DETROIT — Nine members of a Michigan militia will be released from jail pending trial after a federal judge on Monday harshly criticized the government's claim they had conspired to overthrow the U.S. government.
The decision is a significant defeat for federal authorities, who spoke in tough and triumphant terms after arresting members of a southern Michigan group called the Hutaree in March and charging them with conspiracy to commit sedition and attempted use of weapons of mass destruction.
The government "need not wait until people are killed before it arrests conspirators," U.S. District Judge Victoria Roberts said. "But the defendants are also correct: Their right to engage in hate-filled, venomous speech is a right that deserves First Amendment protection."
While Roberts ruled only whether to keep the eight men and one woman in jail until trial, her decision – reached after nearly 10 hours of hearings and detailed in 36 pages – offers an early look at her thoughts on the strength of the government's case.
In court papers and testimony before Roberts, prosecutors and an FBI agent claimed the Hutaree are violent, anti-government zealots who plotted to kill police officers in an effort to spark an uprising that would take down the federal government. Instead, the judge said the rambling, scornful recorded conversations offered as evidence didn't prove the group poses an imminent threat.
"Discussions about killing local law enforcement officers – and even discussions about killing members of the judicial branch of government – do not translate to conspiring to overthrow, or levy war against, the United States government," Roberts said.
She said the nine defendants in custody can be released until trial under strict conditions, including electronic monitoring. They won't actually be freed until they return to court for paperwork and other processing Tuesday.
Assistant U.S. Attorney Ronald Waterstreet asked the judge late Monday to freeze the release until the U.S. Justice Department could be consulted about an appeal, citing the fatal shooting Monday of a Detroit police officer in a drug house. That slaying had no connection to the Hutaree, but prosecutors have said the militia's plans included killing a police officer and then bombing the funeral to increase the death toll.
Defense attorney William Swor, who represents militia leader David Stone, called Waterstreet's argument "outrageous."
Observers cautioned that U.S. Attorney Barbara McQuade and her team should be worried about Roberts' assessment of their case, rather than her decision to release the defendants pending trial.
"The feds are in big trouble," said Lloyd Meyer of Chicago, a former terrorism prosecutor who won decades-long prison sentences against violent militia members in western and northern Michigan. "If they can't persuade the judge by clear and convincing evidence that the defendants are dangerous, how can they convince 12 jurors beyond a reasonable doubt? Her ruling looks like the feds are prosecuting U.S. citizens for jibber-jabber."
The group, based in Lenawee County near the Michigan-Ohio border, is led by Stone, 44, of Clayton, Mich. The other defendants include his wife, Tina Stone and two sons, David Stone Jr. and Joshua Stone.
During two days of hearings before Roberts last week, prosecutors tried to show how dangerous they perceived the Hutaree militia to be. The evidence included a recording made by an undercover agent of David Stone and others talking about killing police.
In a separate talk inside a van on a trip to Kentucky, the elder Stone was recorded saying "it's time to strike and take our nation back so that we may be free again from tyranny."
But no specific names or dates were disclosed, and some conversations were sprinkled with laughs and a mix of subjects, including strippers and drawing Hitler mustaches on photos of state troopers.
The judge wasn't impressed: "This so-called speech – never delivered outside the van – speaks of reclaiming America, not overthrowing the United States government," Roberts said.
Prosecutors were stung when an FBI agent who testified at the demand of defense lawyers said she couldn't reveal much because she hadn't lately reviewed investigative reports.
Roberts said Monday that prosecutors failed to rebut the defendants' position that the Hutaree's "live-fire training" amounted to shooting at dirt mounds on private property twice a year. With just a few exceptions, all weapons and ammunition seized by agents were legal, the judge said.
"Her opinion is a shot across the bow," said Alan Gershel, former head of the criminal division in the U.S. attorney's office in Detroit who now teaches at Thomas M. Cooley Law School in suburban Detroit. "It's fair to say this should cause the government some concern, but I don't think it's an indication the case is in dire straits."