Prosecutors in Georgia have been accused of a “complete politicization of the law” and a “judicial pogrom” in the way they are pursuing charges against activists arrested at a music festival held as part of protests against a police and fire department training facility known as “Cop City”.
Protests against the project have caught worldwide attention after one environmental activist was shot dead by police – the first such incident in US history.
Protesters arrested by police face domestic terrorism charges and have been refused bail in what some legal experts say is an attempt to falsely portray them as dangerous extremists and a hijacking of the legal system in pursuit of the political cause of building Cop City.
Legal observers have been shocked by a bond hearing held late last week for people arrested at the music festival on 5 March during a “week of action” to defend the forest south-east of Atlanta earmarked for the $90m project.
The hearing was the second chance at being released on bail for 10 of the 23 people arrested at the festival in part of the forest that is a public park. They were under suspicion of being involved in burning construction equipment and other acts of vandalism earlier that day at the planned Cop City site – less than a mile (1.5km) away.
Prosecutors are pursuing domestic terrorism charges against them and others – at least 41 defendants to date – under the first use of a 2017 Georgia law. Georgia deployed John Fowler, second in command at the state’s attorney general office, as well as several top county prosecutors, to argue against the 5 March group receiving bond, in what is normally a routine affair handled by lower-level attorneys.
Experts consulted by the Guardian said they were shocked at the lack of evidence proffered by the state to justify keeping the arrestees in jail – and at DeKalb county superior court judge Gregory A Adams’ denial of bond in all but two of the cases, meaning he considered them likely to flee and avoid future court appearances, a threat to the community, or both.
Prosecutors told the judge that an arrestee had the phone number of Atlanta Solidarity Fund, a non-profit organization that helps arrestees with bail and attorneys. “This is evidence that he intended to be arrested,” said a DeKalb county prosecutor.
Missing from the characterization was the fact that volunteers at the music festival – and at many events in the public park side of the forest in the year-plus of protests against Cop City – hand out those phone numbers to everyone, including journalists. Nonetheless, bond was denied.
Regarding another arrestee, a prosecutor said: “I have seen photos of him … standing next to signs for anarchy – that’s not a crime … but it lends itself toward there being some veracity for him standing for that.” Bond denied.
A defense attorney pointed out that most arrestees had the same bits of evidence cut-and-pasted on their arrest warrants, including the idea that his client had a home-made shield.
“It is admitted by the state that this is a ‘typo’ – yet my client has been in jail for weeks based on a typo,” attorney Drago Cepar told the judge. Prosecutor’s response: “There were 30, 40, 50 shields out there – I can’t attest that he was carrying one.” Bond denied.
Arrests also mentioned arrestees wearing “camouflaged or dark colored clothing”. At one point, Fowler compared the clothes they wore to a University of Georgia football team uniform, saying it showed they were “part of the same team”.
At the conclusion of the hearing, Steven Donziger, an environmental and human rights attorney who helped Indigenous peoples in Ecuador win a $9.5bn pollution judgment against Chevron over oil dumped in the Amazon rainforest, said prosecutors “seemed to be making it up as they went along.
“They described no act of violence that could possibly be used as a basis for terrorism charges,” he said. The state’s approach, he added, “was to make the anti-terrorism statute a political repression statute targeting progressive activists who challenge the police”.
“This is making Georgia the laughingstock of the world – but it’s deadly serious,” he said.
Donziger, who is also a Guardian columnist, added that “property damage seems to be the worst crime any of these arrestees should be charged with. The purpose seems to be to undermine the constitutional right to protest so ‘Cop City’ can be built. It’s really frightening to see this in the United States.”
Heather Hamel Robles, an attorney at the Phoenix-based People’s Law Firm, said “the political motivations behind the prosecution are very apparent” pointing to the state’s choice to send Fowler, from the attorney general’s office. “It’s very unusual to have the number two in command to show up in a bond hearing,” she said.
Hamel Robles was also surprised at the judge’s denial of bond for most of the arrestees “especially because the evidence against them was very weak … It was shocking how little evidence the state had – let alone to justify such extreme charges.”
The civil rights attorney said the case to date bore similarities to one in which she defended Phoenix-area Black Lives Matter protesters. In that case, all criminal charges against protesters were dropped – including more than 100 felony rioting charges and attempts to tie defendants to what she called a “fake criminal street gang … that does not and has never existed, except as a boogeyman in the state’s head.”
Fallout in the case includes multiple resignations, demotions and even criminal investigations against prosecutors and police, after falsified evidence and other law enforcement abuses were revealed. “I heard all of the same things” at the bond hearing, she said. What happened in Phoenix, she said, “should serve as a warning as to what might happen in Atlanta”.
Another attorney observing last Thursday’s hearing was Alex Joseph, an Atlanta-area former federal prosecutor. Joseph, who has sat through at least 100 such hearings, said the judge “had to rely on the characterization of evidence, not evidence on its face – that this is a ‘mass, organized group actively seeking to do criminal behavior, even nationwide’”.
“I was surprised to hear this level of spin,” said Joseph, who currently represents Georgia municipalities facing litigation and recently published online a legal analysis of the contract underpinning the Cop City project between the City of Atlanta and the Atlanta Police Foundation.
“I was aghast – I never heard this lack of evidence – so much smoke with no fire,” she said. “It was ghoulish, gross theater.”
Marlon Kautz, organizer with the legal defense fund mentioned several times by prosecutors, said the hearing was “simply a confirmation of the approach of the state that we’ve been warning about all along – guilt by association; characterizing what is a broad, social movement as a political organization”.
As for the state underlining his organization’s phone number being found among arrestees, he said, “we’ve given out our number to thousands of people in the last few years.
“Political activists have a right to legal defense, and this points to the state’s intent to illegally disrupt this access,” Kautz said.
“I have to assume,” he added, “that they recognize their repressive methods are illegal and unconstitutional and they know that as long as there are mechanisms to access legal representation, activists can push back.”