For the second time this year, federal prosecutors in Chicago are preparing to take an Operation Midway Blitz case to trial.
And for the second time, their case seems to be on the rocks — with days to go before jury selection.
U.S. District Judge April Perry demanded Wednesday that prosecutors appear in her courtroom for a sealed hearing Thursday if they were involved in the decision to redact a set of grand jury transcripts given to her in the case of the so-called “Broadview Six.”
It’s hard to read her order as anything but bad news for the feds. It comes as they prepare for a jury to hear the misdemeanor case against four people accused of impeding an immigration agent last September. The trial is set for Tuesday. Two other defendants were dropped from the case in March.
It’s a low-stakes prosecution, legally speaking. Even if the feds secure convictions across the board, it’s unlikely anyone will go to prison. But it began as a felony conspiracy case against six protesters, and most of them were involved in local Democratic politics.
That all raised questions about freedom of expression and selective prosecution.
The feds insisted this month there was “nothing remotely unusual, let alone nefarious” about circumstances surrounding the transcripts, and they accused the defense of speculating “histrionically.” Defense attorneys have been highly suspicious, though.
Then Wednesday, two days after Perry agreed to look at an unredacted version of the transcripts, the judge demanded the appearance of “any” assistant U.S. attorney “who participated in the decision to redact portions” of the transcript, “whether on the trial team or at the supervisory level.”
That could theoretically include U.S. Attorney Andrew Boutros.
A spokesman for Boutros’ office declined to comment Wednesday.
Perry said she would hold the hearing under seal “due to the anticipated discussion of grand jury materials” and in an effort to avoid tainting the jury pool. That means members of the public and media will not be able to attend or hear what is said during the hearing.
Grand jury proceedings are traditionally treated as sensitive and handled behind closed doors.
The developments seem to raise doubt about whether next week’s “Broadview Six” trial will go forward, after all.
But the feds have been here before. A judge handed down an adverse ruling days before January’s trial of Juan Espinoza Martinez, the man accused of a murder plot against then-U.S. Border Patrol Cmdr. Gregory Bovino, who led last fall’s Midway Blitz deportation campaign.
The ruling seemed to put the case against Espinoza Martinez on thin ice. Prosecutors moved forward with the trial anyway, and a jury acquitted him after three hours of deliberations.
For now, the case against the remaining members of the “Broadview Six” is intact. That could change after Thursday’s hearing. But it’s unknown what Perry saw in the transcripts, and what prompted her to summon prosecutors to her courtroom.
Notably, her concern about tainting the jury pool suggests she still anticipates a trial.
Charged in the case are former congressional candidate Kat Abughazaleh, Oak Park village trustee Brian Straw, 45th Ward Democratic committeeperson Michael Rabbitt and Andre Martin, who served as a member of Abughazaleh’s campaign staff.
Each is charged with a misdemeanor count of forcibly impeding a federal agent. They’re accused of joining a larger group of protesters who surrounded a U.S. Immigration and Customs Enforcement agent’s vehicle on Sept. 26 and pushed, scratched and otherwise damaged it as it approached an immigration holding facility in Broadview.
The transcripts in question have been a point of controversy for weeks, ever since prosecutors announced their intention to drop the felony conspiracy charge in the case. While that seemed like good news for the defendants, their attorneys suspected it was a ploy to avoid disclosing an unredacted version of the transcript to the judge.
The transcript saga began when defense attorneys made a “narrow” request in early April to review portions of the transcripts that showed how prosecutors explained the conspiracy law to the grand jury.
Alternatively, the lawyers suggested prosecutors turn the transcripts over to Perry, so the judge could conduct her own review. The judge agreed to give them a look, and prosecutors filed transcripts, under seal, of grand jury appearances from Oct. 9, Oct. 16 and Oct. 23.
The original indictment was handed up Oct. 23.
The feds filed the transcripts April 23. The next day, the judge entered an order scheduling a hearing for April 29. She also told prosecutors “to bring to the hearing fully un-redacted versions of the transcripts [they had] filed under seal … as well as a copy of any presentation(s) or document(s) shown to the grand jurors summarizing the law.”
But moments into the April 29 hearing, Assistant U.S. Attorney William Hogan disclosed the feds’ plan to drop the conspiracy charge and file a new charging document — abandoning the grand jury’s indictment altogether. Perry wound up denying the defense motion for grand jury transcripts as moot, concluding she no longer needed to see them.
Defense attorneys continued to push for their disclosure, anyway. Straw attorney Christopher Parente urged Perry during a hearing Monday simply to look at an unredacted version, arguing that prosecutors may be hiding something that “could have tainted all of this.”
Prosecutors said they had no objection, so Perry agreed to take a look.
She seemed skeptical at the time, though.
“If I had to guess,” Perry said of the redactions, “it seemed like those were probably related to IT issues.”