Against a backdrop of furor -- both at home and abroad -- over the Obama administration's use of killer drones, five protesters who oppose the policy and who are charged with trespassing at Beale Air Force Base were told Thursday by a federal judge that they will not get a jury trial.
Defense lawyer Mark Reichel said when contacted after the hearing: "This is a political prosecution, and the defendants should not be judged by a branch of the federal government but by a jury of their peers."
The hearing was short, but not so sweet for the defense. In addition to denying the defendants a jury trial, U.S. Magistrate Judge Carolyn K. Delaney barred them from claiming that their actions were a benefit to society.
The U.S. attorney's office in Sacramento did not want the protesters to have a jury trial. After hauling the five into court on a charge of entering the base for an unlawful purpose -- a misdemeanor punishable by up to six months in prison, a year of supervised release and a $5,000 fine, or five years on probation -- the office argued that the crime is not serious, and thus not legally worthy of a jury trial.
Once the defendants sought a jury trial, Assistant U.S. Attorney Nicholas Fogg further blunted the defense contention that the punishment could be serious by assuring Delaney that, if she decides one or more of the protesters are guilty, he will not seek incarceration, supervised release, or special conditions of probation.
Referencing that promise, defense lawyer Daniel Taylor told the judge Thursday his only argument is that the law leaves the matter up to the judge.
"I'm not entirely sure I have that discretion but, even if I did, I would not exercise it in this case," said Delaney. She said she is persuaded by the government's argument, based on U.S. Supreme Court precedent, that the crime is not serious enough for the defendants to be judged by their peers.
An Aug. 12 trial before Delaney is scheduled for Sharon Delgado, 64, of Nevada City; David Hartsough, 72, and his wife, Janet Hartsough, 71, of San Francisco; Jane Kesselman, 58, of Camptonville, and Shirley Osgood, 65, of Grass Valley. They were arrested Oct. 30 at the Butte County base.
Citing two high court cases in his brief opposing a jury trial, Fogg said: "The Sixth Amendment's jury trial right applies to serious offenses but not to petty offenses. An offense with a maximum punishment of six months or less of incarceration is presumptively a petty offense."
Defense lawyers, on the other hand, insist there is nothing to prevent a court from convening a jury trial in any criminal prosecution.
Article III, Section 2 of the U. S. Constitution states: "The trial of all crimes, except in cases of impeachment, shall be by jury. ... "
The Supreme Court, however, found that the disadvantages of six months or less in prison, "onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive non-jury adjudications." Such interpretations have been criticized on the grounds that the word "all" was not used lightly in Article III by the drafters of the Constitution.
The U.S. attorney's office was asked why, aside from its interpretation of the law, it is opposed to a jury trial for these five people.
U.S. Attorney Benjamin Wagner is out of the country and not reachable. Executive Assistant U.S. Attorney Sylvia Quast wrote in an email: "The government's approach to this case has been reasonable and evenhanded from the beginning ... and there is not a right to a jury trial here. Under the circumstances, the magistrate judge's decision to hold a bench trial ... was the correct one."
When it was pointed out that her answer did not address the question, Quast messaged back: "We are satisfied that this answers the question."
Beale has been a target of anti-drone protests for years. It is home to the U-2, the venerable 1950s spy plane, and the unmanned Global Hawk, an unarmed reconnaissance drone that is an "accomplice" in strikes carried out by armed drones. It gives a theater commander a broad overview and pinpoint target surveillance.
From the outset, deadly drone attacks have been at the heart of President Barack Obama's national security strategy, and their use in Afghanistan, Pakistan, Yemen, Somalia and Libya increased dramatically after he took office.
The targeted killing program has come under heightened scrutiny amid charges by some human and civil rights groups and others that it violates international and U.S. law, has claimed hundreds of civilian lives, and has provoked intense popular anger that has helped al-Qaida and other terrorist groups recruit radicals.