May 25, 2007
After completing two months house arrest, paying a few thousand dollars in fines and restitution, getting permission whenever I wanted to leave the state, and serving 1/2 of my probation period “without incident,” I’m back on the streets.
Last week I received a “Restoration of Rights” memo from Judge Jennings of the Lucas County Common Pleas Court, stating that the court had been informed by the Adult Probation Department that I completed my term of “community control.”
The memo went on to say that “…the rights of citizenship to serve as a juror and hold an office of honor, trust or profit, are hereby restored” and notifying me that my felony conviction “may preclude future possession of a firearm.” Apparently, my right to bear a can of spraypaint has been fully restored.
The best part about being a fully rehabilitated felon is that I can once again get arrested for civil disobedience actions without having a year’s jail term hanging over my head for painting a bridge.
Onward!!
July 20 2006
Friends:
Below is an article that describes my day in court yesterday, plus an unusual editorial in today’s paper by Toledo Blade editor and vice president, Tom Walton.
If this story touches your heart, write me if you must, but better yet, do something for peace today that you never thought you could do. You will have my undying thanks and the thanks of those people who desperately need your committment.
Be well. Raise some hell.
Mike
Ferner is guilty of vandalism on Sylvania Township bridge
By MARK REITER
BLADE STAFF WRITER
Thursday, July 20, 2006
Peace activist and former Toledo mayoral candidate Mike Ferner was convicted yesterday in Lucas County Common Pleas Court of defacing a state highway bridge with anti-war graffiti.
A jury took less than 20 minutes to find Ferner guilty of felony vandalism and possession of criminal tools for spray painting “Troops Out Now!” on the Central Avenue overpass on I-475/U.S. 23 in Sylvania Township on New Year’s Day.
Judge Charles Wittenberg will sentence Ferner, 55, of 2975 113th St., on Aug. 4.
A Toledo councilman from 1989 to 1993 and unsuccessful mayoral candidate in 1993, he is looking at possible one-year prison sentences for each offense and fines up to $7,500.
Mike Ferner and his brother, John, were arrested after anti-war slogans were spray-painted on two area bridge overpasses.
Ferner had the opportunity to resolve the case months ago by pleading to a misdemeanor charge in Sylvania Municipal Court. He said last night that he didn’t regret going to trial and was willing to accept any punishment that Judge Wittenberg would impose.
“I saw this trial as a way to once again bring up to the public, in a nonviolent way, the atrocities that are going on in Iraq. I thought this was another opportunity to make the case against the war in another public forum. I am glad that I took that opportunity,” he said.
The trial began yesterday after a jury selection process on Tuesday that included Judge Wittenberg, prosecutors, and the defendant’s attorney quizzing potential jurors about their feelings on the U.S. war in Iraq.
Ferner, who is free on a recognizance bond, has been opposed to the war and visited the Middle Eastern country on peace tours, including in 2003, shortly before the war began.
Sylvania Township police arrested the defendant and his brother, John Ferner, a Columbus firefighter, within 45 minutes after one of them paid $10.24 for a can of fluorescent orange spray paint at the Home Depot on Airport Highway.
The paint was used to vandalize the south side of the Central Avenue bridge and the Dussel Drive/Salisbury Road overpass over the same highway in Maumee with anti-war slogans.
Police found the can when they searched the Ferners’ pickup truck just east of the Central Avenue bridge. The same orange paint was found on Mike Ferner’s coat and shirt and inside the truck.
The men later entered guilty pleas and were sentenced on misdemeanor convictions for defacing the bridge in Maumee. John Ferner was convicted in Sylvania Municipal Court of misdemeanor criminal damaging for the incident involving the Central Avenue bridge.
The 12 jurors and one alternate juror heard the testimony of the two Sylvania Township police officers who arrested the Ferners near the bridge and Ohio Highway Patrol Trooper Doug Elliott, who investigated the vandalism to both bridges.
Mike Ferner took the witness stand in his own defense, and freely admitted to his attorney, Terry Lodge, that he committed the crimes of which he was accused. He was the only person called to testify by Mr. Lodge.
Ferner told the jurors that his actions were motivated, in part, by his military experience during the Vietnam War while assigned to a naval hospital near Chicago and while serving on an aircraft carrier on the West Coast.
“From my time in the Navy, I have these images that have stayed in my head. They are images of rows upon rows of hospital beds with veterans in them without arms and legs,” he said.
Mike Ferner served in the Navy from 1969 to 1973 when he was honorably discharged as a conscientious objector.
He told the court that he was opposed to the Iraq war and that his demonstrations against the U.S. military action ranged from writing letters to newspapers to participating in anti-war protests to being arrested an at army recruiting center in Toledo.
He said he was aware of the inconvenience the vandalism caused the community, but “this is one more way that a lone citizen can do everything possible in a nonviolent fashion to get people to stop and think.”
Bruce Sorg, an assistant county prosecutor who helped try the case, said the jurors appropriately and correctly applied the law to the facts of the case and reached the correct decision.
“The jury saw the evidence for what it was. [Ferner] wanted to use this for his own political agenda, but the jury didn’t buy it,” Mr. Sorg said.
Mike Ferner, an independent, challenged Carty Finkbeiner in 1993 to become Toledo’s first strong mayor. He lost by 702 votes out of some 92,000 cast.
In March, he was arrested on charges of disrupting a congressional hearing in the U.S. Capitol Building for vocally protesting additional funding for the wars in Iraq and Afghanistan. He was arrested by U.S. Capitol Police and charged with disruption of Congress, a misdemeanor. Authorities said several people were involved, and Ferner was one of two men arrested.
He was seated in a public gallery during a hearing by the full House Appropriations Committee, where members debated a $91 billion measure funding hurricane relief and the war against terrorists.
He stood up and voiced his opposition to the war during a “mark-up” period, when Congressmen speak but do not receive testimony.
On June 30, he was arrested at the Veterans Administration Medical Center building in Chicago for disorderly conduct.
He said he was protesting outside the building with the group “Veterans for Peace” when he went inside to buy coffee. A security officer approached him, pointed to his Veterans for Peace shirt, and told him he couldn’t protest in the building. He said he was arrested after he refused to leave.
He said an attorney with the Chicago chapter of the American Civil Liberties Union has offered to represent him on the charge, which carries a $275 fine.
Contact Mark Reiter at: markreiter@theblade.com or 419-213-2134.
Ferner jury didn’t know it could acquit
By TOM WALTON Editor and Vice President of The Blade
Thursday, July 20, 2006
OF THIS there can be no doubt: Mike Ferner believes passionately that America’s war in Iraq is morally wrong. Disagree if you wish with his tactics for demonstrating his displeasure; defacing public property is not something we defend or recommend. But give the man his due: he feels as strongly about war - he hates it - as he did when he served as a Navy corpsman in Vietnam more than three decades ago.
He believes it enough to have engaged in a destructive act of vandalism that yesterday produced the predictable result: conviction on two low-level felony counts by a jury.
Whether it was a jury of his peers we do not know. We don’t know because the jury was not advised of an enduring principle in jurisprudence known as jury nullification.
The principle is as simple as it is important. It holds that a jury, when rendering a verdict, has the right to disregard the law in the interest of justice if it believes the law is unjust. It has been utilized as far back in our history as 1735 in the famous John Peter Zenger trial, which helped establish the concept of freedom of the press.
Much more recently, we can point to a pair of contemporary cases, each notorious in its own right. Many legal experts believe that the jury in the O.J. Simpson murder case a decade ago applied the principle and found Simpson not guilty, despite a heavy preponderance of evidence, because of other issues, including racism in the Los Angeles Police Department.
Perhaps a better example would be the first five trials of Jack Kevorkian. Though his involvement in assisted suicides was not in doubt, juries refused to convict him because he had merely helped others to take their own lives. Only when he became proactive and injected a critically ill individual - even videotaping the act for television - did a jury convict him of murder.
Kary Moss, a prominent constitutional lawyer in Michigan and executive director of the Michigan chapter of the American Civil Liberties Union, agrees that juries can refuse to apply a law they feel is unjust, though few get the chance. Ms. Moss believes the concept could have applicability in a graffiti case because some courts have found over the years that such expression, even on public buildings and infrastructure, is the only way to express political dissent.
The problem is that the courts, and judges, generally do not explain to juries their rights in this regard. In fact, respected Toledo attorney Richard Kerger says that judges don’t charge their juries on the point and that the legal principle is seldom recognized. “The jury’s ability to deviate from the law is rarely explained,” he points out.
It’s little wonder that the Ferner jury voted so swiftly to convict. The evidence was clear.
But would some jurors have voted differently had they known they had the right to acquit based on the strength of one man’s commitment to a worthy cause?
Would jurors have overlooked his defacement of public property given his nobility of purpose in courageously protesting a morally wrong and undeclared war?
Instead, Ferner is looking at jail time of up to one year on each of two counts and fines up to $7,500. The prospect of incarceration probably doesn’t bother him. He has shown a willingness to starve himself, sit in, and even travel to Iraq to show the depth of his commitment.
Is society better off because Ferner’s jury didn’t know it didn’t have to convict him? The clear answer is no. I wish the jury had been advised of its power and made a statement of its own.
