When Prosecutors Showed the Jury a Pipe Bomb Making Recipe in the ‘NATO 3’ Trial
If any single moment exemplifies what is horribly wrong with this trial, the moment when Illinois state prosecutors had a pipe bomb making recipe admitted into evidence and showed it to the jury while an explosives technician from the Chicago police department was on the witness stand is such an example.
A defense attorney had just finished a cross-examination of one of the undercover police officers involved in the case, which seriously called into question his credibility, when defense attorneys for the “NATO 3” became infuriated. They had learned prosecutors were going to have a pipe bomb making recipe admitted into evidence.
The three men, Brian Jacob Church, Brent Betterly and Jared Chase, are charged with material support for terrorism, conspiracy to commit terrorism and possession of an incendiary device charges. They have been on trial for the past couple weeks in a state case that is expected to conclude on February 6 when closing arguments are given.
Sarah Gelsomino, a defense attorney for Church, had asked Chicago undercover police officer Mehmet Uygun, who infiltrated the activist community in Chicago and targeted the three men, about whether pipe bombs had ever been mentioned in any of the recorded conversations played for the jury. Uygun admitted that none of the men had ever specifically said “pipe bombs.”
Prosecutors argued the instructions for pipe bomb making were recovered in “plain view” in the apartment where the three had been staying in Chicago.
Michael Deutsch, also a defense attorney for Church, suggested the prosecution had taken a “whole bunch of papers from a bag.” The writing in the recipe, which is handwritten, did not match the handwriting of any of the defendants. They were just going to “put in some evidence of how to make a pipe bomb.”
A lead prosecutor in the case, Jack Blakey, downplayed the issue of whether or not the “NATO 3” ever read the recipe. It was in “plain view” in the apartment where they were staying so it was admissible and publishable, he argued.
“Where’s the testimony it’s in plain view?” Deutsch asked.
Blakey said it was on the table.
Again, Deutsch asked, “Where’s the testimony it’s in plain view?” He said this recipe is “highly prejudicial.”
Blakey read from the transcript of a recorded conversation and said that they had asked for pipes. He said something about Obama’s re-election campaign headquarters. He mentioned, again, that it was on table in the residence where they were staying. It defied “common sense,” he claimed, to suggest this was not relevant. It was not far from where they had been “making fire bombs.”
“Here’s the problem: At no time on any tape is there any reference to a pipe bomb,” Deutsch stated. They are “trying to bootstrap a pipe bomb in this case.” He asked once more, “Where’s the pipe bomb evidence in this case?”
Thomas Durkin, who is the defense attorney for Chase, argued the insistence that the state can link the recipe to something planned for Obama’s headquarters was not coming from a position of “good faith.” His headquarters were on the sixth floor of the Prudential Building. There was “no way anybody could have gotten up there.”
The prosecutors had already tried to get the judge to allow a bag of documents to be shown to the jury. The judge did not allow it. Now, it seemed like they had grabbed a salacious document from inside in some kind of last-ditch effort to save their case from being lost.
Uygun was still on the stand. After the defense had their turn with him, they wanted to blind side the prosecutors and ask him about this recipe.
Judge Thaddeus Wilson decided the pipe bomb making recipe would be allowed. “They live there. They were in and out of there. It was recovered from the location,” he added.
It was possible they saw it, Wilson said. It “doesn’t matter whether or not pipe bombs were made. It “doesn’t matter if they were foolish with plans or it was impossible.” “It is relevant” and “not overly prejudicial in light of the balance the court must maintain.”
Deutsch complained, “They’re going to put in a document and we can’t cross-examine anybody.” Plus, “Did they ever try to compare to any fingerprints?”
The prosecution was not going to put a person on the stand who seized the paper and cross-examine him. Although testimony on recovery of the documents in the apartment was heard already, the judge did ask the prosecution, “Why then is that person not saying they recovered this document?”
When the documents in the apartment had been asked about, the witness asked about them should have also been asked about the pipe bomb making recipe.
Suddenly, Durkin had the recipe on a screen for the court to view. “This isn’t like a page out of a book,” he said. It is an “out-of-court declaration by someone.” Someone wrote this and so, he argued, it was essentially hearsay evidence.
The judge actually took a moment to go over the court transcript of proceedings to verify whether the prosecutors had tried to full a fast one on the defense. He concluded that the defense should have confronted what was in this bag of documents earlier in the trial when the court would not have allow the prosecutors to publish them for the jury because the defense objected.
“Do you think I would sit back and let them admit a recipe for making a pipe bomb?” Durkin asked.
The defense objected to the undercover officer being asked about this document. The prosecution waited for the Chicago police department’s explosive technician from the bomb and arson unit to ask about it. (Judge Wilson also claimed he had done “enough of these drug search warrant cases” to know this would happen.)
Yvens Augustin, the explosive technician, took the stand. He had seized the Molotov cocktails from a white garbage can in the apartment. He poured the gas contents of the beer bottles down the toilet. It was probably in violation of EPA regulations. But that was not relevant to anything in this case.
Prosecutors asked Augustin about the “How to Build a Pipe Bomb” recipe. (Note: This is the title the prosecution must have given it. I did not see a title on the page when I was looking at the document in the courtroom.)
“Would this create a functioning pipe bomb?” a prosecutor asked. “Yes,” Augustin said.
Imagine the effect this felonious document had on a jury that is going to decide on February 6 whether the “NATO 3” are terrorists.
The document read, “Grind ammonium nitrate fertilizer pellets into a powder like flour. Proceed with step 2 immediately in a dry container.” It advised someone making the bomb to use fuel, oil, gas or motor oil in a “1/1 ratio mixed with 16 times that volume finely ground fertilizer.” It also said that the mixture should be spooned into an “iron or steel pipe, which has an end cap.” If a pipe was not available, it was suggested that one could use a “dry tin can, glass jar or heavy walled cardboard tube.”
The explosives technician told the jury this was a “functional recipe.” He described how pipe bombs could be used to “kill people.” He also gave a vivid description of how a pipe bomb would explode.
Deutsch, during cross-examination, asked Augustin when he had first seen this document. He answered, “Well after the incident.”
On May 17, 2012, Augustin went to the apartment to seize the Molotov cocktails, but the recipe from the apartment had not been shown to him until preparation for trial. In fact, he said it was shown to him “last week.”
A pipe bomb making recipe apparently relevant to the case was shown to an explosives technician in the bomb and arson unit of the Chicago police department, who was involved in seizing evidence for the case, twenty months after he had been to the apartment.
There was no ammonium fertilize, gas, motor oil or other fuel found in the apartment.
Augustin did not know who wrote the recipe. He did not know if it had been tested for fingerprints. He did not know where the recipe had been found in the apartment. He had only been informed of the four beer bottles with gasoline.
The prosecutors did inform the jury through a stipulation that the recipe was not written by any of the defendants.
When Durkin had a turn with the explosives technician, Augustin said it fair to say it was a “couple of days ago he had received the document.”
“Did they tell you they’re having problems with their case?” Durkin asked. Judge Wilson objected and told him to sit down.
Let’s consider the facts: It was moments before the prosecution rested. They had been putting on a case for more than nine days. They had tape recordings of conversations where they contend pipe bombs came up because Church talked about getting “metal pipes” at a steel mill for pipe bombs. But, they never tried to connect these words on tape to the recipe by asking undercover police officer Nadia Chikko or Uygun to confirm for the jury that this was a recipe and possibly related to what they had talked about in a park on May 4.
It was only after the credibility of the state’s most key witnesses, the two undercover officers, had been seriously assailed through defense cross-examination that they decided to take the step of entering this recipe capable of arousing inflammatory feelings amongst members of the jury.