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Full-text: May 29 2003
Protest zones: “No War for Oil” (October 24 2002)

United States District Court for the District of South Carolina Columbia Division

Filed, MAY 29 2003, Larry W. Propes, Clerk, Columbia S.C.

 




Criminal No.: 3:03-309

 )
United States of America)
)
v.)
)
Brett A. Bursey)
 )

Response to Defendant’s Second Motion for a Jury Trial

The defendant has now filed a second motion asking the court to exercise its discretion and grant him a jury trial. The Government opposes this motion, and notes that by filing this motion, the defendant apparently concedes that the law is overwhelmingly clear and he has no right to a jury trial of a petty offense.

The Government can find no authority restricting a court’s discretion to permit a jury trial when a defendant is otherwise not entitled to one. 1  In fact, there are numerous issues concerning entitlement to jury trials in felony cases which are committed to the discretion of the court, which would seem to support the argument that the court would have the discretion to grant a jury trial in a case involving a petty offense. See: Singer v. United States, 380 U.S. 24, 37-38 (1965) (denial of defendant’s request to proceed {p.2} without a jury in a felony case is committed to the discretion of the court); see also: Wyatt v. United States, 591 F.2d 260 (4th Cir. 1979) and United States v. Holmen, 586 F.2d 322, 323-24 (4th Cir. 1978) (court’s decision to deny a defendant’s motion to rescind his waiver of a jury trial is reviewed by this Court for abuse of discretion). 2 

However, while the court may have the discretion to grant a jury trial, the Government strongly disagrees with the defendant’s argument that the court should grant a jury trial. There are a multitude of sound reasons why no jury trial should be granted in this case.

Initially, if this court grants the defendant a jury trial despite the clear and unambiguous dictates of the statutes and courts, it is likely that at least fourteen jurors will be removed from a district court’s jury pool for the trial, which will necessitate the inconvenience of scheduling their service on felony cases in district court around the trial of this petty offense. In addition, the court system will have to pay the jurors both the standard jury fee and expenses. It is axiomatic that the interests of judicial efficiency and conservation of scarce judicial resources are considerations in every case, and the defendant simply offers no reasoned explanation or argument why these factors should be ignored and squandered in this petty offense case.

When the Fourth Circuit held in United States v. Coppins, 953 F.2d 86 (4th Cir. {p.3} 1991) that a defendant facing multiple petty offenses was entitled to a jury trial, Judge Niemeyer in dissent stated: “Judicial efficiency imposed at no greater risk to the defendant should not change the standard for determining whether the defendant is given a jury trial.” 953 F.2d at 92. Judge Niemeyer’s words proved to be prophetic when the Supreme Court abrogated Coppins in Lewis v. United States, 518 U.S. 322 (1996), and the defendant has not even attempted to establish why he is at any greater risk having this petty offense efficiently tried by the court as opposed to a jury. ¶

While the Government agrees with the defendant that jury trials are an important component of American jurisprudence, the defendant’s arguments that only a jury can protect the public from the allegedly arbitrary enforcement of a petty offense statute is specious on its face and unsupported by any facts or rational argument. Magistrate Judges are routinely called upon to make both simple and very complex factual and legal determinations, and there is nothing so unique about this case which renders it one which should be decided by a jury. In fact, if the court grants a jury trial in this instance, it is difficult to comprehend how the court will be able to justify not granting a jury trial in every petty offense case that comes before it, including traffic offenses. Establishing such a precedent is simply unnecessary and unwarranted.

The Government also maintains that the supposed “facts” of this crime as outlined in the defendant’s motion (and his statements to the media — see below) are grossly inaccurate and evidence the defendant’s intent to make improper arguments to a jury {p.4} about alleged misconduct of law enforcement. Similarly, the defendant appears to be seeking to characterize this prosecution as somehow politically motivated. Neither of these arguments are proper for a jury’s consideration and are a clear indication that the defendant will seek jury nullification of his conviction by making such arguments. Jury nullification is not a proper tactic and courts are expected to guard against it, see United States v. Muse {38kb.html, 59kb.pdf}, 83 F.3d 672, 677 (4th Cir. 1996), and the best way to guard against it in this case is for this court to not become party to the defendant’s deception by granting him a jury trial.

Lastly, the defendant and/or his representatives appear to have undertaken a conscious and concerted effort to prejudice any jury panel in this case by their repeated, inaccurate and inflammatory statements to the media. Attached as Exhibits A-D are some of the articles from the local media as well as The New York Times containing examples of these statements, many of which are attributed to the defendant and his counsel, including one article (Exhibit D) which appeared on the same day this response was prepared.

Thus, the defendant is not only seeking to participate in a procedure to which he is clearly not entitled, but he is deliberately and inappropriately attempting to pervert that very procedure, which he at the same time disingenuously claims is so vital for his “protection.” This Court should not sanction such conduct by granting a jury trial for this petty offense. {p.5}

Respectfully submitted,

J. Strom Thurmond, Jr.
United States Attorney

Signature: John M. Barton

by:

{Signature}

John M. Barton
Assistant U.S. Attorney
(Federal I.D. # 1226}
1441 Main Street, Suite 500
Columbia, S.C. 29201
(803) 929-3000

May 28, 2003 {p.6}

______________________

Exhibit A

{Omitted from my copy} {p.7}

______________________

Exhibit B

© Free Times, Wednesday, March 5 2003:

Feds Charge Bush Protester

The U.S. government is making a federal case out of activist Brett Bursey’s protest against President Bush when Bush spoke at a political rally at the Columbia Metropolitan Airport in October.

On March 7, the office of the U.S. attorney for South Carolina, Strom Thurmond Jr., charged Bursey with entering and remaining in a restricted area where the president was visiting. If convicted, Bursey could be fined up to $5,000 and spend up to six months in jail.

The office issued a summons for Bursey to appear in federal court in Columbia on April 1. He remains free until then.

“We can not fathom that the decision to bring these charges was made by the local U.S. attorney’s office,” says Bursey’s attorney, Bill Nettles. “This decision is the type of decision that could have only been made by a Washington bureaucrat.”

Bursey says the charge validates a criticism that Bush, in his zeal to win the so-called “war on terror,” is running roughshod over civil liberties. On a more lighthearted note Bursey says, “I’m waiting for the Crown Victoria to pull up in my front yard and the men in suits to come knock on the door.”

The case stems from Bursey’s refusal to leave public property after being ordered to do so by airport police and the Secret Service during Bush’s speech. Bursey and other demonstrators were protesting what they see as a misguided obsession by Bush to wage war on Iraq.

Standing in the right-of-way beside a public road, Bursey held a sign reading “No War for Oil.”

The cops say Bursey broke the law because he would not move to the “designated free speech zone.” Bursey says America is a free speech zone.

When Bursey refused to relocate, airport police arrested him and charged him with trespassing after notice. A jury is scheduled to hear that case on April 15.

 Eric K. Ward {p.8}

______________________

Exhibit C

© New York Times, Sunday, April 27 2003:

A Flashback to the 60's for an Antiwar Protester

By Leslie Eaton

COLUMBIA, S.C., April 23 — At the time, Brett A. Bursey says, he seemed to be having a 60’s flashback.

There he was at the Columbia Metropolitan Airport with his antiwar sign. There were the thousands of Republicans gathering to welcome a president. There were the police officers arresting him for trespassing.

The first time this happened was in May 1969, before a visit by Richard M. Nixon. The charges against Mr. Bursey were dropped after the South Carolina Supreme Court ruled that if protesters were on public property — as the antiwar demonstrators were — they could not be charged with trespassing.

Last Oct. 24, 33 years later and about 100 yards away, the now graying Mr. Bursey was again arrested for trespassing, this time before a visit by President Bush. The charge was soon dropped.

But last month, the local United States attorney, J. Strom Thurmond Jr., brought federal charges against Mr. Bursey under a seldom-used statute that allows the Secret Service to restrict access to areas the president is visiting. He faces six months in jail and a $5,000 fine.

This being South Carolina, Mr. Bursey’s story includes lots of colorful history, old grudges and improbable plot twists, not to mention the Confederate battle flag.

But to some legal experts it is also part of a growing pattern of repression against protesters, demonstrators and dissenters. The American Civil Liberties Union says it has found many examples, like increased arrests and interrogations of protesters and the shunning of celebrities who have opposed the war in Iraq.

“When you connect the dots, you see very clearly a climate of chilled dissent and debate,” said Anthony D. Romero, executive director of the civil liberties group.

In particular, Mr. Romero said, there is a growing practice of corralling protesters in “free-speech zones,” which are often so far from the object of the protest as to be invisible. “It’s an effort to mitigate the effectiveness of free speech,” he said.

And he does not buy the argument that such zones are necessary to protect the president and other officials. “John Hinckley wasn’t carrying an anti-Reagan sign when he shot him,” Mr. Romero said.

It was just such a “protest zone” that got Mr. Bursey in trouble last fall. A spokeswoman for the airport said officials there had established a protest area on the verge of a highway, a good half mile from the hangar where the president would be speaking. (Airport police are not sure if anyone actually protested at the official zone, she said.) {p.9}

Mr. Bursey hoped he and some friends could protest somewhere closer, maybe across the road from the hangar, he said. The police in Charleston and Greenville had been accommodating, he said, when he had asked to avoid the protest zones, which he described as being “out there behind the coliseum by the Dumpsters.”

It did not work this time.

“We attempted to dialogue for a while, them telling me to go to the free-speech zone, me saying I was in it: the United States of America,” Mr. Bursey said. Finally, he said, an airport policeman told him he had to put down his sign (“No War for Oil”) or leave.

“‘You mean, it’s the content of my sign?’ I asked him,” Mr. Bursey said. “He said, ‘Yes, sir, it’s the content of your sign.’”

Mr. Bursey kept the sign and was arrested; he said he watched Air Force One land from the back of a patrol wagon and spent the night in the county jail.

A Secret Service agent was present at the arrest, Mr. Bursey said, but he added that no one could have seen him and his companions as a security threat. “There was no one under 50 in that crowd,” said Mr. Bursey, who is 54. “In my mind, at that time, we didn’t pose a security threat; we posed a political threat.”

A spokesman for the United States attorney’s office, Scott N. Schools, said the message on the sign was not the problem. “It’s not the fact of what Mr. Bursey was doing,” Mr. Schools said. “The problem was where he was doing it. That’s the basis of the prosecution.”

Mr. Schools did allow that federal prosecutions of protesters at presidential events had been rare.

Since 1992, only a dozen cases involving this part of the United States Code, Section 1752 of Title 18, have been referred to federal prosecutors by the Secret Service and other government agencies, according to TRACfed, a database of federal enforcement information at Syracuse University.

Most of those referrals were dropped; three resulted in trials or pleas (the best known was the prosecution of a mentally ill and heavily armed man who tried to hand-deliver a letter to President Bush at his Texas ranch).

Mr. Schools said he could not comment on why the government was taking the unusual step against Mr. Bursey, but he said it would become clear at the trial, which is likely to be in the next month or two.

“Nobody’s seen a case like this before,” said Bill Nettles, a former public defender who is on Mr. Bursey’s legal team. “I have to wonder if some of it’s not Brett.”

By this he means Brett Bursey the local character, professional protester and liberal voice in a conservative state (he’s a vegetarian in the land of pork barbecue).

Since 1968, “I’ve been a political organizer,” Mr. Bursey said. “That’s been my job, that’s been my mission. I’ve at least been diligent at it.”

The son of a Navy dentist, Mr. Bursey has a life story compelling enough to be a novel. And at least some of it appears to be; anyone who has read Pat Conroy’s 1995 best seller “Beach Music” will {p.10} remember the student radicals who tried to destroy a draft board office, only to discover at trial that one of their leaders (and friends) was a government agent.

That happened to Mr. Bursey, and he ended up spending almost two years in the penitentiary for malicious destruction of property — as he puts it, for spraying “Hell No We Won’t Go” on walls. But not before he spent some time hiding in New York City (he says his family feared he would be killed in prison). Then he was arrested in Texas for buying 500 pounds of peyote buttons, but beat that charge on a technicality, he said.

Indeed, he has been arrested so often that although he thinks the first time was when he burned a Confederate battle flag, he is not sure. “Lordy, it was such a busy time,” he said. “My chronology has been kind of messed up.”

Unlike most of his peers, Mr. Bursey never got a nine-to-five job; instead he founded “progressive” organizations and started an alternative weekly newspaper. And he protested against things: nuclear power, nuclear warheads, government corruption and, of course, the aforementioned Confederate battle flag, which until two years ago flew on the dome of the Statehouse here.

Columbia, however, is not exactly a protest-friendly town, especially these days.

Yellow ribbons are everywhere, from the airport to the Statehouse to Angeline’s Beauty and Wig Salon on Assembly Street. Instead of advertising sandwich specials, the sign outside a Wendy’s reads “Support Our Troops.” And plenty of people remember Mr. Bursey’s youthful transgressions, including the county sheriff, who arrested him at the airport in 1969.

“I’ve told Brett that in this climate, in this state, there is a real possibility that he gets convicted,” said Mr. Nettles, the lawyer.

In the current case, he plans to argue that the federal statute is unconstitutional as it applies to Mr. Bursey, who he said was not the only person in the area the Secret Service says was restricted; the others, he says, were mostly Bush supporters. And Mr. Nettles said he was surprised that the federal prosecutors had not tried to drop or settle the case, which is attracting attention to his client and his views.

“If they really wanted to torture Brett,” he said, “if what they really wanted was to take his voice — they’d dismiss it.” {p.11}

______________________

Exhibit D

© The State, Wednesday, May 28 2003:

Lawmakers ask Ashcroft to clear S.C. protester

By Rick Brundrett
Staff Writer

Eleven members of Congress sent a letter Tuesday urging U.S. Attorney General John Ashcroft to drop the federal case against anti-war protester Brett Bursey, arrested during President Bush’s visit to Columbia last year.

None of the U.S. House of Representatives delegation who signed the letter is from South Carolina. All but one are Democrats; most are from Massachusetts or California.

Bursey, 54, of Lexington, faces trial June 24 in Columbia on a federal charge of refusing to leave a restricted area at Columbia Metropolitan Airport, where the president was visiting Oct. 24. Bursey carried a sign that read, “No War For Oil.”

If convicted of the federal charge, Bursey faces up to six months in prison and a $5,000 fine. Columbia airport police last month dropped a trespassing charge against Bursey.

Bursey said Tuesday he was “gratified” by the congressional support.

“My argument is that the (U.S.) Secret Service is being used to protect the political security of the president, and that’s not their job,” he said.

The letter to Ashcroft, released by Rep. Barney Frank, D-Mass., said there is “no plausible argument that can be made that Mr. Bursey was threatening the president by holding a sign which the president found politically offensive.”

Besides Frank, the letter was signed by Reps. Howard Berman, D-Calif.; John Conyers, D-Mich.; William Delahunt, D-Mass.; James Langevin, D-R.I.; Zoe Lofgren, D-Calif.; Edward Markey, D-Mass.; Jerrold Nadler, D-N.Y.; Ron Paul, R-Texas; Loretta Sanchez, D-Calif.; and Melvin Watt, D-N.C.

Many of the delegation are leaders on the House Judiciary Committee or the House Select Committee on Homeland Security. {p.12}

______________________

Certificate of Service

{Case caption, omitted}

I hereby certify that I am an employee in the Office of the United States Attorney for the District of South Carolina, Columbia, South Carolina, and on May 28, 2003, I served one true and correct copy of the Response to Defendant’s Second Motion for a Jury Trial, in the above-captioned case via first class United States Mail, return address clearly stated, proper postage affixed thereto, addressed as follows:

William N. Nettles, Esquire
914 Richland Street, Suite A-102
Columbia, SC 29201

John H. Blume, Esquire
1247 Sumter Street, Suite 202
Columbia, SC 29202

Rauch Wise, Esquire
305 Main Street
Greenwood, SC 29646

Signature: Tracey S. Donaldson

{Signature}

Tracey S. Donaldson

Footnotes

Each footnote appears entirely on the same page with its text reference.  CJHjr

 1  In United States v. Morrison, 425 F.Supp. 1235, 1239 (D.C. Md. 1977), Judge Kaufman does question whether the court had such discretion, but this decision dealt with constitutional issues not present here.

 2  The Government considers the language the Mississippi Legislature used when enacting Uniform Rules of Circuit and County Court Practice in Mississippi state courts as cited by the defendant in his motion to be neither authoritative nor relevant.

 

Source: Photocopy of a duplicate original (the court’s file copy), scanned to pdf.

By CJHjr: Converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, highlighting.

This case: United States v. Brett A. Bursey (D.S.C., No. 3:03cr309 {175kb.html}, criminal information filed March 7 2003, jury trial denied June 4 2003, bench trial Nov. 12-13 2003, bench trial Nov. 12-13 2003, verdict Jan. 6 2004: guilty, $500 fine (Bristow Marchant, U.S. Magistrate Judge), district appeal docketed Jan. 13 2004, affirmed Sept. 14 2004 (Cameron McGowan Currie, U.S. District Judge), circuit appeal docketed Oct. 7 2004, affirmed July 25 2005 {64kb.pdf, 64kb.pdf}, rehearing denied Sept. 8 2005 (4th Cir., No. 04-4832), petition for certiorari docketed Dec. 14 2005, certiorari denied Jan. 17 2006 (U.S., No. 05-767).

Previous: Defendant’s Second Motion for a Jury Trial (May 27 2003).

Next: Order, denying a jury trial (June 4 2003).

See alsoOther Secret Service protest zone cases” on the docket-sheet page. Brett Bursey

This document is not copyrighted and may be freely copied. The newspaper articles, part of this court paper, are copied here as fair use in the report of a judicial proceeding.

Charles Judson Harwood Jr.

CJHjr

Posted Dec. 14 2003. Updated June 4 2008.

http://homepage.ntlworld.com/jksonc/docs/bursey-dsc-d23.html

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