Yesterday, Brent Betterly, Brian Jacob Church, and Jared Chase (the NATO 3) appeared in court for another status hearing. We anticipated evidentiary hearings and oral arguments on the motions to dismiss charges and Brian’s motion to suppress his post-arrest statement, but these were postponed till July 9th at 2pm. Instead, the hearing focused on several discovery issues and their potential implications for the State’s prosecution.
Importantly, the defense noted recent discovery submissions of emails between the prosecution and the Chicago Field Office of the Secret Service discussing the alleged plans to attack Obama’s campaign headquarters. In one of these emails, the Secret Service states that at no time did the defendants reconnoiter the campaign headquarters and there was never a threat to this location.
The defense argued that these documents are “extremely exculpatory” and may influence upcoming motions to dismiss the charges as unconstitutional as applied to the NATO 3 (a motion to dismiss the charges as unconstitutional was filed back in January and denied in part in March, although the defense can renew the as-applied challenge before trial as more facts are put on the record for the judge to evaluate). The defense also argued that these documents could call into question the original indictment, as it is likely that there are people who had access to this information before it was issued. The judge indicated that he considered these trial issues, but the defense argued that they point to potential discovery and indictment issues and could warrant pre-trial motions in the future.
The hearing also focused on Brian’s motion to suppress his post-arrest statement. The defense argued that the statement was obtained in violation of Brian’s Miranda rights and IL state constitutional rights because he was chained for 17 hours and denied access to counsel until his will was overcome and he was forced to give the statement. If the prosecutors want to use this statement either in their main case against Brian or to cast doubt on his credibility during cross-examination if he testifies on his own behalf, the defense will demand an evidentiary hearing to argue that the statement should not be admissible. The prosecution asserted that they currently do not plan to use the statement in their main case, although they would likely use it if Brian takes the stand. However, they want more time to review the case law and finalize their plans. The evidentiary hearing on this matter was scheduled for July 9th at 2pm.
Other discovery issues were discussed as well. The prosecution has provided the defense with First Amendment Worksheets created during the police investigation leading to these charges. These worksheets have been placed under seal. The judge asserted that he will act as “gatekeeper” of the information, determining if information will be made public and when. The prosecution also argued that they should not have to provide the defense with the cell phone numbers of the officers involved in the Field Intelligence Team that had been investigating Occupy Chicago and the defendants, and instead should be allowed to provide these call records with the numbers redacted. The defense argued that this would prevent them from determining who called whom and who was responding to each call. To resolve this issue, the judge ordered the prosecution to provide the defense with an opportunity to review these documents in the prosecutor’s office and gave the defense the option of filing a motion about this issue if this review is insufficient.
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