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Agoni-zomai: Motion for Jury Trial, "US v Louis J. Vitale"

Trial by Jury--Jesus never got one, still, how did Jesus resist during his trial? How is the Gospel of Nonviolence attesting against Crucifixions of our time? As a follow up to my article Feb. 22 "Disarmament Learning with Fr. Louis Vitale OFM" who was arrested 350 times standing up against war, nuclear weapons and drones, 2009-2011 spent 17 months in prison for opposing torture training at Ft. Huachuca, AZ and Ft. Benning, GA. 

In recognition of Jesus' defense "If my kingdom were of this world, my attendants would be fighting to keep me from being handed over" (Jn 18: 36), the followers would be fighting (Greek agoni-zomai, struggling with all their physical and mental energy like athletes) or with soul-force?

I present legal work that demonstrates the right to a trial by jury. As food for thought this Good Friday, while we mourn the crucified--I hope in a small way to honor the tradition of trial resistance.


A new DePaul Peace Award to the Kings Bay Plowshares received coverage in the NCR online here. The Award honors gospel nonviolence...

While members of the Dorothy Day Catholic Worker and Jonah House focused on the Pentagon with a litany to the Crucified, in California, the Ecumenical Peace Institute hosted this morning a virtual Good Friday event "Swords into Plowshares: Lawrence Livermore Laboratory" with reports by Marylia Kelley and Jackie Cabasso, and prayer led by Reverend Michael Yoshii.

The legal portion of a direct action was dramatized recently by "The Trial of the Chicago 7." While this year marks the tenth anniversary of my serving 6-months, I feel so blessed that Fr. Louis decided to manifest his conscience a fourth-consecutive time in 2010 so that his experience would overflow and he could break waves with Stephen Hyles, only then freshly seated to the bench of Federal Magistrate, an office he still holds.        

The hero of the court action was here the motion author, Atty. Ruth O'Neill, who served as attorney for Fr. Vitale. I have written to ask whether the effort to persuade was felt as against the grain, the pushing to be up hill--as the fact is I halt over the Blanton case her memo cites and try to grasp its significance on the plane of jurisprudence, which is argued to be narrow. In the ten years since, perhaps case law has made more of the question at hand, whether the protestor who confronts government is entitled to a jury trial--Stephen Hyles dismissed the motion as he had the discretion to do because the government had charged us with misdemeanors. We know that in plowshare cases, the Transform Now case was taken before a jury--as the charges included sabotage, and penalties ascribed under Terrorism--subsequently dropped on appeal, while Megan Rice, Greg Boertje-Obed, and Michael Walli by then had been serving two years and more. 

The Kings Bay 7 plowshares. the seven Catholics sought and received a jury trial. 

Bill Quigley, law professor at Loyola University writes: 
The US Supreme Court decided some time ago that the right to a jury trial, even though it is enshrined in the constitution, does not apply unless people are facing the prospect of more than 6 months in jail.  The SOAW cases were mostly misdemeanor trespass cases punishable up to 6 months in jail and thus not entitled.  Stupid rule.  Defendants wanted jury trials because the Judge on these cases was so uninterested in any of the testimony about the SOAW that conviction was automatic.  Thus the requests for jury trials - all denied.
Two. My recollections of Fr. Louis?  I represented him more than once in GA and once again in AZ with Fort Huachuca trespass.  He was a wonderful combination of deep passion for justice and just as deeply funny and light and non-judgmental of others- a much too rare combination.   The only bad thing I can say about him is that he is a horrible driver.  Drove my wife and I around SF one night telling hilarious stories but we were certain we would not survive his disregard of everyone and everything else on the road. 

Ruth O'Neill, Fr. Louie, thank you for your contribution, against the grain, as I come to see it with new eyes, as it expresses moral outrage at the evil of torture and its enabling institutions. While speaking in the language of the court, you make an appeal to the conscience of the judge that given the kind of confrontation with government, only a jury trial would sufficiently protect the defendant's right of speech.
United States Of America
v.                                                                         Case No: 4:09-po-3-GMF
Louis J. Vitale,


COMES NOW, Louis J. Vitale, by and through counsel, and respectfully moves this court for a jury trial in this case. For the reasons set out in the accompanying memorandum, undersigned counsel requests that this Court allow a jury to decide these matters both as a matter of right and a matter of discretion.

Respectfully submitted,
__/s/__M. Ruth O’Neill, Attorney at Law


Memorandum in Support of Motion for Jury Trial

    Trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.

            Duncan v Louisiana, 391 US 145, 88 S Ct 1444,
20 LEd2d 491 (1968) at1451.

"I consider [the trial by jury] as the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution."

Thomas Jefferson to Thomas Paine 1789 (15 The Papers of Thomas Jefferson 269 (Julian P. Boyd, ed. 1958) (cited in Evan R. Seamone, “A Refreshing Jury COLA: Fulfilling the Duty to Compensate Jurors Adequately,” 5 NYU J Legisl. & Pub Policy 289 (2001-2002) fn 1.)

The Sixth Amendment to the US Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...”
The accused asks this Court to allow this matter to be tried by a jury, either as a matter of right or as a matter of discretion.
In April 2004, US District Court Judge Adaleberto Jordan in Miami, granted a trial by jury to Greenpeace in a federal criminal prosecution for a petty offense charged by the government against the advocacy organization. US v Greenpeace, USDC, Southern District of Florida, Miami Division, Case 03-20577.
[See decision at]
The federal court exercised its discretion to allow the matter, involving politically controversial civil disobedience, to be decided by citizens in accordance with the letter and spirit of the Sixth Amendment to the Constitution.
The court ruled:
There is something to be said for viewing the jury as a function (or consequence) of the right to self-governance, and I cannot see anything wrong with having members of the community determine whether the government can prove the charges against Greenpeace beyond a reasonable doubt. (Pps 13-14 of the opinion.)
US District Judge Jordan then went on to quote Alexis de Tocqueville:
“The man who judges the criminal is really the master of society. Now the institution of the jury places the people themselves, or at least one class of citizens, on the judge’s bench. The institution of the jury, therefore, really puts the direction of society into the hands of the people or of this class.” Alexis de Tocqueville, DEMOCRACY IN AMERICA 260 (U. Chicago Press, 2000).
There is no doubt that this court clearly has the discretion to have this matter tried by a jury. “Nothing in the Constitution...precludes the judge from granting a jury trial as a matter of discretion.” Ross v Bernard, 396 US 531, 550 (Stewart, J., dissenting on other issues). Though the United States Supreme Court decided that defendants who are subject to federal prosecution for crimes which would result in a sentence of up to 6 months in prison and a $5000 fine, are not automatically entitled to a trial by jury, Blanton v City of North Las Vegas, 489 US 538, 541 (1989), defendants in this matter request a trial by jury.
This request for a trial by jury is of particular importance because these matters involve significant issues of political protest against government action. As Justice Kennedy has observed, “the primary purpose of the jury in our legal system is to stand between the accused and the powers of the State.” Lewis v. US, 518 US 322, 335 (1996) (Kennedy, J., concurring in the judgment). These matters are criminal charges arising out of incidents of non-violent political protest against governmental action and policy to challenge the morality and legality of the continuing operation of the School of Americas, recently renamed the Western Hemisphere Institute for Security Cooperation (hereafter SOA/WHINSEC).
Defendant protestors contend that the SOA/WHINSEC has a history of training soldiers from other countries in methods which are illegal, immoral, and contrary to the laws of international human rights. These arguments are detailed in the accompanying memoranda supporting other motions in this matter and will not be repeated here. The government obviously disagrees with the protestors and considers these matters simple criminal charges.
Disputes over policy between government and citizens have been an integral part of the development of this country. The political protest of the Boston Tea Party was, in the minds of the duly constituted authorities at least, merely lawless action. As were civil disobedience actions challenging slavery, promoting the rights of women to vote, and the civil rights struggle. The actions of the individuals charged in this matter are similar to the actions taken by those who opposed the legal tax on tea or the laws prohibiting women from voting or the duly promulgated laws of segregation.
As the US District Court observed in the pre-Blanton decision of US v Thomas, 574 F. Supp. 197 (D.C.C. 1983) there can be special circumstances supporting a request for a jury trial in a protest case when there are, as here, “First Amendment implications.” at 198.
The accused ask for a jury trial on three grounds: Article III, Section 3 of the U.S. Constitution; the Sixth Amendment to the U.S. Constitution; and the history of the right to a trial by jury as set out in a prior Supreme Court decision in Duncan v Louisiana, 391 US 145, 88 S.Ct. 1444, 20 L Ed 2d 491 (1968).
Article III, Section 3 of the U.S. Constitution specifically states that: “The trial of all crimes, except in cases of impeachment, shall be by jury.”
The Sixth Amendment to the Constitution specifically states that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...”
While the U. S. Supreme Court generally approved the prosecution of petty crimes without the requirement of a jury in Duncan v Louisiana, 391 US 145, 88 S.Ct. 1444, 20 L Ed 2d 491 (1968), the Supreme Court did recognize the particular historical and political importance of a right to a trial by jury when individuals are confronting the government. The court traced the special nature of trial by jury to the English system back to, and possibly even before, the Magna Carta.
The U.S. Supreme Court started outlining the importance of the trial by jury by quoting from the 1889 Commentaries on the Laws of England by Blackstone:
“Our law has therefore wisely placed this strong and two-fold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince: and yet this power might be dangerous and destructive to that very constitution, if exerted without check or control, by justices of oyer and terminer occasionally named by the crown; who might then, as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have, with excellent forecast, contrived that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion.”
Duncan, supra, 1448-1449.

The Supreme Court goes on to note the importance of the right to a jury to the American colonists and in the creation of the nation, in pages 1449-1450:
“Jury trial came to America with English colonists, and received strong support from them. Royal interference with the jury trial was deeply resented. Among the resolutions adopted by the First Congress of the American Colonies (the Stamp Act Congress) on October 19, 1765--resolutions deemed by their authors to state 'the most essential rights and liberties of the colonists.”
The First Continental Congress, in the resolve of October 14, 1774, objected to trials before judges dependent upon the Crown alone for their salaries and to trials in England for alleged crimes committed in the colonies; the Congress therefore declared: 'That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
The Declaration of Independence stated solemn objections to the King's making 'judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries,' to his 'depriving us in many cases, of the benefits of Trial by Jury,' and to his 'transporting us beyond Seas to be tried for pretended offenses.'”

Later in the opinion, the Duncan court again underscored the importance of trial by jury when a person is, as here, confronting their government. See the following quote from page 1451:
“The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.
Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the commonsense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power--a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States.
The (jury trial) clause was clearly intended to protect the accused from oppression by the Government.” Singer v. United States, 380 U.S. 24, 31, 83 S.Ct. 783, 788, 13 L.Ed.2d 630 (1965). 'The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.' P. Devlin, Trial by Jury 164 (1956).”

The legal history set out by the Duncan court holds the right to a trial by jury out as one of the bulwarks of freedom, a much more fundamental right than one which switches on and off like a mathematically calculated switch. Undersigned counsel has found no decision by the Supreme Court which directly addresses the issue of whether indisputable political protest which could result in incarceration of up to 6 months should be extended the fundamental right to a trial by jury.
The importance of the jury when citizens challenge their government cannot be overstated. Judges are not the same as juries. Indeed, protection against overbearing and oppressive judges was one of the main arguments of the proponents of jury trials when the Bill of Rights were enacted. [Charles W. Wolfram, “The Constitutional History of the Seventh Amendment,” 57 Minn.Law Rev. 639, 670-671 (1973).]

Commentators agree that the purpose of the jury is to give the average person the opportunity to challenge governmental misconduct. [William V. Dorsaneo, “Re-examining the Right to Trial by Jury,” 54 SMU L Rev 1695 (2001).] This is particularly important to protect the citizen from oppression by governments. As Dean Pound said:

“The will of the state at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers.” [R. Pound, Law in Books and Law in Action, 44 Am.L. Rev. 12, 18 (1910) quoted in note 32 of US v Dougherty, 473 F2d 1113, 1130 (DC Cir 1972).]

Therefore, given the circumstances of this case and the reasons set out above, undersigned counsel requests that this Court grant the motion for trial by jury both as a matter of discretion and of right.

Respectfully submitted,

__/s/__M. Ruth O’Neill, Attorney at Law
Attorney for Fr. Vitale


I hereby certify that on January 21, 2010, I electronically filed this NOTICE OF ATTORNEY APPEARANCE with the Clerk of the Court using the CM/ECF system.

__/s/__M. Ruth O’Neill
Attorney for Defendant


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