DETROIT—A federal judge said Friday that he “seriously” considered dismissing the Biden administration’s case against seven Christian pro-lifer activists over a peaceful protest in Michigan in light of concerns that “highly emotional” testimony may have unduly prejudiced the jury.
Lawyers for Eva Edl, Cal Zastrow, Chester Gallagher, Heather Idoni, Joel Curry, Justin Phillips, and Eva Zastrow moved to dismiss the case against the group after one of the Justice Department’s witnesses cried throughout her testimony. The defendants are charged in the Eastern District of Michigan with violations of the FACE Act and conspiracy against rights, a charge that could be punished with up to 10.5 years in prison.
The activists are accused of blocking access to the Northland Family Planning Clinic in Sterling, Michigan, on August 27, 2020, and creating a “well-oiled machine” to advance their goals.
Following opening arguments on Friday, Justice Department prosecutors called to the stand a woman named Sarah to testify about her experience at Northland on the day of the protest. As soon as she walked into the courtroom, she began to cry, and she remained emotional throughout her testimony.
As she testified, she spoke about how she and her husband had struggled with infertility before turning to IVF, after which she became pregnant. She said that about 12 weeks into the pregnancy, she was told by a doctor that her unborn child had a mass on his abdomen and that her “son would not live outside the womb.”
Upon receiving this diagnosis, Sarah said that her husband decided to schedule an abortion at Northland. She said that she was “traumatized and intimidated” when she showed up to Northland to protesters, including by people sitting in front of the doors.
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As she and her husband were parked, she said that Eva Zastrow went up to her car and said, “God loves your baby” and “think about judgment day.”
Sarah said that she had started to lose amniotic fluid by this point, but she and her husband and mother drove across the street to wait until the parking lot had cleared. After going back into the facility later in the afternoon, she said that her “son had passed” and that staff at Northland removed the baby while she was still awake. When asked by Justice Department prosecutor Frances Carlson how this had impacted her, Sarah said had post-traumatic stress disorder.
Once she said this, a lawyer for Curry objected, and Judge Matthew Leitman, who is presiding over the case, ordered the jury removed from the room. Sarah was then taken out of the courtroom sobbing. She could be heard crying in the outside hall.
Lawyers for the defense then introduced a motion to dismiss the trial, saying that the jury would be unfairly influenced by the testimony, and led to believe that the defendants’ protest had caused Sarah’s trauma and contributed to her baby’s death.
Leitman acknowledged that the government was not supposed to reveal that Sarah had PTSD, and said that it was a “serious” concern that the emotional discussion of what happened in Northland might sway the jury.
Zastro’s lawyer said it would be “beyond realism” to expect the jury to give the defendants a fair assessment after the emotional testimony, and because the defense lawyers would look bad questioning her. Idoni, who is representing herself, said, “I don’t see how it can be undone.”
Defense lawyers were also concerned that they would “look like ogres” if they cross-examined Sarah, saying that it would be “malpractice” for them to ask her questions after the jury saw her emotional state.
Lawyers for the defense also expressed concerns that the jury could have heard Sarah crying from the jury room. When asked by Leitman, one juror said they could only hear “muffled talking.” Before ruling on the motion to dismiss, Leitman ordered the jury dismissed for the weekend with instructions to disregard the discussion of PTSD and what happened inside Northland.
After more back and forth between the Justice Department and defense, Leitman took a break to consider the motion to dismiss.
Leitman returned to the courtroom after 15 minutes and announced that though he had “very seriously” looked at dismissing the case, he decided that the emotional testimony at the end needed to be “viewed in the context of larger testimony.”
He said that the situation for defense lawyers was “marginally different” after the testimony, but not “meaningfully different,” adding that he was “certain the trial can proceed fairly.”
However, Leitman, who repeatedly referenced potential reviews of the case by the Sixth Circuit Court of Appeals, said that he couldn’t “imagine that I’ve heard the last” of the situation.
Before Sarah’s testimony, defense lawyers asked the jury to remember that the defendants’ actions were based on their belief that a “doctor was going to kill those babies” at Northland, and asked the jury to “set aside their emotion” in regards to witness testimony.
Despite the intense back and forth, the defendants were in good spirits after court adjourned for the day, with several going to sing the “Doxology” in the courthouse stairwell. Edl, an 89-year-old survivor of a Yugoslavian communist camp, said “thank you Lord, hallelujah,” after they were done singing.
On Monday, Caroline Davis, who was involved in the Michigan protest, is expected to testify for the government. Davis pled down her felony conspiracy charge she faced over the incident, and has been instrumental in securing convictions in related cases, including a Tennessee case where six were convicted of violating the FACE Act and conspiracy against rights.
