silenced in the courtroom

August 23, 2013


A joyous Neil and Linda Swanson were escorted in cuffs from the ERM office building.
// photo from

Steve Norris carried a copy of Gandhi the Man, but he knew he wouldn’t get to read a passage to the judge. Alex Hunter-Nickels sang a bit with a few others, but quietly while sitting on a bench outside the courtroom. We gathered in a chatty, hugging, even boisterous bunch near courtroom and were shushed several times. Once inside, we were admonished, and then reminded, not even to whisper. Steven Donkin was told to stop reading his book, a biography of black-listed Hollywood Ten screenwriter Dalton Trumbo. No reading in the courtroom.

For a time, the ERM-54 were muzzled.

Over the past two weeks, the 54 protesters arrested last month in a spirited sit-in at the office building of Keystone XL pipeline apologist Environmental Resources Management (ERM) were arraigned in DC Superior Court. Many, along with their supporters in the courtroom, had also participated in all or part of the 100-mile Walk for Our Grandchildren last month. The ERM protest came on the last day of the walk. Most of the men were arraigned last week, most of the women this week. As arranged by pro bono attorney Jeffrey Light, who also has represented Occupy participants, the protesters pleaded not guilty. The charge: unlawful entry.

Other cases were called first, mostly teens and 20-somethings charged with marijuana possession. While waiting outside the courtroom last week, an orange-jumpsuited prisoner manacled to a wheeled chair was pushed past us. He never appeared in court though. One defendant didn’t like his attorney, although we couldn’t hear the details because the judge switched on white noise when lawyers spoke with clients. One lucky man had all charges dropped and was freed. Another seemed to be the victim of a bait-and-switch. His marijuana charge was dropped, but he was served with a subpoena to appear before a grand jury.

And then the names were called, in bunches of 10 or so:

United States v. Neil Swanson

United States v. Joseph Firman

United States v. Michael Bagdes-Canning (misspelled)

United States v. Steven Donkin

United States v. Melinda Tuhus

United States v. Lillian Marotta (who turned 20 on her day in court)

United States v. Deborah Woolley

United States v. Mary Liepold

And on and on. The ERM-54 had a right to remain silent, which they did, stating their names or indicating they understood the terms of their plea only when asked.

The assistant U.S. attorney said “all the young ladies are diversion eligible,” as were the men. Everyone agreed to return, most on Sept. 9, to sign the “stet” agreement, which is not a simple or inexpensive matter for those coming from New York, Asheville, NC, Pennsylvania, even Seattle. Light said the stet agreement means the charges will be dismissed as long as the defendant isn’t arrested again in the next six months. Which might be hard for people like Norris and his wife, Kendall Hale, who are fighting on many fronts in what is becoming a backwater of a state: North Carolina.

Everyone probably will also be ordered to stay away from ERM’s offices at 1776 I St. NW in DC. Community service or a fine could be part of the terms, but Light said he doubted that. After two years, Light said, the arrest record could also be expunged.

Then everyone had to sign a form indicating the conditions of release. The court, I kid you not, makes carbon copies of this form. Are they taunting us? The ERM-54 had shouted to the world about the Keystone XL pipeline, ERM’s lies and “game over for the planet” from all this carbon we are digging up and spewing into the atmosphere. And now a form with carbon copies.

Then each defendant left the courtroom. Joseph Firman raised his fist and smiled on the way out. Others hugged or kissed friends there for support. Or brandished the court’s form like a badge of honor.

From there, everyone had to walk to a nearby room to provide proof of address (A driver’s license is not proof. Those without a piece of mail or a bill on hand have a letter sent to the address; when it arrives, they have to call to confirm receipt.)

And then, like every other defendant, they had to pee in a cup in the presence of an officer of the court to make sure no cheating was going on. They are trying to stop climate catastrophe, but the ERM-54 can’t be on drugs while they’re at it. Or poppy seeds. Bill Shauman wrote in an email that he “had a slice of Whole Foods (how bourgeois can a protester get?) black Russian rye loaded with them that morning. So I had forebodings.” When he returned the next day with proof of address, he learned “that sure enough I had tested positive for opiates. So now [I’ve] got to meet my case manager. No use explaining about the rye bread — they have heard all those excuses before. And this is a no-bullshit environment. I dare say I’ll pass the next two tests, but it’s nice to know that if by chance I didn’t, DC would refer me to a free treatment program.”

Turns out getting arrested for the sake of future generations is not hassle-free. “We have to be willing to be inconvenienced,” said Woolley, who took a red-eye flight from Seattle to arrive in time for the arraignment and arranged to return in October when fares are reduced. We might have to get arrested, pee in a cup, walk instead of drive. “We might have to live a more inconvenient lifestyle. Convenience has gotten us into this fix,” she said.

The ERM-54 and their supporters certainly got a taste of the criminal justice system.

Jerry Stewart found it “a bit jarring to see all of our names up on screens, listed with the crimes we were accused of committing. Seeing criminals in handcuffs shuffling around with lawyers really impressed upon me the realities of the American prison system and what being in jail actually means.”

Shauman said, “Court personnel treated us all, black and white, quite respectfully — I am not used to being addressed as ‘mister’ — instructions were easy to understand, and you had to walk only a little way to get to the next processing point. All in all, a fleeting glimpse of a world that all too many residents of the city know well.”

Discussion before and after the hearing highlighted some bewilderment or perhaps frustration at having to plead “not guilty” for an action we all deemed imperative. 

The day before the first arraignment, Valerie Serrels — mother of the iMatter teens Grant and Garrett, who participated in the Walk and the ERM protest but didn’t risk arrest because they had to speak at a climate rally the next day — emailed an article by Jeremy Brecher in Waging Nonviolence. He lays out the iMatter “public trust” argument that governments should protect the commons: “Governments will no doubt continue to treat protesters who block pipelines, coal mines and power plants as criminals. But such governments come into court with dirty hands, stained by their dereliction of the duty to protect the common inheritance of their own people,” he wrote. “Those who blockade coal-fired power plants or sit down at the White House to protest the Keystone XL pipeline can — and should — insist that they are simply exercising their right and responsibility to protect the atmospheric commons they own along with all of present and future humankind.

Before the second day of arraignments, Shireen Parsons handed out a 1964 quote by Mario Savio printed on a little slip of paper: “There is a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can’t take part; and you’ve got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you’ve got to make it stop.” 

The ERM-54 and its supporters wanted to expose corporate collusion and government complicity and coverup in the rush to extract and transport the tar sands carbon bomb. And days after the arrests, the State Department announced it would investigate ERM’s conduct in preparing the pipeline environmental impact statement. Couldn’t these cases be put on hold until the State Department investigation is complete? Or couldn’t the group plead the action was a “necessity” because of climate change? But Light said those would not be winning defenses. 

“Our civil disobedience involved regular folks pointing to criminal behavior perpetrated by a large corporation acting with impunity,” Bagdes-Canning said. “We do a perp walk, and even though many of these conflicts and ties were revealed years ago, ERM to date has not been charged with anything and no one is put in cuffs but us. … In Pennsylvania, we call our Department of Environmental Protection (DEP) Don’t Expect Protection because the health and safety of the citizens of Pennsylvania are secondary to the bottom line of industry. Apparently, things in Washington, D.C., are not much different.” 

Parsons wrote in an email: “I found the whole experience Kafkaesque, particularly when I compared the ‘crimes’ of all those people and us, a bunch of old farts who care about the Earth and all of Earth’s creatures, (including everyone’s children and grandchildren) — against the crimes of our government and the corporations that own it.”

Yes, we were muzzled, Norris said. “The court wants it that way. It’s not set up to give us a voice. Geniuses like the Berrigans figured out ways to do that, turning the courtroom into a theater with a performance that they controlled. I hope someday we can do that. But that takes creativity, courage and planning.”

So, the ERM-54 was silenced for a day. But they and their supporters emerged united and looking for the next step. 

Steven Yoder found a “sense of connection” he had not anticipated and deeply appreciates. “As we witnessed several other persons going through the arraignment process, I felt bad for them not having anyone to support them and share in their distress. It strikes me that a part of what we were protesting is the breakdown of community that allows dangerous and destructive things like building pipelines to transport more dirty oil to happen,” he wrote in an email. “It takes communities to stand up to evil, and in our action we have created a new community. Witness the flurry of email communication since the action! We can’t stop talking with each other, encouraging each other, helping each other!”

In an email, Norris wrote: “I get a sense that this struggle is escalating. 2000 climate activists or maybe more have been arrested in the last year. We are approaching the energy & power we had in the 60s when we ended Jim Crow, challenged the War machine so the US had to get out of Vietnam, started the women’s movement, gay rights movement, & environmental movement. These eventually brought nuclear power to its knees & ended the nuclear arms race, and enabled Latin American countries to throw off some if their chains.” He said the Walk for our Grandchildren started as a “political project” to stop the KXL pipeline and end our dependence on fossil fuels. “ But as we walked it morphed as well into a pilgrimage. I did not expect that at all. And what to do with the pilgrims and the sacred moving place we arrived at and the energy we created … that’s our challenge.”

–elisabeth hoffman

One Response to “silenced in the courtroom”

  1. Liz Feighner said

    Several things seemed to stand out for me while being at the courthouse supporting those that were arrested. First of all, it seemed that those appearing in court had no right to privacy with their names and “crimes” posted on a giant screen.
    Secondly, I was quite shocked that no one was allowed to talk, even whisper while in the courtroom and one person was told he could not read his book – not an ebook (all electronics had to be off) but a real book. Still don’t understand that one!!
    I sensed those in charge of the courtroom enjoyed the power that they wielded – telling people where to sit, when to stand, making people leave the courtroom even though they wanted to remain until everyone was done.
    It truly was an enlightening and interesting experience just being a supportive bystander and I applaud those that risked so much in participating in this civil disobedience action.

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