1 October 2004
Appeal Hearing - First Impressions from a Non Lawyer
By Bill Sulzman

The appeal of the sabotage convictions of Sisters Ardeth Platte, Carol Gilbert and Jackie Hudson was conducted this morning before a 3 judge panel of the federal 10th Circuit , Anderson , Hartz and Tymkovich.  A good crowd of 30 or so supporters were present in the courtroom.  The consensus among the attorneys and the supporters of the Sisters was that the tilt of the judges questions seemed to favor the defendants by a margin of 2 to 1 or so.

Susan Tyburski introduced all three of the grounds for appeal.  (see below )

1.  That the government  did not prove the element of specific intent to harm the defense of the United States.  She elaborated on the specific intent issue stating that Judge Blackburn did not correctly advise the jury of the need of the government to prove what specific intent would mean in this case.

2  Cliff Barnard made the argument that the government and the judge did not provide the jurors with a clear definition of what 'harming the national defense' would be in this case and did not distinguish the elements of a charge of  "damaging property" from the elements of "harming national security". Judge Anderson and judge Hart zeroed in on this point in questioning attorney Barnard and later the prosecution attorney.  Barnard pointed out that there was a 5 point delineation of the definition of this offense in the Goren case and that the government had only taken one of those points into question to substantiate their definition. Judge Hartz questioned the government with "So the fact that this was a protest case is what made it sabotage and only damage done in a protest case can rise to the level of sabotage". The prosecutor had admitted  that if a farmer had done  the same amount of damage because he wanted the fence out of the way for some reason that that would not be sabotage even if the same level of security forces responded (helicopters, dozens of troops and multiple vehicles). This assertion seemed to trouble all three judges.  It is impossible to know if they were only playing devil's advocate or if they really were troubled by this assertion.

3.  Scott Poland made the argument that a good faith jury instruction should have been given to the jury. To wit,  that the Sisters passionately believed in the International law that they argued for in a way severely limited by the judge. He had a colloquy  with judge Anderson on this point. Anderson noting that the judge had indeed allowed some testimony on this point and "wasn't that enough for the jury to consider  in their deliberations?" Poland agreed there had been some such testimony but that without the "tool" of a good faith instruction the jury had no guideline under which to consider such evidence. Judge Tymkovich pursued this point with the prosecution when he asked "suppose the defendants really held the belief that International Law is incorporated into the Federal Statutes?" The prosecutor made some reference to the fact they could not possibly hold that belief in "good faith".

This is only a brief summary of some of the main points made. The decision will probably cone down in 3 months or so.  Many who attended found it more interesting than they had anticipated.  All agreed that our side's attorneys had done an excellent job and were ready for the judges' questions.

There were a number of media present in court and they talked with the attorneys later outside the court house.

Bill Sulzman
Citizens for Peace in Space
P.O. Box 915
Colorado Springs, CO 80901
719 389 0644

2 October 2004
Judges hear nuns' appeal
Attorneys argue anti-nuke activists' intent was ignored
By Alicia Caldwell

Denver Post Staff Writer

Post / Lyn Alweis
Supporters of three Dominican nuns who entered a Weld County nuclear missile site in 2002 and were convicted of two felonies, hold paper “missiles” and signs at the U.S. Court of Appeals in Denver on Friday.

The three nuns who cut a chain-link fence to get onto a Weld County nuclear missile site intended to send a message, not sabotage national defense.

That's what their attorneys argued Friday before a three-judge panel at the 10th U.S. Circuit Court of Appeals.

As no-nuke protesters carried toy missiles outside the federal courthouse, attorneys inside asked that the nuns' sabotage convictions be reversed or their cases retried.

"In this case, the only thing the sisters had the intent to do was to cut the fence and send a message to the world," argued Clifford J. Barnard, a Boulder lawyer representing one of the nuns. "Intending to harm the fence is not the same thing as harming national defense."

However, Assistant U.S. Attorney James Murphy said the sisters carefully planned their 2002 trip to Colorado to stage the protest. Their intrusion onto the site, which housed a Minuteman III nuclear warhead, caused significant disruption as military personnel converged on the area, he said.

"I cannot agree with you that it did not impair the national defense," Murphy said. "They (personnel) were diverted from their duties of guarding the other missile silos."

The judges who heard the appeal will issue a decision at a later date.

Nearly two years ago, Jackie Hudson, Carol Gilbert and Ardeth Platte slipped into the missile compound.

They used bottles of their own blood to draw a cross on the silo lid and used ball-peen hammers to symbolically attempt to pound railroad tracks into plowshares.

An hour later, military personnel arrived with weapons drawn and found the nuns singing and praying. The nuns, of the Dominican order, were tried and convicted of two felonies - obstructing national defense and damaging government property.

Hudson, now 69, received a 30-month prison term; Platte, now 68, got 41 months; and Gilbert, now 58, got 33 months. The nuns, all originally from Michigan, previously had engaged in similar acts of civil disobedience.

Their cases have become a celebrated cause for anti- nuclear-weapons activists, dozens of whom converged Friday in downtown Denver.

Nikki Kayser, a Maine resident who previously had lived in Boulder, planned to hold a protest Saturday that was being called "Adopt-a-Silo."

Kayser said 500 people planned to go to 49 missile sites across Colorado to peacefully - and lawfully - protest the existence of nuclear missiles. In the afternoon, they planned to rally in Greeley on the University of Northern Colorado campus.

"We're going to continue the presence the nuns started," Kayser said.

Staff writer Alicia Caldwell can be reached at 303-820-1930 or acaldwell@denverpost.com .


( Other reports on 3 ploughshares nuns here )

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