When Law Becomes An Idol

By Steve Clemens  Feb. 3, 2014  Minnonista

Related Galleries> Photo Gallery: Frac Sand Protests (4/29/13)   

Thirty-five people were arrested for trespassing during a large protest against frac sand Monday morning staged at two separate locations in Winona.  April 29, 2013

Day 1 of Frac Sand Trial in Winona, MN

“I don’t have an opinion about it (frac sand mining)”
“I’ve remained neutral”
“It is ok to speak out – but you must do it within the law.”
“You have a right to speak out as long as you follow the rules.”
“I know nothing about frac sand … But I’m a mother and [I know] anyone can lie to me.”
“You have the right to speak out if you have something to say. … I don’t know much about the frac sand issue.”
“I have no opinion on frac sand one way or another. … There is a time and place to speak out – it must be controlled – but with breaking the law, something must be done.”
“People have a right to speak their minds but [you must] stay within the law.”
“I don’t know a thing about frac sand. … A lot of people across the river [in Wisconsin] are upset about frac sand. … It is OK to speak if you do it by the law and don’t cause a lot of trouble.”
“I don’t know the truth about frac sand … It does give people jobs … I am disturbed about what it is doing to the landscape – what is removed will never grow back. I don’t know about health issues.”
“I don’t read newspapers. … I know very little about frac sand. … I have never spoken out [in protest against anything] … If there was a law broken ….
“I have spoken out about prevention of child abuse. … I am interested in the legal process.”
“We need to become more independent regarding energy. It would give us jobs. … [Whatever is done must be] within the boundaries of the law.”
“I have no knowledge about frac sand, I don’t understand any of it. … I did go to a Women’s Rights protest in 1981 but I’d never do something like that now! … It made a difference.”
” I’ve seen the headlines in the newspaper but never read much about the issue.”

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There were 17 Winona County citizens called forth for the jury panel from which we would help select the six jurors (and two alternates) who would hear our testimony and decide our fates. Of the 35 arrested last April for nonviolently blocking frac sand trucks, 3 had the charges dropped, 2 asked to be tried in absentia, and several did not show up for court (no reason given but I know at least two of them are out of the country after our original court date in December was cancelled after a Judge recused herself). This leaves 21-23 defendants who now face the possibility of up to 3 months in jail and/or a $1000 fine and possible restitution for misdemeanor criminal trespass.

Time after time, prospective jurors were asked by Mr. McClure what opinions they had formed about the frac sand industry and whether they had ever engaged in public advocacy or public protest of any kind. Most of the panelists felt it was “OK” for others to give their opinion/protest but quickly added the qualifier: as long as you don’t break the law. It was as if the Martin Luther King holiday two weeks prior to our trial was completely out of mind. Dr. King, notorious for being arrested for civil disobedience, used his law-breaking as a way to expose the cancers of racism, materialism, and violence as a way to change both hearts (public opinion) as well as laws. His willingness to suffer the indignities of jail, derision, and violence provided a moral credibility to his campaigns for social change and justice.

We merely hope to follow in the path that he, Dorothy Day, Cesar Chavez, Dan Berrigan, and many others have blazed. How will our jury and Judge respond?

Day 2 at the Frac Sand Trial

Day Two: Prosecution Brings It’s Case

“This case is ONLY about trespassing. Being on private property, being asked to leave, refusing to leave. That’s what this case is about, nothing more!” The Winona Prosecutor,  Michael Flaherty kept his opening argument brief and moved quickly to his first witness, Dan Nisbit, owner of CD Corporation, a “bulk commodities company” which leases land from the City of Winona, MN in order to ship silica (frac) sand on barges down the Mississippi River. His operation can handle up to 120 truckloads of frac sand a day to fill two barges. When asked if he is aware of health risks associated with silica sand, he states, “I’ve seen some pamphlets”. He told the jury his employees do not wear any special respiratory equipment while work at his Port of Winona facility. He did say the protesters offered him donuts on the day of the arrest last April 29 and that we were “polite and respectful”. “They [the protesters] shut our operation down.”

Next on the stand was the owner of the sand washing facility across town where other activists also blockaded frac sand-hauling trucks. Robert Hemker also leases his property from someone else. He has a dredging operation for sand and gravel and equipment to screen, wash, size, and separate loads of silica sand that is trucked to his site from Wisconsin. His operation usually handles 80 trucks per day except in the cold season. When asked, he allowed that he uses 80 to 100,000 gallons of water in his sand washing operation but says he recycles and reuses almost all of it – maybe 1,000 gallons might be lost to evaporation or retained in the sand. When he was called to his site by employees who told him protesters were there, he described finding a “dinner table” set up by the scales used to weigh the sand-hauling trucks with food and “babies crawling on the ground.” He was offered food by the protesters (he declined) but agreed they were “peaceful and polite.” There was “nothing threatening; they weren’t thr
owing rocks or anything.”

The Deputy Chief of Police testified about how they run driver’s license or other photo ID through their computers to state-run databases to confirm the identities of those arrested. The next witness was an Investigator from the Winona Police department. Each of the following police or sheriff’s officers called to the two protest scenes were questioned about what they saw, what they did, and were asked to identify photocopies made of the driver’s licenses given to arresting officers. Some officers making the arrests did not hear the “warning” given by the officer in charge of the site. Other officers issued citations to people they hadn’t “arrested.” Some officers wrote the citations on site, others after persons were transported to the Law Enforcement Center (jail). Some were transported by the arresting officer, others were placed in a jail van and transported by others. All testified the demonstration and arrests were done peacefully and courteously. We were described as cooperative.

My arresting officer, Jim Sjoberg told the jury, “they were peaceful and nonviolent. Mr. Clemens said he respected me as a police officer.” One officer couldn’t remember which of the 3 men he processed he “arrested” and which he “cited” back at the LEC. To get a proper conviction for trespass, we need to be told we are on private property, asked to leave, and refuse to do so. If the arresting officer doesn’t give the defendant the warning and the opportunity to leave, the procedure is flawed – especially when a sharp lawyer like Richmond McCluer is sitting at the defense table. After his closing statement, I’m sure the Winona Police Department will order all their officers to take a remedial arrest procedure class for future mass arrests.

From this vantage point mid- trial, besides the 6 case dismissals already, I’m fairly confident up to one third of the remaining defendants are likely to be acquitted due to sloppy police work. We’d rather “win” on the basis of conscience and principle but acquittals for many might encourage other local folk to consider civil disobedience as one of their options.

Keep posted – tomorrow we remaining defendants get our chance to tell our stories to the jury. A jury of 7 women and one Catholic priest, ages 30, 41, 44, 52, 56, 56, 57, and 64.

Day 3 of the Frac Sand Trial

The Whole Truth? By Steve Clemens. Feb.5, 2014
Winona Frac Sand Trial, Day 3

When my name was called by Richmond McCluer, our defense attorney, I walked up before Judge Jeffrey Thompson and told his clerk I would “affirm” rather than “swear” the oath to ” … Tell the Truth, the Whole Truth, and nothing but the Truth, so help me God.” I affirmed – but was quickly reminded that in U.S. courts, that is virtually impossible if you want to fully inform a jury about your motives and intent.

I was actually the third witness as the defense started its case. Because of the large number of defendants ( even though after another case dismissal this morning winnowed it down to 19 from the original 35), I knew our time on the witness stand would have to be compact. But when one is facing three months in jail, you would hope for plenty of time to have your say.

Dan Wilson, a former member of the Winona Catholic Worker and one of the organizers for our nonviolent witness against the silica (frac) sand industry which took place last April was first on the stand. With his degree in Biology, we hoped he could describe some of the purported health risks of mining and transporting silica sand. He was able to state he was trying to protect the area from full-scale frac sand operation because the sand in the landscape serves as both an aquifer and filter for water which eventually empties into the Mississippi despite the energetic efforts by Prosecutor Mike Flaherty to pretend this should be just and open and shut trespass case. Despite his considerable knowledge about frac sand, he wasn’t able to share the truth as he knows it. When asked about his arrest, he replied, “It’s not something we enjoy but what we feel called to [do].”

James Johnson, another former Winona Catholic Worker, now a special education teacher here, told the jury about the myriad of public hearings and meetings he has participated in and attended in Winona County on the silica sand controversy. He was constantly interrupted by the Prosecutor’s objection but was able to express than he is “saddened that people are profiting of the pain of others.” He also stated that taking this action which entailed risk brought him joy.

I was next to take the stand after my public oath to tell “the whole truth.” No such luck. Time and time again objections to relevance were voiced by Mr. Flaherty. The Judge, cognizant of the long line of witnesses still to go, clearly wanted testimony truncated. Once I broached the Claim of Right provision in Minnesota’s trespass law, the trial came to a screaming halt. The Judge immediately ordered the jury out of the courtroom so the lawyers, judge, and I could attempt to resolve the impasse created when the Judge insisted that the only instruction related to Claim of Right he would give the jury must be related to a property interest. After I reminded him of my reading of the Brechon case ( involving Honeywell protesters) that defendants must be given wide leeway in explaining their motives and intent to a jury – even if that was a mistaken reason – but reasonable, in good faith, and nonviolent, the Judge relented and said he’d give me a maximum of two minutes to give my rationale ( but no legal arguments!) with the jury present. Needless to say, one cannot give ” the whole truth” ( as I understand it) under such constraints. I left the witness stand wondering why I put so much effort into preparing testimony which won’t be allowed by some judges.

But I was followed by Marie Shebeck, a gentle White Rose Catholic Worker from Chicago. She described the reasons she joined the action along with explanations about the values of this movement begun by Dorothy Day and Peter Maurine.

She was followed by Will Hesch-Bruggeman, a local teacher who was passionate about health risks to children posed by mining and transport of this toxic and carcinogenic sand. He told jurors the school he teaches at is less than seven blocks from the site where he was arrested. His wife brought their 5-month old daughter to the courtroom yesterday and Will talked about health dangers to expectant mothers and those in the womb. On April 29th last year, Will had two very personal reasons to risk arrest with us!

70+ year-old Roberta Thurstin-Timmerman is our elder among the arrestees. She did us proud as she proclaimed, “I have a voice and a body – I can speak for those who can’t.” She was clear she was speaking on behalf of not only young children but also flowers, plants, and trees. “I love this world God gave us and the children of this world shouldn’t be subjected to these things which can be stopped. If we can stop this [frac sand mining] so we can study the health effects, it [getting arrested] was worth it.

Joe Kruse talked of his love for the sand bluffs near his boyhood home across the river in LaCrosse, WI but went on to lament the devastation he has witnessed after visited several frac sand mines in Wisconsin and told of spills in a nearby county which destroyed trout streams. “[The frac sand industry] is really a trespass on a common resource – water. “I was glad when the police arrived [at the protest site]”, he said after describing an irate sand-hauling driver who threatened them with his huge truck. But he concluded his testimony stating he was willing to risk this on behalf of children.

Barb Kass, an activist grandmother, said “silica sand is the wrong answer. It allows us to think we can continue to over-consume oil and gas products.” She tried to talk about the importance of “invitation” in standing in solidarit
y with others but when she tried to briefly illustrate her point with a personal example from her family’s powerful solidarity action with indigenous spear fishermen in Wisconsin, the prosecutor quickly objected and the judge told her to “move on” to another topic. Many of us in the courtroom came to Winona at the invitation of local residents who needed our solidarity to pull off such an ambitious public witness. She reminded the audience that the local Catholic Worker community “has been doing this hard work for a long time”, making it clear that we were primarily standing behind and alongside them. Her granddaughter turned 4 the day of the arrest and Barb beautifully described her resistance act as a “present” to that precious child. (She also shared ice cream with the younger generation she was protecting.)

Stalwart Quaker/Buddhist activist John Heid kept the courtroom mesmerized with his passionate (and compassionate) explanation to the jury of why nonviolence is “a way of being” for him, not just an interesting philosophy or tactic. He said, “I don’t use the term ‘protest’, this [action] was a prayer. The heart of what we were doing is nonviolence. I felt invigorated, very alive” when going to the site for the vigil. He drew a distinction between law, authentic law, and conscience. After our lawyer told him (while John was on the stand, in front of the jury) that he advised John not to take the witness stand since the prosecution’s evidence against him was muddled at best and insufficient, John quipped, “I’ve always had a tenuous relationship with lawyers!” The judge roared with laughter because he had already faced Heid in his courtroom for previous acts of nonviolent resistance where he represented himself.

While many others (including myself) tried to slip in references to great practitioners of nonviolence in recent history, John quickly reminded the jurors, ” [Martin Luther ] King and Gandhi were all criminals – they all broke the law. We idolize the law,” he lamented. He described some of his fellow Quakers as ” mystics with feet”, saying that this is a prophetic vocation. He described his action as “putting my feet where my heart and soul are.” Suddenly the hard pews in the courtroom were mystically transformed into church pews – if only our churches were as committed to peace and justice as John continues to model it for us! His testimony made the boring tedium of yesterday’s prosecution witnesses worth sitting through to get to the heart of the matter.

Becky Lambert, a farmer like Barb Kass, talked about the huge threat to the soil this mining entails. “These mines are getting closer and closer to our [Lake City, MN Catholic Worker] farm. If our landscape is destroyed, so is what we do.” She described the Catholic Worker passion for sharing food, breaking bread with others. She described carrying food to the demonstration site saying, “we hoped to share our food with the workers and police officers.” It was a sign of intended reconciliation. When asked if risking arrest was a kind of last resort after trying other legal means to stop frac sand mining and transport, Becky said, “this is what I could do at the time. We stopped the work for one day. This [appearing in court for the trial] is part of the witness.”

During one of our courtroom breaks, Rachel Stoll, the next witness, told me she is younger than my youngest son! When she took the stand she eloquently described the benefits of leaving the sand in the ground as a means to protect our river and the water table. She told how all the planning meeting for the action were open to the public and stated our flyer advertising the faith and resistance retreat before the day of action called our plans for Monday, April 29 as “Gospel Obedience” rather than civil disobedience. She felt “compelled to act” and she “felt joy knowing we were doing the right thing.”

Matthew Byrnes was the last defendant to take the stand on this long day in court. Again, he was told by our lawyer that he risked conviction by taking the stand because he, too, had poor evidence presented against him by the prosecution witnesses. But he strode confidently to the witness stand after affirming his oath like two other Quakers before him did. He observed that the City of Winona seems to listen more to protests than listening at meetings. The previous city-wide moratorium on frac sand facilities (which had expired before our April 29 witness) was only first discussed by the city after a dramatic protest by Catholic Workers and supporters raised the issue to their agenda. The moratorium was put in place so health effects of silica sand could be studied but no information was ever released to the public. Since our mass arrests, an air monitor has been installed on the downtown YMCA and the Governor traveled to Winona to state that frac sand as an industry was not good for southeastern Minnesota. The judge told Matthew that he couldn’t draw causal effect from our actions to these but Matthew concluded his testimony stating about his arrest, “It was the only decision I could do as a moral person.”


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By Published On: February 6th, 20142 Comments


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