At issue were the following:
- Defense's motion for the release of surveillance discovery, including NSA wiretaps and FISA surveillance of the activist community in Eugene and elsewhere for the past decade or more.
- Change of the trial date
- The unsealing of transcripts and plea agreements of cooperating defendants
- The unsealing of transcripts for Jeff Hogg's grumbles hearing
- The repeal of a protective order placed on discovery of cooperating defendants' statements
- The removal of Daniel McGowan's electronic monitoring device
Most of the issues remain unresolved after today's hearing.
Judge Ann Aiken presided over today's hearing, following the recusal of Magistrate Judge Thomas Coffin due to a conflict of interest relating to a family member who is employed at the law firm of one of the defense attorneys.
Stephen Peiffer of the US Attorney's office addressed the NSA wiretap issue, saying that the US Attorney's office doesn't have clearance to present that discovery. He said he had contacted an attorney in the Counterterrorism Division, and that it would take up to three weeks for them to respond to the brief. McGowan's attorney, Amanda Lee, argued that the discovery request was filed in March, and specifically requested the NSA discovery. The US Attorney didn't file a response to that brief until early this month (August). Lee added that it was the US Attorney's responsibility to have a person from the NSA come to court and make representations. She said that the FISA court and FBI surveillance discovery had not been handed over, either. Peiffer responded by saying that the US Atty's office didn't have clearance for dealing with FISA materials, either. He said that witness impeachment discovery (criminal and drug treatment records) were forthcoming, as well as Eugene Police Department recordings and videotapes. Judge Aiken told them to work out what issues remain unresolved and let her know in a few weeks. The government has sidestepped these discovery issues since the request was filed in March.
Amanda Lee then addressed the issue of unsealing the plea agreements of the cooperating defendants. She argued that the plea agreements are unavailable to the public, that the government has made numerous public statements about the plea agreements, influencing the jury pool, and that the sealing of the pleas are a disservice to the remaining defendants, the public, and the press. She said that not even the defense attorneys had seen the plea agreements. Judge Aiken said she would unseal the transcripts from the hearings, as well as the "informations" (the details of what the defendants are pleading to), but would redact the paragraphs that outline the nature of the agreements made with the government. Finer, Stan Meyerhoff's attorney complained that his client had been labeled a snitch, his picture posted on Indymedia with comments such as "Snitches get stitches", and that someone had handed over tapes to Rolling Stone. Darren Thurston's lawyer (sorry... Fredrickson?) echoed the same sentiments. He said, "There has been an 'outing', a 'blacklisting' of cooperating defendants intended to compromise their safety." The US Attorney said that all the cooperating defendants were very concerned about the release of their plea agreements and the possibility of anyone other than defendants and their attorneys viewing the discovery which contains the statements of the cooperating defendants. Judge Aiken said she would "err on the side of caution" and release all but the redacted paragraphs from the plea hearings, and that Daniel would have to hire an attorney to view the discovery which contains the statements of the cooperating defendants.
Judge Aiken then ruled to unseal the transcript from Jeff Hogg's grumbles hearing, which the government said it had not requested.
Jeff Robinson then asked the judge to review the conditions of Daniel's release, specifically electronic monitoring. He said that pretrial services in Eugene and in New York had no objections. The government said it had no objections, either. Judge Aiken said that since she didn't have pretrial's position on the issue, that she would wait to rule until she heard from them.
Finally, Mr. Robinson asked that the trial date be moved to mid-March due to the mountains of discovery still to come. The government agreed that with the additional discovery issues a postponement was appropriate. The next status hearing is set for the original trial date of October 31st, 2006. All four defendants will be present. Resolution of some discovery issues should be happening within a month.