Court Notes from Jonathan Paul’s Second Sentencing Hearing, 8/1

Court Notes from Jonathan Paul’s Second Sentencing Hearing, 8/1
Author: flies on the wall

Jonathan Paul was sentenced today in Eugene federal court to 51 months, plus three years supervised release. The terrorism enhancement was not applied. This second sentencing hearing for Paul took place as Paul’s attorney had objected to the sentence Paul had received (51 months) on June 5. That sentence was then held in abeyance until today’s hearing, which produced exactly the same sentence length.

Federal court started with a bang today as Judge Ann Aiken read off a list of materials she had consulted related to Jonathan Paul’s sentencing, and became immediately annoyed when Paul’s attorney asked for clarification on the documents. Stephen Peifer for the federal government made no opening arguments save to say that he stood by the memorandum they had filed. Then Marc Blackman (Paul’s atty.) addressed the court, first by thanking the judge for accommodating the defense’s request for a delay of sentencing due to the illness of Paul’s wife Tami. He also told the judge that Paul had a response to present to the judge concerning her comments at the previous June 5th sentencing. Aiken once again got surly as Blackman asked for clarification for the record on one matter of documents received.

Blackman began his presentation. He stated that the starting point for sentencing was the proper application of the advisory guidelines. “Respectfully, the court did not do that.” On June 5th, Aiken calculated a 51-month sentence in two different ways. Blackman dealt with each of them in turn. He said that, if the court believes the starting point for sentencing calculations is the mandatory minimum, departure must go down three levels once the minimum has been lifted, which would bring the sentence down to 37 months. Alternately, leaving mandatory minimums by the wayside, the court must show a basis for its upward departure. The Cavel West communiqué cannot be used as this basis, because it cannot be attributed to Paul. Blackman said that Tubbs wrote the communiqué (by his own admission) and did not consult or inform Paul about it before its release, that there is no factual basis for an upward departure, and that the judge should review her earlier analysis. Peifer responded that the communiqué is not the only basis the court has for departure. He said Paul was clearly motivated by intent to put Cavel West out of business. He said the crime of arson is listed as one of the predicate crimes for the terrorism enhancement [although Peifer was not arguing for the terrorism enhancement itself, just a comparable upward departure]. Peifer then did sentencing calculations recommending a twelve level upward departure under 5K2.0, for aggravating circumstances not set forth under the guidelines. Peifer recommended a sentence of 57 months, but ceded that if the judge intended to downward depart to a sentence of 51 months, the government would not object.

Blackman stated that the court has announced numerous times that the communiqué was the basis for the upward departure in others’ sentencings. He said that the guidelines are an inductive fact-based system, not deductive. He asked the court to “start at the beginning, not the end” in calculations. “It’s simply not proper, not permissible, not right to do otherwise, “ he said. He said the court should sentence at level 18, and 37 months is at the high end of the range.

The judge called on Mr. Walker, who was standing in for Purdue from probation. Walker stated that in his experience there are three reasons for criminal conduct: desperation, disillusionment, and desire. He said that because Paul had means at his disposal, that desperation was not a factor. He said we had to look at Paul’s desire to commit the crime as his motivation. He then said that arson is a crime of violence that scares and angers people, citing his experience as a firefighter for the Youth Conservation Corps as a teen. He said he views Paul as a violent offender and, as a public safety issue, recommended a higher sentence.

Paul then read a statement responding to Aiken’s sermon on June 5th, in which she challenged Paul to denounce arson as a tactic and to use his notoriety as an activist to encourage youth to participate in “positive action”. Paul said that he took Aiken’s challenge to heart, and that he had worked hard on his statement, but that when he heard of the Charleston, SC fire which had taken the lives of nine firefighters recently, his statement had seemed trivial and egocentric in the gravity of that situation. Paul said he wants people to hear and believe him when he says that arson is incredibly dangerous. He said that anyone who says they can control a fire they’ve set is deceiving himself or herself. He said that he now believes arson goes against the movement’s code of non-violence, and that if anyone got hurt or killed, as they had in Charleston (although he did not know the cause of that fire), he could not live with himself.

Aiken stated that “before imposing sentence for the THIRD TIME” she would address counsel’s arguments that the court cannot impose a twelve level upward departure, as it violates the ex post facto clause. She said that the Booker ruling (in the Supreme Court) gives her the discretion to upward “or, I might add, downward” depart. She said, “All the defendants should thank their lucky stars that they were offered plea deals.” She said that Paul’s sentence was crafted with the sentences of the other nine defendants in mind. Again, “thank your lucky stars…” She said Blackman’s assertions are “patently incorrect” and, “To make it CRYSTAL CLEAR, I will depart upward” as if Paul had qualified for 3A1.4, the terrorism enhancement, even though the enhancement does not apply, per se. She said she cannot reward defendants simply because they did not target government, and that all the defendants should be treated similarly. The only question, she said, is to what degree she will depart downward. She mentioned case law justifying the legality of her decision, and cited 5K2.0 as the basis for her twelve level upward departure. She said that even if Paul did not write or have knowledge of the Cavel West communiqué, he was responsible for its contents. The issuing of a communiqué was the foreseeable action of a co-conspirator. Furthermore, Paul’s intent was to retaliate against Cavel West and put it out of business. She said Paul’s intent is further evidenced by his actions at UC Davis, the University of Arizona and his numerous animal releases, and that these constitute clear and convincing evidence of intent. To the extent that she frames her decision in terms of upward or downward departures, she stated that she has discretion, as long as the sentence is “reasonable”. For Cavel West, she had only departed upward one level in Tubbs’ sentence, because she had already factored in the terrorism enhancement for his other acts. She said that Paul is not being treated more severely than the others. Although the applicable guidelines do not explicitly discuss attempts to intimidate private individuals and businesses, it would be unreasonable to not impose a similar upward departure to that of the terrorism enhancement.

Aiken stated that she had read from books at each sentencing hearing, because defendants had organized as a “Book Club” to conspire. Aiken then spent what felt like ten minutes or even longer describing the book Three Cups of Tea by Greg Mortenson and David Oliver Relin, a heartwarming story to be sure. Paul was ordered as part of his sentence to read the book and write a book report, to be turned in before his self-surrender. The central message of this true story seems to be that the importance of non-violent service to the less privileged, and that education is “important to world peace.” “You will read that book.” Aiken has already sent this book to Chelsea Gerlach and Stanislas Meyerhoff.

Aiken then said that sentencings are about accountability and hope, not dehumanizing events and calculations. They have to be about giving people a chance to be held accountable and to come back and be productive members of society. Aiken stated that she will watch very carefully how Paul performs in prison, “One person at a time is how we change people.” To illustrate how people can change, she then read a personal letter from Stanislas Meyerhoff, with whom she has been corresponding. This lengthy letter, beginning with “Thank you for your mercy,” and ending with a bizarre reminder about driving safely, described Meyerhoff’s efforts teaching English as a Second Language as well as Spanish, plus his involvement with “therapeutic” Bible studies in prison.

Aiken stated that she took the time to read this letter because she believes that sentencing today is just the beginning. “It is your return to the community that I care about.” She attended a Ninth Circuit Court conference last year, and was reminded that at sentencing “You do the right thing.” With that, she sentenced Paul, giving a 12-level upward departure, as the terrorism enhancement per se did not apply. Three years supervised release as well. Same conditions as with other defendants (except no restitution, see below.)

Blackman then requested that Paul be sentenced to Sheridan work camp, or if not to the low-security facility in Lompoc, CA. Walker (from probation) stated that Paul was involved in a crime of violence and did not qualify for the Sheridan camp. Peifer agreed. No restitution was demanded of Paul, as he had settled out of court with Cavel West’s insurance company. Marc Blackman then emphatically reminded Aiken that Paul had not been involved in the “Book Club,” which came into existence years after the Cavel West arson, and that Judge Aiken’s pointed mention of the club was mistaken. Aiken interjected that the Book Club IN NO WAY factored into her sentencing of Paul. She will write a letter suggesting that Paul serve his sentence at Lompoc.

Blackman made a final query about Paul being prohibited from contact with people who “had”—past tense—been involved with illegal activism, stating that Paul does not have the ability to know what is or is not in everyone’s past. Aiken stated that she’d be closely watching, that’s all. Paul must self-surrender in 60 days, once the Bureau of Prisons assigns him to a facility.

After stating that court was in recess, Aiken jumped up, waving her arms to get everyone’s attention, and announce that Three Cups of Tea is on sale at a ten percent discount at a local Eugene bookseller. (How’s that for publicity, Smith Family!?)

A press conference followed the hearing, with Alejandro Queral of the Northwest Constitutional Rights Center making a statement about the political nature of these prosecutions, and Jonathan Paul then reading a statement, similar to what he said in court, about the dangerous nature of arson. Paul then stated that he would continue to fight in defense of the earth and its animals for the rest of his life, because it was in his DNA. We must stand up to the government and the captains of industry to make a change, Paul said.