March/April, 1999 Volume XIII Number 5

From the record

Below we offer you a peek into some of the courtroom procedures and arguments that resulted in a $109 million dollar judgment. Some of the biases and inaccuracies are immediately evident, others are more subtle.
For example, defendants are entitled to a jury of their peers.
But the peer group that would be most equal to the defendants are those who oppose abortion and believe that God's Word surpasses all authority. Yet these are the very potential jurors most speedily removed from such cases.
Elsewhere, defendant Donald Treshman established a benevolent fund specifically for the support of the family of a man accused of killing an abortionist in 1993. There is nothing wrong, immoral, or illegal about trying to assist the family (wife and two children in this case) of someone accused of a crime. But note that Planned Parenthood's Vullo misrepresents the fund as a defense fund for Michael Griffin himself.
Let's assume it could have been a defense fund for an accused man.
Is that wrong, immoral, or illegal?
Not in the United States.
Still, Vullo mischaracterized the fund intentionally and goes so far as to transition from stating that the fund was for a defense, to explicitly stating that the fund was for the abortionist's murder. She states that, "Treshman helped set up a defense fund for his [abortionist Gunn's] murder."
We have taken pains to allow Planned Parenthood present you with the core of their argument in the limited space we have. We encourage you at each accusation made to ask yourself, "Is what she complains of illegal or immoral?"
We think the "reasonable person" will wonder how it is that long-standing social protest can be distorted into a "true threat" and used to silence those who oppose abortion Unborn babies.

Voire dire

PLANNED PARENTHOOD ATTORNEY MARIA VULLO: In reading your questionnaires, I also noticed that on some occasion, some of you said that you might not obey a law that you thought was wrong. Do any of you, who answered this way, feel that there are laws against violence, against killing other people, that under certain circumstances, you might not obey? Anyone think that?
I am going to try to do this in your number order, which may not be in the order in which you are sitting, I assume.
Juror number one, yes, sir. You indicated that you had heard about the killing of doctors in New York and Florida.
Did you hear about that through the media?
JUROR 1: Yes.
MS. VULLO: And do you think that those stories were fairly reported?
JUROR 1: Yes.
MS. VULLO: And I saw in your questionnaire, that you are involved with a number of church and charitable organizations. Can you just tell me a little bit more about that?

JUROR 1: I am involved with the Trinity Episcopal Cathedral. . . .I am involved with some outreach programs at Trinity Episcopal Cathedral here in Portland. I have also been involved with the Alzheimer's Respite Center here in Portland. And I believe that would summarize it.
MS. VULLO: Thank you. I think the next one is juror number 12.
Sir, how are you this morning? You indicated, in response to one of the questions, that laws should be obeyed, but you also indicated that if a law was immoral, you would not obey it. Can you explain that distinction for me?
JUROR 12: Well, I believe we should obey God's laws, and if they make laws that are contrary to God's law, I believe we should -- I should obey God rather than man, as the Bible says.
MS. VULLO: Okay. And so on the issue of abortion, do you view God's law as being different than man's law?
JUROR 12: No.
MS. VULLO: And I see that five of your children -- all five of your children are self-employed. Can you tell me what type of work they do?
JUROR 12: Well, my son is a contractor, carpenter and contractor, one son. And the other son is a fisherman.
MS. VULLO: Okay.
JUROR 12: And my daughter, she is a physical therapist. And my other daughter is a massage therapist. And my other daughter manages apartments.
MS. VULLO: Okay. Thank you. Is there -- if the judge were to -- if you were to hear an instruction by the judge, that you may not give a verdict for the defendants in this case if you find that they violated the law, would you be able to follow that instruction, if you believe that the law was an immoral law?
JUROR 12: I don't quite understand the question.
MS. VULLO: You indicated that you believed in following God's law. And my question, sir, was if the judge were to instruct you that these defendants cannot violate the law, because they believe in a different law, would you be able to follow the judge's instruction and give a verdict for the plaintiffs, if the defendants, in fact, follow -- in fact, violated man's law?
THE COURT: I think you should address your question more specifically to the issue in the case.
MS. VULLO: Okay, judge.
THE COURT: Because you may have some other law that we are not concerned with.
MS. VULLO: Okay. Sir, if the judge were to instruct you that the defendants in this case are not permitted to threaten the plaintiffs, because they perform abortions, would you be able to follow that instruction, even though you believe that the defendants are following 8 God's law?
JUROR 12: Well, I believe I could follow the 10 judge's rule, yes.
MS. VULLO: Even if that conflicted with what you believed was God's law?
JUROR 12: Well, if I -- if I could prove it with the Bible that it was.
MS. VULLO: If you could not prove it with the Bible, would you be able to follow the judge's instruction?
JUROR 12: Yes.
MS. VULLO: Thank you.
Juror number 14, sir.
JUROR 14: Hi.
MS. VULLO: Hi, there. I think you said in your questionnaire, something to the effect that you don't like doctors much. Can you explain that for us, please?
JUROR 14: Well, I work in a medical environment, and -
MS. VULLO: Okay.
JUROR 14: -- at Oregon Health Sciences University, so I have an opportunity to see a lot of doctors.
MS. VULLO: Okay. . . . .

MR. BRENAN: Do any of you have knowledge as to how abortions are done? THE COURT: That's not relevant to the issue in this case. We have ruled that several times, counsel. Disregard the question. . . . .
MS. VULLO: I have a cause challenge. Do you wants to hear that now?
MS. VULLO: To juror number 12, who answered that he believes in God's law and not man's law.
MS. VULLO: And I think that was his candid answer.
THE COURT: Yes. He seemed to be quite torn with that, and his answer didn't vary. Your challenge will be allowed. Call another juror. Excuse 12. . . . .

THE COURT: Do you have any further questions of this juror?
MS. VULLO: Yes, your Honor.
Good morning.
JUROR 24: Good morning.
MS. VULLO: In answering the question about your position on abortion, you checked off two boxes. One, you said abortion should be permitted only in cases where the pregnancy is the result of incest or rape, and then you said that decisions regarding abortion should be based on how early it occurs in the pregnancy. Can you explain that answer a little more detail?
JUROR 24: I believe that it should be up to the person.
MS. VULLO: And are there any circumstances that you believe that someone has the right to threaten someone else because they make a decision on abortion?
JUROR 24: I don't feel that's right.
MS. VULLO: Okay. And you also answered -- The question was, if I believed a law was immoral, I would not obey it. And you said, strongly agree. Can you explain what you meant by that?
JUROR 24: I might not have understood the question right.
MS. VULLO: Okay. Do you believe that someone who disagrees with the laws of this country has a right to violate those laws?
JUROR 24: No.
MS. VULLO: Even if they believe that the law is immoral, do they have the right to violate the law?
JUROR 24: No.
MS. VULLO: You hesitated there. Why did you hesitate?
JUROR 24: I was thinking about what you were saying.
MS. VULLO: Okay. Do you believe that the laws that legalize abortion are immoral laws?
JUROR 24: What exactly is immoral?
MS. VULLO: Well, do you believe -- Do you believe that any laws in this country are immoral, in your own view of morality?
JUROR 24: No.
MS. VULLO: Do you believe that the laws legalizing abortion, in your view of morality, are immoral?
JUROR 24: (Shakes head).
THE COURT: All right. Thank you. We did get a kick out of your answer, at what point do you believe a fetus is considered a baby? And your answer is, I believe when the doctor tells you you are having a baby. . . . . .
THE COURT: Please be seated. I will introduce my staff to you jurors. This is Renee Melancon. She is one of my law clerks. She's a recent graduate of the law school in Tucson, Arizona, at the University of Arizona, has all the usual Phi Beta Cappas, and Order of the Coits, and her PhD degree, and all that, besides being -- she's already a doctor. Doctor Doctor we call her. Renee is here to be of assistance. . . . .


THE COURT: On that score, this is going to be -- you are going to be involved in this for 76 hours. I think this is the first timed trial we have ever had in Oregon, but we are doing that with complex litigation in order to contain it so you aren't here for weeks and weeks on end. We have preadmitted -- I worked for days and hours and hours with counsel, getting this case ready for you.
There will be no side bar conferences. This won't -- That awful monstrosity you saw on TV, that OJ trial, it's going to be nothing like that. There will be no side bar conferences. There is going to be none of this personality bickering among the lawyers in your presence. There is not going to be any, period. . . .

Now, what is evidence? The evidence, of course, are the witnesses that will be called. And after the witnesses, you have got multiple exhibits that have already been prescreened and prereceived, and you will have your own copies of those exhibits. . . .


THE COURT: I will instruct you at the close of the evidence that a statement is a true threat -- Now, you have got to -- You will have this memorized, because you got to -- you have to know what a true threat is, because a true threat is unprotected speech. It is not covered by the First Amendment. And so if you don't have a good concept of what a true threat is, then you can't apply the facts to the law. So, we are going to try to drill that into your mind as we start, and then we will amplify it throughout the trial, and we will be giving it to you at the end of the trial. So, if -- It's been defined, if a reasonable person making the statement would foresee that the statement would be interpreted by the person to whom it is communicated as a serious expression of intent to inflict harm or assault.
Now, that's the legal definition of a true threat. I am going to run it by you one more time. It's that the statement would be interpreted by the person to whom it is communicated as a serious expression of intent to inflict harm or assault.
And, in deciding whether it's a true threat, you must consider the entire relevant, factual context or circumstances in which the statement is made, including the reaction of listeners. So, what we are talking about, here are these alleged threats, and then we will give you the universe, the context, in which the statements were made, in order for you to interpret, under the circumstances and atmosphere in which they are made, whether they constitute true threats.
Are you with me so far?
You know, I have taught law school for 30 years, and I can't help but think you are my students. So, don't -- This is just an introduction of the course, so to speak. Now, whether these three statements I listed to you are true threats, within that definition, will be decided by eight people, you. Nobody else in the world. Not me, and not an appellate court. So that's going to be -- this is a factual issue for you jurors to make that very, very important decision.
During the trial, you may hear evidence of actions and statements by some or all of the defendants. Plaintiff's claim in this case are not based on upon other actions and statements. They are based upon the three alleged threats that I mentioned for you. But, this evidence of other actions and statements may be admitted as part of the context or circumstances you can consider in evaluating the three statements as to whether they are true threats or as to whether they are just simply protected speech. I have said to you the defendants claim they have made no threats at all but, instead, were engaging in political protest consisting of lawful speech protected by the First Amendment of the U.S. constitution. And we all know that that is one of our fundamental rights, is that we have a right to go out and say what we want to say and be free and protest. And as long as we do it within the law, that's what the -- that is a fundamental First Amendment right of the constitution.
But, it has its limitations. And the limitations are as I have already given to you. Are we all with that now? Okay. So the First Amendment to the constitution protects freedom of speech, but that protection is not absolute. Some speech, under circumstances, may be the basis of legal liability, particularly the speech that amounts to true threats, as I just defined to you, and it's not protected by the First Amendment. . . . .


THE COURT: The burden of proof in a civil action is different than in a criminal case. You all know what the burden of proof in a criminal case is, don't you? What is it? Beyond a reasonable doubt.
You have learned that since grade school.
But you don't know what the burden of proof is in a civil case, do you?
Well, you will, until your dying day. When somebody comes up and says, juror, you were on a civil action, what is the purpose burden of proof in a civil case? You will say the burden is on the person bringing the action or asserting the affirmative defense, to prove that by a preponderance of the evidence. And your friend will say, preponderance of the evidence. That's a pompous word. Well, you know, we don't go home and say, well, what's preponderated today? It doesn't happen. So the common sense is what probably happened? You know, what probably happened? Not proof beyond a reasonable doubt. . . . .


. . . Much of this all started in March of 1993, 2 March 10, of 1993, to be specific. And on that day, a physician by the name of David Gunn, that's G-U-N-N, was gunned down in front of his offices, where he performed abortions, and he was killed. The person who murdered Dr. Gunn is someone by the name of Michael Griffin, and he is in jail in Florida, for that murder.
Now, we are not saying that the defendants had anything to do with actually killing Dr. Gunn. However, the evidence will show that the defendants' actions and their statements, in connection with Dr. Gunn's murder, are a very integral part of the evidence in this case.
Now, prior to the murder of Dr. Gunn, wanted posters were issued throughout Florida and Alabama, near where he worked, and one of them is standing up to the left, right there. And you will see the exhibit, that exhibit, throughout the trial. That poster of Dr. David Gunn was circulated prior to his murder on March 10 of 1993, with his photograph, with personal information. It threatened his life, and he later was murdered.
Now, that's not all. Almost immediately after the murder of Dr. Gunn, done in cold blood in front of his offices, the defendants before you today applauded the act. They labeled it justifiable homicide, and they even set up a fund for the killer. . . .
First, Donald Treshman, one of the defendants, from Maryland, who is a regional director of ACLA. He sent out a press release immediately, and he solicited donations for Griffin's defense. And you can see that press release on your monitors in front of you, which is Exhibit 40. Immediately released, Donald Treshman, whose organization was Rescue America, at the time -- and on the bottom, you can see there that he solicits funds for Michael Griffin's family. And the evidence will show that the address in Milton, Florida, where those funds were to be sent, was being sent to a man by the name of John Burt, who participated in the making of these wanted posters.
Now, even after this, Michael Griffin, the killer of Dr. Gunn, was even further applauded for his acts by the defendants in this case. Life Advocate Magazine, from here in Portland, included on their -- as their cover story, Michael Griffin and his murder of Dr. Gunn.
Michael Bray even commented to another defendant, Joseph Foreman, right after the murder, hallelujah. And, just days after Dr. Gunn was murdered, defendant Dreste, who is in this courtroom, held a sign of another doctor he was targeting, asking, are you feeling under the Gunn? And if you look on your monitors, you will see a videotape of this sign. Dr. Shaw, are you feeling under the Gunn, G-U-N-N, the doctor that was murdered just three days before.
Now, prior to the trial of the killer of Dr. Gunn, a trial that several of the defendants traveled to attend, someone by the name of Paul Hill, a man who would later murder another physician, and who is sitting on death row today, circulated a petition endorsing Michael Griffen's murderous act. Several of the defendants in this case signed Paul Hill's petition. I am going to show it you to you over here. You will see the actual exhibits at trial, but there on the left side, those are two copies of it. And this is the quote. We, the undersigned, declare the justice of taking all Godly action necessary to defend innocence human life, including the use of force. We proclaim that whatever force is legitimate to defend the life of a born child is legitimate to defend the life of an unborn child. Signed by defendants Michael Bray, Andrew Burnett, David Crane, Michael Dodds, Joseph Foreman, Roy McMillan, and Cathy Ramey. And this was sometime in late 1993, utilized again in March of 1994, when Michael Griffin was on trial. And the defendants attended that and circulated their petition.
Now, during this same time period, in August, September, of 1993, there was another doctor who was murdered. And his name is George Patterson. And he was murdered in Mobile, Alabama. Now, Dr. Patterson owned the clinic where Dr. Gunn was murdered several months before. And the evidence will show that someone was arrested for this murder and was acquitted of the crime. And, therefore, Dr. Patterson's murderer might still be at large.
Now, defendants will argue that Dr. Patterson's murder was not part of any anti-abortion group, and we are not submitting to you evidence that [it] was part of any anti-abortion group. But, nonetheless, it did not detract at all from the defendant's applause of this murder. And they again applauded it in their magazines and called it justifiable.
Now, as with Dr. Gunn, you will hear evidence that a wanted poster of Dr. Patterson, likewise, had been circulated prior to his death. And it set forth the places and times where he performed abortions and mentioned that it was outside the now murdered Dr. Gunn's clinic, where he was murdered. And, as I said, Dr. Patterson, the evidence will show, was murdered after these posters.
Now, just two days before Dr. Patterson's murder, a woman by the name of Shelley Shannon, from here, Grants Pass, Oregon, traveled to Wichita, Kansas, to shoot, and with the intent to kill, another doctor by the name of Dr. George Tiller. And you will hear evidence about Dr. Tiller.
Now, Shannon, in the year prior to the shooting, had been traveling along the West Coast committing arson and butyric acid attacks at several West Coast clinics. And she was captured for the attempted murder of Dr. Tiller and then pled guilty to the -- those arson and butyric acid attacks.
Now, Shelley Shannon had been in Wichita, Kansas, before she shot Dr. Tiller, and she was there with several of the defendants in this case. And you will hear evidence of that, and you will see photographs of them being there together in front of Dr. Tiller's clinic.
As had been done with respect to the prior murderers, the defendants immediately delivered press releases. They applauded Shelley Shannon's action, Donald Treshman, again, with his press release, which is on your monitors, entitled Another Abortionist Shooting, Not Unexpected. And then Treshman's quote is, we are sure to see more of these incidents. And then Treshman is -- states that he blamed it on a distraught mother or grandmother who may have lost a child in the abortion Holocaust. And at the end of this press release, Treshman boasts about how he was recently barred from entering the United Kingdom because of his anti-abortion activities.
Now, the defendants, again, Life Advocate, made cover stories of Shelley Shannon, both when she was arrested and after her trial. And, in fact, the evidence will show Shelley Shannon had in her possession, when she killed Dr. Tiller, several copies of Life Advocate Magazine, and she has testified that she had them with her, so that she can identify Dr. Tiller, and she can locate -- find out where he was and where he worked.
Now, rather than distancing themselves from these murderers in the name of life, defendants instead cheered them on. . . . .
The defendants chose to make their targeting of plaintiffs as public as they could, and to make sure that the plaintiffs heard it. So they did so at a press conference, on January 22, 1995, the day of the anniversary of Roe v. Wade, the Supreme Court decision that made abortion legal in this country in 1973. And at that press conference, they demonstrated, in large blowup form, their Deadly Dozen List, which is the first of the three categories of threats we allege in this case.

. . . And defendants continued to distribute other Wanted-style Posters.
At their event in St. Louis in August, 1995, they made further threats with their terrorist poster campaign. . . .
Four months later, in January of 1996, they issued more threats. This is a year after their Deadly Dozen list, and, again, in the Washington, D.C. area, on the anniversary of Roe v. Wade. And at this event, they unleashed their so-called Nuremberg Files, the third category of threats we allege in this case. And this is simply another form of wanted posters. At their event, they had a box containing files of physicians with photographs and other personal identifying information of physicians. And at the event, which is on the monitor, is a photograph that's David Crane at the podium announcing the ACLA Nuremberg Files, with one of the files in the background of one of the physicians, next to which it appears to be the Deadly Dozen poster, again.
And on that same evening that they unveiled these Nuremberg Files, in January '96, several of the defendants attended a White Rose Banquet, hosted by defendant Michael Bray, at which, as I mentioned earlier, each year they honor those in jail for committing violent crimes against reproductive health clinics. . . .
But, the evidence will show that when Michael Griffin murdered Dr. Gunn, defendant Treshman helped set up a defense fund for his murder. He put it in his press release, as I showed you earlier. Life Advocate urged contributions to that fund. And when Shelley Shannon shot Dr. Tiller, defendant Michael Dodds set up a defense fund for her. Life Advocate, too, published an ad for that defense fund, soliciting contributions. And when Paul Hill murdered Dr. Britton, the defendants provided financial support for his defense, as well.

Smoke and mirrors
From the record
Coorespondence from trhe courtroom