When the trial of 12 antigovernment Freemen finally convened last week in Billings, Mont., United States district court Judge John Coughenour was handed some unusual challenges in addition to his customary duties behind the federal bench.
Defendants bleating like sheep, for example. Or cursing and threatening court officials. Some even began belching.
To keep order in the court, three-fourths of the defendants have been exiled to jail cells for their unruly behavior, but Judge Coughenour now faces a delicate ethical question:
What can a judge do to provide a fair trial when the accused refuse to acknowledge that the government, its laws, and indeed its legal system, even exist?
Antigovernment groups from local militia to tax protesters have used such disruptive tactics for years, but the media glare surrounding the Freeman trial has brought them to the forefront nationally. Since the Oklahoma City bombing, America's focus on antigovernment activities has sharpened and increasing attention is being paid to efforts to stem this type of behavior.
"Several fascinating issues emerged at this trial, not the least of which is their conduct in the courtroom," says constitutional law attorney John Frohnmayer from his office in Bozeman, Mont.
While the defiant antics and occasional outbursts of unintelligible Latin phrases have even produced some occasional comic moments, the allegations against the Freemen are serious and part of a detailed undercover government investigation that culminated with an 81-day armed standoff with FBI agents in 1996.
The heart of the government's case involves allegations that the Freemen issued more than 4,000 bogus checks totalling $1.8 billion. In defense, the Freemen have claimed they are sovereign, not subject to federal or state laws and answerable only to the jurisdiction of a county sheriff in their fictional "Justus Township."
Because of strict ethical guidelines involving legal protocol, Judge Coughenour cannot discuss elements of the trial. But last week five sitting federal judges attending a legal conference in Gallatin Gateway, Mont., discussed with The Christian Science Monitor the difficulties of presiding over unruly trials.
Each of the magistrates has presided over trials involving antigovernment tax protesters or cases with remarkable similarities to the Freemen. And according to one, no judge wants to be accused of censorship, so most are fairly tolerant of allowing defendants to speak their mind.
"Every citizen has a right to say what they believe about the court, even if it is bombastic," says Judge Robert Cindrich of Pennsylvania's western district court in Pittsburgh. "What we will not condone is violence such as warning that, 'If you rule against me, I'll blow your family up.' That is different than someone telling me I'm a bad [judge]."
The key to an orderly trial, says Judge Manuel Real of California's central district court in Los Angeles, is to set the tone early. If the defendants make it impossible for the trial to move forward, he says, forcibly removing them to a jail cell equipped with closed-circuit television so they can monitor the proceedings becomes the only option. "The First Amendment is not an excuse for an upset of a trial," he says.
Judge Mark Bennett of Iowa's northern district court in Sioux City agrees. A few years ago, he presided over a case involving defendants affiliated with We The People, an antigovernment splinter group much like the Montana Freemen.
And like the Freemen, members of We The People during the pretrial hearings refused to rise when Bennett entered the courtroom. He said he had no problem with the behavior but he knew the jury might not be so charitable.
"After the jury was chosen but before the trial began, I had a discussion with the defendants," Judge Bennett says. "I told them that anything they did to alienate the jury would go against their best interests."
On the first day of the trial, the defendants apparently had taken Bennett's subtle suggestion to heart. When he entered the courtroom, they rose to their feet.
IN the Freeman case, all but three defendants have elected to defend themselves, though Coughenour has assigned them stand-by attorneys nonetheless.
Casting themselves as "freedom fighters" and "constitutional patriots," the Freemen maintain that they are law-abiding citizens. Some have even compared their struggle to civil rights protesters in the Deep South during the 1960s.
But ironically, perhaps, had the Freemen instead enlisted skilled trial lawyers and made the courtroom a stage for airing their views, some observers say it is possible that a few might have truly walked away from the courtroom as free men with a public more sympathetic to their cause.
"To me, their behavior makes no sense," says Robert Krause, an attorney with the law firm of Spence, Moriarity, and Schuster in Jackson Hole, Wyo., which is well known for defending "underdog" clients like the Freemen. "How you act, the message of your body language, what you say, matters to the jury," he says. "Antagonizing the court is probably not the wisest defense they could present in this case."