Kafka pays a visit to Los Angeles Activist
http://www.la.indymedia.org/news/2003/08/76812.php
Sherman Martin Austin's Ordeal: A Taste of the Patriot Act
Article and Interview by
Heidi Werntz and Charles Amsellem.
Enjoying the hospitality of Jennifer Martin's cozy
Sherman Oaks apartment, and the playful affections of her spotted dog, with its
radiantly pleasant disposition, was a warm beginning for this somber occasion.
Martin's twenty year old son, Sherman Martin Austin was recently unjustly
convicted for posting bomb making information on his website, with intent to
further an act of violence. We were there to get their side of the story;
conspicuously absent from the mainstream media's reports on the case. With us that
afternoon, were Sherman's
longtime friend, Chantel, and his girlfriend, Lupe.
It all began on the May 1,
2001 (May Day) demonstration in Long
Beach, California, which
was a turning point for the activist. The police were reportedly out of
control, brutalizing the crowd, arresting Austin and several others after
shooting his calf with 'non-lethal' pellets that sometimes lodge deeply within
the skin, cause bleeding sores, and always smart. He was approached from behind
while videotaping the event when he was shot at close range, with the plastic
ammunition. The incident marked Austin's
first arrest and galvanized his resolve to continue his activism in the
community and on behalf of his website, www.raisethefist.com. RTF, along with
reporting on news items not adequately covered by conventional media sources,
if at all, also was a good source of info on anarchism, police brutality, race
relations, activism, and global social justice issues. As the hits to the
website and the postings on the newswire swelled with activity from web surfers
all over the world, so too did the monitoring from the police, intelligence and
other government agencies from those regions.
The website attracted thousands of non-authoritarians and others that filled
the exchange with their youthful energy and annoyed those charged with keeping
perceived subversives, and their unacceptable independent thinking, in line.
Finally, shortly after the hits to the website from authorities around the
globe spiked, a small army of federal agents and police personnel across
departmental lines raided Austin and
his mother's home on January
24, 2002. Austin’s
mother was not at home when the raid began. Austin, who was eighteen years old
at the time, was awakened by his sister, who informed him that armed men had
their home surrounded.
In charge of the heavily armed cadre, was Special Agent, John I. Pi, of the FBI. Sherman was
questioned for over four hours, while his mother, who arrived approximately an
hour later, was barred from entering her own home. Although when Ms. Martin
arrived she requested a warrant, it took the FBI hours to produce a warrant and
allow Ms. Martin back into her residence. After confiscating all of Austin’s
computer equipment, political literature, and a collection of common items,
Austin and his mother were assured by Special Agent Pi that Austin had
crossed the line and everything would be just fine in the end so long as he
crossed right back, however; Austin was
not taken into custody. Undaunted by this latest outrage by the Thought Police,
Austin attended the demonstrations in protest of the World Economic Forum in New
York. What followed over the past year and a
half was described by the LA Weekly as a series of Kafka-esque twists. The
authorities were shaking Austin up
with a series of arrests, interrogations, and then releasing him only to arrest
him again. After being extradited to California on the
charge of "distribution of information related to explosives over the
internet," he was released without charge. Six months transpired, and the
aforementioned collection of common items was transformed by Special Agent Pi's
reports into menacing terrorist devices. A closed bag of potting soil was
categorized as fertilizer. A Snapple bottle became a Molotov cocktail. A $19.95
disassembled toy car was described as a remote controlled detonator.
Ms Martin's life was turned upside down by what happened to her son: "...I
had this idealistic attitude that the justice system would work. But I found
out slowly, that it just eats away at your freedom and at your rights by
pressuring you from all sides. If you don't agree to what they want you to
agree to, they find other alleged crimes or violations to threaten you [with],
such as... [the] terrorism enhancement." The
terrorism enhancement clauses, when applied to any charge, impose very harsh
penalties. If convicted, Austin could
have faced twenty years in prison. After agonizing over these affairs, Austin
finally submitted to a 'binding' plea agreement of one month in jail and five months
in a halfway house for breaking a law sponsored by Diane Feinstein (D-Calif.),
that prohibits the "distribution of information relating to explosives,
destructive devices, and weapons of mass destruction with intent that such
information be used in furtherance of a federal crime of violence."
(Editor's note-Austin's case number under this provision is [18 U.S.C. &
842 (p) (2) (A)]). During plea negotiations, Austin was
assured that the terrorism enhancement would not apply if he signed the plea.
However, the government reversed their decision when Austin
resolved to challenge the plea agreement. Austin, who did not author the
website with the bomb making info, was hosting it on his server and linked to
it from raisethefist.com. The author of the website was interrogated by Agent
Pi, but was not charged with a crime.
On September 30, 2002 U.S.
District Judge Stephen Wilson rejected the ‘binding’ plea agreement which
entailed one month in custody, and made statements that he wished to give Austin at least
twelve months in custody (see transcripts posted on www.la.indymedia.org
) . According to Sherman’s
Federal Public Defender Ronald Kaye, “The judge’s demeanor was unequivocally
hostile toward Sherman and he
stated that the offense was very serious,” so the defense received permission
from the Court for the probation office to create a pre-plea report to
determine what sentence Austin would
be facing. The pre-plea report included four character references and a
psychological evaluation from a Senior Psychologist of the California State
Prison System, LAC. In the plea report the Psychologist stated that “Mr. Austin
is quiet and personally non aggressive,” and that Austin “is
likely to become a victim by virtue of his youth…and more likely to become
brutalized by the experience of prison than to learn from it.” In addition, the
Psychologist recommended that Austin would
benefit from performing extensive community service. While the pre-plea report
was being prepared, the defense continued to negotiate with the government and
agreed on a second ‘binding’ plea that presented the judge with a sentencing
range of 6 to 12 months, however the prosecution, Justice Dept, and FBI
recommended that Austin be
sentenced to 4 months in prison and 4 months in a community corrections
facility. The second ‘binding’ plea with attached recommendations was presented
to the judge on June
30, 2003. However, the recommendations were not enough
for U.S. District Judge Stephen Wilson, who ordered the prosecutor to contact
the head of the FBI and Justice Department to get their opinion. The final
hearing was scheduled for July
28, 2003, but on the day of the hearing Austin and his
family were told by the defense, while waiting in the court room, that the
Court failed to calendar the hearing. The final proceedings were rescheduled to
August 4, 2003.
On August 4, 2003 the
judge sentenced Austin to
twelve months in custody even though the head of the FBI and the Justice
Department agreed to a four month sentence. The recommendations, and favorable
psychological evaluation were ignored in Wilson's courtroom, and he hammered
Austin with a sentence that the Electronic Frontier Foundation condemned as
being poorly matched to the crime: one full year in federal prison, and three
years of restrictive probation that places virtually all of Austin's computer
activity, telephone privacy, and interactions with activists of like mind under
the thumb of post-corrections officials. A $2000 fine was imposed along with
other outrageous measures like unannounced seizure of his computer equipment
during the probationary period.
"I think the criminal justice system is more like a system of organized
crime for injustice, to basically benefit the people at the top," said Sherman during
the interview. Indeed, it's RTF that has survived numerous hacking attempts
that Austin
believes are from people working with the FBI. "They've also hacked into
my other accounts and commandeered some of my [Instant Messenger (IM) Service
and] email accounts. They were sending messages like, “'You're next' and 'Your
ass is going to jail!' “Austin’s
friends and online acquaintances received messages disguised in his language
tone and nuance attempting to extract information. What about these crimes of
harassment and civil rights/privacy violations? Are there going to be any
investigations, reprimands, or arrests? Of course not, that's only for
anarchists and activists.
Eyebrows were raised when it was discovered that Attorney General John Ashcroft
released a memo the same day that Austin's
sentencing was rescheduled due to an alleged clerical error in the filing of
his sentencing hearing. Ashcroft's memo asks prosecutors to monitor which
judges impose lenient sentences and is assailed by advocates of judicial
fairness and prison reform for limiting judicial independence in sentencing by
putting merciful judges on a watch list. Justice Wilson, who ignored the
Justice Dept's recommendation by imposing an even harsher sentence may not have
had anything to fear in this particular case but the implications for judicial
restraint in general are foreboding nonetheless.
Since we are living in an uncommon era of political repression, and the scaling
back of our rights and civil liberties, it may be best to conclude with
recommendations and lessons that Austin has learned and experienced from the
injustices that he has endured:
If the authorities really want to harass or jail you, they will find common
objects or minor offenses and turn them into major crimes. Furthermore, some
are not above inventing evidence outright to make their case. Therefore,
"...don't let it get to a point where it gets you paranoid and gets you in
a state of fear. Because that's what they want..."On the other hand, don't
fall into their hands by giving them the ammunition they're looking for either,
"...Anything you do online is never 100% secure. You can never assume you
are anonymous online." Austin explained that there are even ways to
monitor a computer that isn't connected to the net.It's not illegal to post or publish
bomb making information; it's illegal to do so with the INTENT to further an
act of violence, which is difficult to prove in most cases.Learn from Austin's
tragic example that a 'binding' agreement from a prosecutor can be thrown out
by the judge and a one month sentence today can turn into a year and more come
sentencing time if you plead out.These terrifying proceedings would weigh
heavily on anybody as they must on Austin. Yet he remained outwardly calm
during sentencing and in the course of this interview by preparing his mind to
expect the harshness of the sentencing and jail time.If you are a committed
activist, in these times, it's a wise policy to squirrel away whatever you can
into a defense fund: "It's just obvious that if you don't have a lot of
money, you can't buy your way out of things. People are convicted and they cop
pleas because they feel like they can't fight the system." If you would
like to contribute to Sherman Austin’s defense fund, please send contributions
to:
Ms. Martin
12115 Magnolia Blvd. #155
North Hollywood, CA
91607
Jmi4678@netscape.net