Federal Appeal Courts Agree: Facts About Nuclear Weapons Can be Hidden from Juries in Protest Cases
Spring Quarterly 2020
By John LaForge
If you thought confronting nuclear weapons in the United States would be easier now that the United Nations General Assembly has approved a treaty outlawing them, think again.
The 2017 Treaty on the Prohibition of Nuclear Weapons will come into force after 50 countries have ratified the law. This may occur in 2020, since 36 nations have already done so.
However, the U.S. court system has constructed a seemingly impenetrable fortress of legal precedent that provides nuclear weapons systems a heavy blanket of judicial security. Like a palace guard that keeps an emperor safe from all foes, U.S. Courts of Appeal have placed the bomb and its producers on a throne of the highest order where the mere mention of its status under law is forbidden.
Motion in limine— do not discuss the facts
Between 1980 and 2005, seven separate United States Circuit Courts of Appeal have decided that federal judges may — and in one case must — prevent juries in nuclear weapons protest cases from hearing a “defense of necessity” or expert testimony about international law, even if such law forbids nuclear weapons by name.
The First, Second, Seventh, Eighth, Ninth, Tenth, and Eleventh U.S. Circuit Courts of Appeal have all agreed that in political protest cases, keeping juries in the dark concerning the outlaw status of nuclear weapons is legitimate. 1(1) Beginning with the most recent: the Tenth Circuit, U.S. v. Platte, 401 F.3d 1176 (2005); Seventh Circuit, U.S. v. Urfer, Sprong, 287 F.3d 663 (2002), and U.S. v. Haynes, 143 F.3d 1089 (1998); First Circuit, U.S. v. Maxwell, 254 F.3d 21 (2001); Ninth Circuit, U.S. v. Komisaruk, 885 F.2d 490 (1989) [as well as U.S. v. Cottier, 759 F.2d 760 (9th Cir. 1985), and U.S. v. Aguilar, 756 F.2d 1418 (9th Cir. 1985), and U.S. v. May, 622 F.2d 1000 (9th Cir. 1980)]; Eighth Circuit, U.S. v. Kabat, 797 F.2d 580 (1986); Eleventh Circuit, U.S. v. Montgomery, 772 F.2d 733 (1985); and the Second Circuit, U.S. v. Allen, 760 F.2d 447 (1985). These seven federal U.S. circuits are the controlling and precedent-setting tribunals for all federal trial courts in 38 of 50 states.
Most recently, in the October 2019 trial of the Kings Bay Plowshares 7 in Brunswick, Georgia, Federal District Judge Lisa Godbey Wood granted the government’s “motion in limine” 2 Black’s Law Dictionary defines “motion in limine” as “[a] written motion which is usually made before or after the beginning of a jury trial for a protective order against prejudicial questions and statements.” Black’s Law Dictionary 914 (rev. 5th ed. 1979). or gag order, agreeing with the government’s wish to silence the defendants and quash their attempt to argue a “crime prevention” defense based on international law. Judge Godbey Wood even ridiculed the controversy over the legal status of nuclear weapons in her October 18 order granting the motion, writing, “… whether nuclear weapons are actually illegal under international or domestic law (a doubtful proposition) is not relevant or an appropriate issue to litigate in this case.”
The judge’s order, issued 60 hours before the trial, kept the defendants and their lawyers in a state of pre-trial overwork, unable until then to finalize their defense arguments, witnesses, and exhibits. Judge Godbey Wood’s order denied the defendants’ right to fairly and fully defend their actions in the context of a lawful excuse that turns ordinary criminal “trespass” and “damage to property” into justified intervention or crime prevention (as when a firefighter breaks in a door to save someone).
In his detailed Stanford Law Review history and analysis of the government’s use of the motion in limine, Hofstra University Assistant Professor of Law, Douglas Colbert explained, “If the court grants the government’s motion, the accused’s right to present a full and complete defense is placed in jeopardy, and the jury’s role as a trier of fact is severely undermined.” The government’s motion in limine, “when successful in eliminating an entire defense, seriously erodes (if not completely nullifies) the crucial role of the jury as judge of fact…[T]he motion in limine represents a direct attack on the accused’s right to a trial by jury,” Colbert wrote.3Douglas L. Colbert, “The Motion in Limine in Politically Sensitive Cases: Silencing the Defendant at Trial,” Stanford Law Review, Vol. 39, No. 6 (Jul., 1987), pp. 1271-1327 (page count 57). DOI: 10.2307/1228848; [https://www.jstor.org/stable/1228848]
Judge Godbey Wood had plenty of legal precedent to rely on in her glib, last-minute court order. In U.S. v. Montgomery (1985), the Court of Appeals for the 11th Circuit which covers Brunswick, Georgia and controls Judge Godbey Wood’s court, “the majority” said the trial court was right to keep exculpatory evidence from the jury. “Defendants’ most interesting claim,” the majority found, “is that the trial judge erred in excluding evidence offered to establish the affirmative defenses of necessity and international law… Other federal courts have considered the availability of an international law defense in cases like this one and have uniformly rejected it.”4U.S. v. Montgomery, 772 F.2d 733 (11th Cir. 1985), where the majority instructed the parties to in part, “See U.S. v. Lowe, 654 F.2d 562, 566-67 (9th Cir. 1981); U.S. v. May, 622 F.2d 1000, 1009 (9th Cir. 1980); U.S. v. Shiel, 611 F.2d 526, 528 (4th Cir. 1979).”
In a nutshell, the Plowshares’ argument is that because nuclear weapons are so hideously poisonous and indiscriminate, and their effects so vast and uncontrollable, that threatening their use (deterrence), like the U.S. Navy practices using U.S. Trident submarines out of Kings Bay, is a criminal conspiracy to commit war crimes. Therefore, nonviolent interference with this ongoing criminal conspiracy is a justifiable form of crime prevention, or a kind of citizen’s arrest.
Trial court judges have regularly granted government motions in limine excluding evidence about international law, the effects of nuclear weapons, and the nature of the U.S. nuclear arsenal. When the inevitable convictions have been appealed, U.S. Circuit Courts of Appeal have declared, like the Second Circuit did in a 1985 case, that defendants “should not be excused from the criminal consequences of acts of civil disobedience simply because the acts were allegedly directed at international law violations.”5U.S. v. Allen, (2nd Cir. 1985)
Later, and as if anticipating the new Treaty on the Prohibition of Nuclear Weapons, the Seventh U.S. Circuit Court of Appeals wrote in 2002, “Even if it were contrary to international law for a nation to possess nuclear weapons, domestic law could properly and does make it a crime ‘to correct a violation of international law by destroying government property.’”6U.S. v. Urfer and Sprong (7th Cir. 2002). These 18- and 35-year-old decisions appear now to be an attempt to proactively and permanently shield nuclear weapons from legal scrutiny, making them sacrosanct forever on a pedestal above the law.7The in limine tactic of excluding testimony helpful to defendants in political cases was used in prosecuting Tim DeChristopher who mucked up an unlawful timber auction. At trial, the judge prevented the jury from finding out the auction was illegal. See the documentary, “Bidder 70.”
After their October 6, 2002 symbolic disarmament action at a Minuteman nuclear missile launch site in Colorado,8The prosecutorial tactic of excluding testimony helpful to defendants in political cases was also used in the federal prosecution of climate activist Tim DeChristopher, who outbid competitors for drilling rights at an unlawful BLM auction. Never intending to pay, he was prosecuted in federal court and at trial the judge’s grant of a motion in limine prevented the jury from learning that the BLM auction was illegal. See the documentary “Bidder 70” (Mountainfilm 2012), as well as PeacefulUprising.org and ClimateDisobedienceCenter.org. Sr. Ardeth Platte, Sr. Carol Gilbert, and the late Sr. Jackie Hudson, all members of the Dominican Order of Preachers, were convicted of “sabotage” and of “depredation against government property.” Before trial, by court order, the nuns’ convictions were guaranteed and made inevitable by the trial court’s granting of the government’s motion in limine — turning the courtroom drama into a version of a Kabuki dance — that formulaic Japanese stage play with elaborate costumes, caricatured roles, and a never-altered conclusion. Srs. Ardeth, Carol and Jackie were prohibited from presenting evidence — or jury selection questions, jury instructions, or opening or closing statements — regarding the effects of nuclear weapons detonations or the legal obligations of citizens under international law. The trial court in Denver — evidently having scoured every previous nuclear weapons protest case for any potential defense — forbade the three nuns from:
“Any defense based on necessity or violation of international law or that impugns the … legality … of the Minuteman III missile system, including” the defenses of “necessity; duress; choice of evils; privilege; justification; ‘Nuremberg’; mistake of law; international law violations; U.S. Army Field Manual violations; International Court of Justice judgment violations; Treaty violations; UN Charter violations; Vienna Convention violations; … Geneva Convention violations; and/or Tokyo Judgment violations.”