Illinois Assistant State’s Attorney Jack Blakey, lead prosecutor in the “NATO 3″ case. (Photo from 2009 State’s Attorney Office press release)

Prosecutors from the state of Illinois are deeply bothered by defense attorneys’ focus on police conduct in the criminal investigation into the “NATO 3″ and the surveillance operation conducted prior to targeting the defendants.

Illinois state prosecutors are arguing a case in which three young men, Brian Jacob Church, Jared Chase, and Brent Betterly, have been accused of committing terrorism and other felony conspiracy offenses. They traveled from Florida to participate in a large protest against the NATO summit in Chicago on May 18, 2012. They were arrested and charged with plotting to commit attacks, including making Molotov cocktails, to disrupt the NATO summit. Their arrests took place on May 16, before any of the major demonstrations held in protest of the summit. [The summit took place on May 19-20.]

The men are being prosecuted with an unused state terrorism law passed after the September 11th attacks.

The court has heard testimony on how Chicago police, for two months prior to the summit, went to community meetings, cafes, concerts, protests, etc, in order to—as she stated multiple times from the stand—”observe, listen and report back any criminal activity.” There was no criminal activity to report yet the police were still recording details from their spying. They also were taking photographs of license plates in the area to see if there were outstanding warrants for individuals at meetings or events.

Prosecutors filed a motion urging Judge Thaddeus Wilson to approve jury instructions that would have instructed the jury to ignore details related to how police handled its First Amendment investigation.

The prosecution claimed it had not objected to this initially because they did not want to “object continuously” and “leave a bad impression with the jury.”

What the Chicago police intelligence unit was doing at public gatherings is called a “First Amendment-related investigation.” To talk specifically about what police were doing, the words “First Amendment” will inevitably be said. However, no defense attorneys have alleged there were any First Amendment violations committed by police. [*Here's the police directive for authorizing First Amendment investigations.]

Nonetheless, the prosecutors told the judge it was wrong for this information to be injected into proceedings. Giving the impression that the Chicago Police Department and undercover officer Nadia Chikko did “something inappropriate” is not appropriate because it is “not true.” Plus, police should be going into locations in the activist community to find “violent anarchists” to stop them from committing crimes and, if the three are convicted, it will show their efforts were valuable to safety.

Also, a state prosecutor said, “CPD did not commit any First Amendment violations in the case.”

Defense attorney Michael Deutsch, who is representing Church, argued this was “improper and prejudicial.” The prosecutors should not be allowed to give the jury any instructions at this point. He also suggested his cross-examination of Chikko had purely gone to the “credibility and motivation” and how she carried out her job while undercover. And the details related to First Amendment investigations were to show all the times they went to shows, cafes, meetings, etc, and “got nothing” out of their surveillance.

To this, Judge Wilson found this was not a problem but bringing up “specifically the First Amendment” was a problem.

Thomas Durkin, defense attorney for Chase, said he thought this sort of focus on the First Amendment investigation was important because they were looking for “violent anarchists” to get around First Amendment issues raised by suspicionless surveillance of activist communities.

The judge did not think it was wrong to make this point, however, it was inappropriate to him to focus on it as a First Amendment issue.

Wilson scolded Durkin for what he said was a violation of a court order that said lawyers were not to raise the issue of why the federal government was not prosecuting this case. He said, “You knew darn well this was a violation,” when you did it in your opening statement and in questions to police witnesses. He even threatened to sanction Durkin.

But, ultimately, Wilson did not agree to issuing an instruction, despite the prosecutor’s panicked statements that “damage” had been done and they could not “unring the bell.” In fact, Wilson suggested the prosecutors may be making more of a deal out of what happened than necessary.

Prosecutors reacted to this decision by saying the “implication of pervasive police misconduct” was a “type of attempt to infect the jury” but conceded it could be dealt with before the jury began to deliberate on a verdict.

It would seem the prosecutors’ panic is a reaction to media coverage and commentary on the trial and not merely what effect it could have on the jury. The media has been focusing on police tactics, which have been the subject of defense cross-examinations of witnesses.

The Chicago Tribune’s Eric Zorn wrote that the “NATO 3″ might be “three stooges.” He added, “The picture that’s emerging from the coverage is of a trio of inept stoners with inchoate violent impulses and delusions of grandeur and feck who were egged on by undercover cops and then grossly overcharged by an overheated state’s attorney’s office.”

“So far I’ve seen no evidence of the menace and scheming implicit in the charge of terrorism,” Zorn added.

Erin Meyer of DNA Info, wrote:

The focus Friday afternoon shifted to First Amendment protections when defense attorneys Joshua Herman and Molly Armour grilled Chikko about the Chicago Police Department’s pre-NATO efforts to ferret out supposed violent anarchists.

They questioned Chikko about undercover missions at the Heartland Cafe in Rogers Park, Permanent Records and various Occupy Chicago meetings. They sparred over what constitutes peaceful protest.

“My reason [for going] was to hear if there was going to be any violence to the city of Chicago,” Chikko said. “Violent anarchists go to peaceful places to recruit.”

Mark Brown, a columnist for the Chicago Sun-Times, wrote a simple yet excellent piece on what he considered the “most alarming revelations” from the trial. These revelations, he said, were not “about the defendants.”

…I’m not a big fan of police spying, especially not these fishing expeditions reminiscent of the Red Squad, the CPD’s dirty tricks unit from days of yore. And to be clear, my quarrel is not with the undercover officers such as Chikko, a gung-ho neophyte carrying out an assignment, but with the higher-ups who should know better.

I’m dying to hear more details about the extent of the intelligence unit’s activities in connection with NATO and the planned G-8 summit that was moved to Camp David. So far we’ve only heard about the undercover missions of the two officers who ensnared the defendants in this case.

The fact that this trial is kindling interest in Chicago police surveillance is what the state prosecutors were trying to prevent through pretrial motions. They seem to have been unsuccessful because this surveillance is an integral part of how Chicago police ultimately encountered the “NATO 3.”

The prosecution claims the police just happened to encounter the “NATO 3″ on May Day, as if it was serendipitous that they managed to find “violent anarchists” they could prevent from launching attacks during the NATO summit. But the defense maintains, through suspicionless surveillance on activist communities in the run-up to the NATO summit, that is how they ended up sending undercover officers to conduct an operation that targeted these three young men.

What the police were doing does seem like a kind of modern day Red Squad operation.

As activists who frequent the Heartland Cafe, where Chicago police engaged in spying prior to the summit, indicated, “they were shocked and saddened to learn that undercover Chicago police officers had monitored patrons’ conversations.”

“A new version of the Red Squad started up right when we don’t have money to pay for the essentials,” said one of the Cafe’s co-founders, Michael James.

In other words, the money spent on this surveillance operation could have been used to fund other city programs and resources that have been cut.