Issue 56, April 2006
The SHAC7 Conviction
A Blow to Free Speech and Compassionate Activism
By The SHAC7 Support Committee
|The six defendants: Andrew Stepanian, Lauren Gazzola, Kevin Kjonaa, Joshua Harper, Jacob Conroy, Darius Fulmer|
On March 2, the Bush administration dealt yet another blow to the First Amendment, as the SHAC 7 were found guilty of multiple federal felonies for advocating the closure of the notorious animal-testing lab Huntingdon Life Sciences. Now, all six activists face years in federal prison. Four of the six are currently under house arrest while awaiting sentencing in June, and the SHAC7 Support Committee and attorneys are continuing to work to have the remaining two defendants released as well.
Not only is this conviction an appalling miscarriage of justice for the defendants, but it also demonstrates the erosion of free speech protections and is part of a politically motivated attack on the animal rights movement in particular. This is the first time anyone has ever been tried under the Animal Enterprise Protection Act of 1992 (now known as the Animal Enterprise Terrorism Act), and the convictions set a nightmarish precedent for animal protection campaigners throughout the country. Many industry hacks hope that convictions under the AEPA will clear the way for the government to go after any activist that campaigns against big business and is successful, regardless of the legality of their tactics.
History of the Case
All of the defendants were involved in some capacity in the campaign to close Huntingdon Life Sciences (HLS), a contract research lab with one facility in New Jersey and two in England. Horrendous acts of cruelty to animals at the lab were exposed in five different undercover investigations. Video footage showed workers punching beagles in the face, dissecting live monkeys, falsifying scientific data, and violating countless sections of the animal welfare act. Since 1999, activists have campaigned globally against the lab, bringing it to the brink of closure.
With a laundry list of victories behind the campaign, it was only a matter of time before big businesses called on the government to stop the activists. After several hearings before Congress brought governmental pressure to bear, a New Jersey federal grand jury indicted seven individuals and the organization Stop Huntingdon Animal Cruelty (SHAC) USA on charges of animal enterprise terrorism under the Animal Enterprise Protection Act (AEPA) on May 26, 2004. Also included in the indictment were charges of interstate stalking and conspiracy to use a telecommunications device to harass others.
Originally, seven individuals were charged, along with the organization SHAC USA. The individuals were Kevin Kjonaas, Lauren Gazzola, Jacob Conroy, Joshua Harper, Andrew Stepanian, Darius Fullmer, and John McGee. McGee was eventually dropped from the case.
All of the defendants were charged with conspiracy to violate the AEPA, a never-before-applied 1992 statute. Kjonaas, Gazzola, Conroy, and Harper were also charged with conspiracy to harass using a telecommunications device (sending black faxes). Kjonaas, Gazzola, Conroy, and SHAC USA were charged with conspiracy to commit interstate stalking and three counts of interstate stalking via the Internet.
While the charges themselves sound alarming, the defendants are not actually accused of having personally engaged in terrorist or threatening acts. Instead, the government’s case centers around the idea that aboveground organizers of a campaign are responsible for any and all acts that anyone engages in while furthering the goals of the campaign. In this case, the claim is that the SHAC7 should be imprisoned because underground activists took illegal actions against companies with ties to HLS.
If it weren’t so serious, this distortion of the law would be laughable, and yet somehow the defendants were convicted and are now facing years in federal prison based on the claim that being part of an activist campaign is tantamount to being a member of a global conspiracy.
The “Green Scare”
During the “Red Scare” of the 1940s and ‘50s, government propaganda campaigns convinced the public that members of the Communist Party represented an imminent threat to the United States. Through the use of this sort of fear-mongering in association with FBI Director J. Edgar Hoover, US Senator Joseph McCarthy was able to brand anyone who disagreed with him as a Communist or Communist sympathizer. Two of the main tools used to pursue these goals were federal grand juries and Senate hearings.
Today we see a return of these tactics in the collaboration between US Senator James Inhofe (R-OK) and FBI Deputy Assistant Director John Lewis. In hearings last year, Lewis labeled the animal liberation and environmental movements the biggest domestic terrorism threats facing the country. A news article also referenced Inhofe indicating that since the government could not find the people who engaged in the underground activities, it must go after the aboveground activists in these movements.
The Return of the Political Conspiracy Charge
Three of the six charges listed in the indictment were conspiracy counts. In fact, half the defendants only faced conspiracy charges. A conspiracy charge is typically very vague, very difficult to prove, and yet very easy to imply guilt of. These sorts of charges have a long history of use for political purposes during periods when an administration is in power that wants to curtail protest activity.
During the 1960s, conspiracy charges were used to target anti-war protestors and resulted in the conviction of Dr. Spock merely for speaking out against the draft and supporting resistance to the Vietnam war. In a similar case in 1969, a grand jury indicted eight activists on conspiracy and incitement charges for their part in protesting the 1968 Democratic National Convention.
In the SHAC7 case, the defendants were accused of having conspired to incite others to break the law in pursuit of the goal of shutting down HLS. The courts have consistently held that First Amendment free speech concerns must take precedence, even to the extent of permitting the advocacy of force and violation of the law, except where such advocacy is directed to inciting or producing imminent lawless action and is likely to do so.
For example, in Hess v. Indiana the conviction of a demonstrator who was overheard saying “we’ll take the fucking street later” was overturned because the Court concluded that the unlawful action advocated was not imminent but rather at some indefinite future time. The Court also found constitutional protection for the statement by NAACP members that, “If we catch any of you going in any of them racist stores, we’re going to break your damn neck.”
Protests Across State Lines
The only charges in the indictment that were not conspiracy charges were federal stalking counts. The government’s case on these charges was built around the premise that organizing or participating in home demonstrations across state lines becomes stalking. Never mind the fact that there were clearly police present in the videos shown of the protests, and if anyone had done anything illegal, they clearly would have been arrested.
In order to convict the defendants on these charges, the jury had to be convinced beyond a reasonable doubt that the people whose homes were being protested were not only in fear for their lives or of being physically harmed as a result of the protests, but also that this was a reasonable fear, and that the protestors intended for them to feel this way. With such a high burden of proof required, and the knowledge that this was never the intent of the defendants, these charges appeared impossible to get a conviction on.
The case first went to trial in June 2005, but ended in a mistrial when one of the key defense attorneys fell ill during opening statements.
The trial resumed on February 6, 2006. It was originally scheduled to last three months.
The judge limited the defense capabilities from the beginning, ruling that the defendants could not introduce their own computer expert (but the government could introduce their computer expert) and that there could be no anti-vivisection expert (but the government witnesses could carry on about the benefits of animal research). He also limited the defendants’ preemptory challenges during jury selection to seven and failed to dismiss jurors who worked for companies that had been the subject of the campaign to close HLS.
The government’s case lasted two weeks and consisted of parading a long list of witnesses up on the stand to testify about protest activity they had been subjected to. While none could identify any of the defendants as engaging in any criminal acts against them, many did testify about the criminal acts of others. The judge allowed people like HLS Director Brian Cass (who is based in the United Kingdom) to testify about the campaign in England, an attack on him in England, and the benefits of animal research, despite the fact that he had nothing to say about the defendants in the case. Government witness after government witness took to the stand only to testify about activity that had nothing to do with the defendants. Over time, it became clear that the government’s strategy was to throw in every action that has ever happened in the campaign and then insinuate that the defendants were somehow involved.
The highlight of the government’s case came when prosecutors called to the stand a young activist from Ohio who had sent black faxes to an HLS supporter and participated in Electronic Civil Disobedience (ECD) against an HLS affiliate. The activist testified that, in fact, SHAC USA had not encouraged him or influenced him to take these actions but, instead, he had been moved to action after seeing the undercover videos. He further testified that the tactics of black faxing and ECDs were common knowledge and that he had read about them on a number of websites.
After over two weeks of the government presenting witnesses, it was the defense’s turn. In criminal cases, the defense is under no obligation to present any witnesses or evidence, with the idea that it is up to the government to prove the defendants’ guilt. It is not up to the defendants to prove their innocence. With the view that the government had failed to make a strong case against the defendants, the defense presented one day of witnesses and rested its case.
Despite pleas from the individual defendants, SHAC USA’s president, Pamelyn Ferdin, decided to take the stand. While it is unclear what her impact on the case was, it is clear that she violated the strong requests of the defendants who were (and are now) facing significant prison time.
After three days of deliberation, the jury returned guilty verdicts on all counts.
What Went Wrong?
How could these individuals be found guilty for speech? Most would say, welcome to Bush’s America. Welcome to post-9/11 America. Welcome to corporate America. But it is more complex than that.
The defendants started the case with the chips stacked against them. The court’s rulings from the beginning were not in their favor, and the federal government had the advantage of endless people power to work on the case, as well as months of wiretaps, emails, and Internet postings, which could easily be misconstrued with a little help from the government.
Essentially the verdict in the trial came down to the question of whether the jury would look past the hand-waving and vague suspicions of the government, as well as past their own sense of camaraderie with the witnesses who took the stand to testify about how legal home demonstrations terrified them and their families. Sadly, the defense presented by the SHAC7’s team of attorneys was just not up to the task under these conditions.
The defendants each face significant time in prison. The two defendants convicted of only one charge may be sentenced to up to a year in federal prison, and the others will likely face sentences of five to ten years.
Although legal precedents are clearly on the side of the SHAC7, appealing the verdict will be a lengthy – and costly – process. For the defendants, this means potentially being imprisoned for years before it is possible the verdict could be overturned.
The defendants desperately need our support – both financially to cover the costs of the appeal process, and morally to help them through these difficult and trying times. For more information on how you can help support the SHAC7 and reclaim our free speech rights, please visit www.SHAC7.com.
Other articles by The SHAC7 Support Committee.
Re: The SHAC7 Conviction|
Posted by Someone in 8th grade at -0-4--2006
a little boring. you could add a frequently asked question page. I googled, and it gave me this page. my question wasn't really answered. How were the 1st and the 5th amendments violaded in the usa by people like Senator Joe McCarthy. I hope you read this. it did answer most of my other qustions i needed to answer. i hope you all keep it real. Bye
Re: The SHAC7 Conviction|
Posted by Mark Scheingold mschein (nospam) optonline.net at -1-0--2006
Has anyone asked for the assistance of the Ne Jersey ACLU? There are Constitutional issues in this case. Why are they not already involved.
Re: The SHAC7 Conviction|
Posted by anon healthiswealth3000 (nospam) yahoo.com at -1-0--2006
this is frightening that something like this can take place in america, land of free speech. there is no hope for our animals.