark Colville, Jesuit Fr. Stephen Kelly and Thomas Lewis-Borbely. Despite the court's restrictions on defense tactics, some of those on trial managed to speak out on essential issues.

Crane, for instance, alluded to the Nuremberg principles within the jury's hearing and asserted that damage to a destroyer made in violation of international law was not a criminal act, but an act to prevent crime. (A World Court decision last July 8 declared the threat of use of nuclear weapons illegal.)

After the prosecution had rested, Berrigan insisted that the jury address the question of why, in every Plowshares trial, "any talk of the weapons is excluded and suppressed." He concluded, "These weapons are judged lawless. They should be discarded. We have a right and duty."

The sole defense witness, Jesuit Fr. Daniel Berrigan, observed that the defendants were being "criminalized for following their faith," since "property is, precisely, what is proper to human kind." The Sullivans could not be considered property, he said.

Judge Carter, reprimanded last year for a judicial impropriety (see sidebar), disallowed the necessity argument to such an extent that he would not permit Dan Berrigan to cite Pope John Paul II's views on nuclear weapons.

But the frustration of the defendants was obvious. Shortly before the verdict was reached, the jury asked if it could consider the fairness of the trial, a little-known jury option called jury nullification. In a Vermont case 10 years ago and in a Liverpool, England, case last year in which four women were acquitted after doing 1.5 million pounds worth of damage to a plane destined for use in the East Timor genocide, juries set aside the law and the evidence and decided that the acts were justified.

The prosecutor urged Carter to answer no to the query. Carter, however, did not rule out the nullification option, but only advised the jurors that they should "decide innocence or guilt based on the evidence."

The jury question itself served to challenge Carter's celebration of the eminent justice of the American jury trial system when he seated the jury. Peter Weiss of the Lawyers' Committee on Nuclear Policy, an expert witness, called Carter's words hypocritical in the wake of the judge's denial of the necessity defense and the international law defense. Weiss, who lost family members in the Holocaust, likened denial of the necessity argument to hauling a 1940s German into court for breaking the law for discovering a concentration camp gas oven and dismantling it.

The trial brought out hundreds of supporters and filled the Maine press and airwaves with discussion. Six "Letters from the Cumberland County Jail to the Churches of Maine," keyed to the Sunday readings, were circulated to more than 200 southern Maine churches and synagogues for use in sermon preparation. Throughout the trial, Buddhist drumming outside the court windows brought the peace movement's objection to weapons of mass destruction into the courtroom.

Shortly before the trial's end, a dramatic people's indictment shifted attention from the scripted courtroom event. Yoga instructor James P. Reale of Block Island, R.I., scaled the courthouse wall and, standing on the canopy over the entrance, unfurled a "Prince of Peace -- Beat Swords into Plowshares" banner and read the principles of the post-World War II Nuremberg trials, which ruled that individuals as well as states could be held responsible for war crimes.

It took a Portland fire department cherry picker to pluck Reale from the canopy. He was charged with criminal trespassing.

John Schuchart, who once during a Kennebunkport church service had admonished President Bush for waging war in the Persian Gulf, was arrested for ignoring an order to cease praying on the courthouse steps.

After the verdict, 12 picketers, including Mary Donnelly, Sr. Ardith Platte and Sr. Carol Gilbert, were arrested and jailed for trespassing at the gate to the Bath Iron Works dry dock, scene of the initial action. On April 9, they did not contest the charge and, after having their concerns heard during legal proceedings, were sentenced to time served.

No sentencing date for the Plowshares was set. Sentences could run to 10 years for conspiracy and five for damage to the ship, with fines to $250,000 on each charge. The average time served for Plowshares actions has been between one and two years.

As the supporters finally scattered, Dan Berrigan's response to being silenced by the courts seemed appropriate: "God says to the prophets, `No one is going to hear you, but keep talking.'"

RELATED ARTICLE: The judge

PORTLAND, Maine -- On May 5 federal Judge Gene Carter told the jury chosen for the Prince of Peace Plowshares trial that they were the judges of the facts, and "my function is to act as judge of the law." In the recent past, some of Carter's peers have questioned how well he does that.

In 1993, Carter was accused of deciding a case before it had started. During a pretrial in-chambers meeting with lawyers to consider a complex banking case, he told them that in a previous, similar case -- in which he knew one of the defendants -- he'd dismissed it because he "could see right straight through it."

A Judicial Council review of Carter's behavior reprimanded him.

The Portland Press Herald, in a Nov. 15m 1996, editorial, took a much harsher view of Carter's behavior during that case and in incidents surrounding it:

"Is [Carter] simply forgetful or is he a liar? Some choice. Go with the former and you've got a man whose ability to remember important event ... falls far short of what we'd expect from a federal judge.

"Choose the latter and it's time to stop calling Carter `your honor.'"

--AJ

Bill Slavick is coordinator of Pax Christi Maine.
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Title Annotation:includes related article on trial judge Gene Carter; Prince of Peace Plowshares trial
Author:Slavick, Bill; Jones, Arthur
Publication:National Catholic Reporter
Date:May 23, 1997
Words:1129
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