November 15 – Sol Fund 3 General and Special Demurrers
The motion is summarized for your reading pleasure below. The full thing is available here.
GENERAL AND SPECIAL DEMURRERS TO COUNT ONE OF THE INDICTMENT
A. Introduction
In the opening lines of Anna Karenina, Leo Tolstoy observed, “All happy families are alike; each unhappy family is unhappy in its own way.” Indictments suffer the same fate: proper indictments are alike in setting forth the allegations with clarity. Defective indictments – those that are subject to a general or special demurrer – are flawed in their own way. The indictment in this case is extraordinary in the breadth and depth of its inadequacies.
| LIST OF FAILURES OF COUNT 1 |
| doesn’t actually specifiy an offense |
| doesn’t say what the rico conspiracy is |
| doesn’t say what facts the allegations are based on |
| doesn’t say when the thing happened |
| doesn’t say when people joined the conspiracy |
| doesn’t id coconspirators |
| doesn’t follow statute about how an indictment should be |
| doesn’t actually say what the racketeering act is actually supposed to be |
| doesn’t say what’s supposed to be a conspiracy vs a racketeering act |
| says 1A activity is criminal |
| doesn’t connect ‘racketeering’ acts if any with ‘conspiracy’ act if any |
| doens’t really define the enterprise or connect it with the acts |
| has random stuff that happened literal centuries ago |
| has random stuff random anonymous people maybe said |
| mentions stuff random unrelated people did |
| talks about like zapiatistas and syrians and shit |
| basically reads like a high school term paper |
An indictment has to state the offense either in the terms and language of Georgia Code or “so plainly that the nature of the offense charged may easily be understood by the jury.” Nope
B. Legal Basis For Special and General Demurrers
A general demurrer is the failure of the indictment to allege an offense. If a defendant could agree that every fact alleged in the indictment is true and still be innocent of the crime charged, a general demurrer would succeed. Sometimes, it’s about the essential elements not being alleged, other times the issue is the facts alleged don’t support the elements. This indictment has boith problems.
A special demurrer addresses the failure of the indictment to allege the facts with sufficient particularity. It has to lay out, the date of the offense (and in this case, the date that any individual defendant allegedly joined the conspiracy) or at least a narrow date range, the identity of the victim, the location of an offense, and so on. Basically, the special demurrer says “ok, if everything you said was true the crime would have been committed but you haven’t been specific enough about the who, what, when, and where to let me actually defend myself.
If the court grants a general or a special demurrer, the result is the dismissal of the targeted count of the indictment. The prosecutor can’t just do edits and keep going, they have to take the whole thing (at least for that count) back to the grand jury.
The last part of B is a long list of precedents showing how much courts hate inadequate indictments, which is at the bottom of this document so you can preserve your strength
C. The Inadequacies of the Indictment
All the precedents basically say an indictment must do more than simply cite a statute or list the elements of the offense. It must allege the outlawed conduct in an unambiguous manner that is not exploiting an inherently vague statute. It must allege facts, not just generic elements. It must provide the necessary information for each offense when the indictment alleges a compound offense, such as RICO.
The motion then points out that there’s a totally unique problem with this indictment in particular which is that this particular indictment has tons of information totally unrelated to the crimes charged, and statements from anonymous sources. It basically argues no precedent deals with this because it’s just so obviously innapropriate. “An indictment is not supposed to be a Wikipedia entry, or a high school term paper. Nor is an indictment a public relations script. Or a political manifesto.”
1. Failure to Identify or Properly Allege Any Racketeering Acts General and Special Demurrer
A RICO conspiracy charge requires proof that a defendant conspired to participate in the affairs of an enterprise through the commission of at least two predicate (racketeering) acts.
The defendant is not required to participate in the racketeering acts, but must agree to do so, or agree to endeavor to do so, or agree to aid and abet the commission of at least two racketeering acts.
The indictment does not identify the specific two racketeering acts that any of the defendants allegedly conspired to commit. In its list of 225 acts, many are legal and none are clearly any of the crimes that are listed as being ‘racketeering’.
Also, a conspiracy requires some form of agreement. The indictment doesn’t specify which defendants it thinks actually agreed to do anything. Instead, they have to guess. They don’t know if the prosecution will be trying them for some of the 225 acts they are not even named in.
2. The Enterprise Is Inadequately Defined General and Special Demurrer
For RICO to be applied, there has to be an enterprise. But the prosecution doesn’t really describe one. They kind of hint there might be something called “Defend the Atlanta Forest” but it doesn’t allege any structure or that it is an ‘association in fact’. In fact, it emphasizes it is a “broad, decentralized, autonomous movement” which “does not recruit from a single location, nor do all [its] members have a history of working together as a group in a single location.”
Also, the indictment alleges that DTF movement/enterprise began a year before the City of Atlanta acquired the land to construct the training center. One of the defendants ONLY has an overt act before Cop City was ever contemplated.
The indictment dates the inception of the enterprise as May 25, 2020. Though not alleged in the indictment, the killing of George Floyd occurred on May 25, 2020.
It also seems to say anyone who is an ‘anarchist’ with certian beleifs about the government,, the police, and the environment, would seem to qualify for RICO. This violates the first amendment, and the Supreme Court has overturned this kind of thing time and time again. Some choice quotes from the good old supreme court: “Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence)” and a “blanket prohibition of association with a group having both legal and illegal aims” would present “a real danger that legitimate political expression or association would be impaired.”
Even if this was an organization, it’s totally unclear when anyone is meant to have joined or what status anyone has, or if they were members for months or years or a couple of hours.
The indictment alleges that many people committed a variety of crimes. But membership in an enterprise has not been properly alleged. The demurrer to this Count should be granted based on the failure to allege a violation of the RICO Act.
3. The Indictment fails to allege a sufficient relationship between the overt acts and the enterprise Special Demurrer
The indictment does not allege how most of the events (the 225 “overt acts”) related to the enterprise, or the alleged criminal goals. The various money-related events that address the conduct of Defendants do not allege the essential elements of a money laundering offense and fail to explain how any of the transactions had a relationship to the efforts to deter the construction of the training center or to achieve the goals of the coalition. One can speculate about the reason that food, or kitchen supplies, were purchased, but an indictment is not supposed to leave the defendants speculating.
Regarding the allegations concerning communications in the “Scenes Blog,” the indictment provides insufficient facts to allege that these communications were criminal threats, fighting words (OCGA § 16-11-39), terroristic threats (OCGA § 16-11-37), or otherwise prosecutable conduct.
Even if the prosecution labels the communications with Scenes Blog as “urging” people to riot, this type of activity is protected First Amendment speech. Brandenburg v. Ohio, 395 U.S. 444 (1969) (encouraging, advocating, or urging people to violate the law is not a crime; to prosecute such speech, the state must prove the defendant “incited” imminent lawless action)
This prosecution sends a clear message: “If you join a protest in Georgia, you are not just exposed to a misdemeanor trespass prosecution, you risk being prosecuted as a racketeer and face twenty years in prison.” This Court should enter an Order dismissing the indictment to refute that unconstitutional message.
4. The Failure to Individualize the Allegations Or Specify Relevant Dates Special Demurrer
The vagueness of the allegations that connect the overt acts to the conspiracy is exasperated by the failure to properly identify the individuals’ personal participation in the conspiracy. The defendants are individuals. They are being prosecuted individually and will be mounting individual defenses. If convicted, they will be punished individually. Yet, the indictment thrusts them all into an overarching conspiracy and fails to reveal the specifics of what any individual defendant did.
5. The Irrelevant Background Information Special Demurrer
This section just absolutely drags the indictment for its goofy description of anarchism that goes on for over 20 pages, none of which is relevant to anyone or admissable at trial. The indictment is like “Beginnings of anarchist ideals date back centuries, though usage of the term “anarchy” did not exist until the 1800s.” Cool fact bro, how does this relate to why someone should be convicted under RICO? Why all the talk of autonmous zones from Oregon to Aleppo? And talk of ‘black-clad’ randos who can’t be reached by the Confrontation Clause?
The indictment is generally read to the jury before juty selection and before deliberations. Are they really gonna hear all this inadmissible guff? Or is this just for the papers
In conclusion, this needs to be sent back to the grand jury, and they should come back with a reasonable indictment if they can - which perhaps they cannot.