__PCU_//\_Free Assembly Project____
_//\_________________________________an Association of Volunteers__/

                  2 October '09

            Kellogg's 9/28 Hearing in Wyoming ~
               PCU_FAP letter goes to court too

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            On Monday morning 9/28 Dale Kellogg appeared before U.S. Magistrate Teresa M. McKee in Lander, Wyoming.  This was a Hearing of vague purpose, contrived by the judge only 10 days before, in lieu of the trial originally set for this date; upon receiving the Order by mail, he had notice of only five business days, inadequate under court rules.

            As the Kellogg hearing commenced that morning, a letter from PCU_/Free Assembly Project -- as a 'Friend of the Court' -- was faxed to the judge's office, asserting core public interests in this case.
Where prosecutions arise from 1st Amendent exercise, court proceedings must be subject to public scrutiny, to deter systematic abuses of civil rights and due process.

      After Kellogg rejected a bad plea deal in late August and his lawyer quit, the bizarre course of events and procedural devations put Kellogg in another squeeze-play to cave in.  The judge quickly granted the lawyer's withdrawal, did not appoint new counsel, yet upheld the trial date of 9/28, set in July -- so there was justifiable concern that would have to appear on that date without representation.  To protect himself and preserve his defense, he faxed and filed an 'Emergency Motion to Dismiss or for Mistrial' on 9/23... this was necessary to change the game, but no guarantee.

      That he was forced to make this appearance is telling in itself:  He also faxed a 'Motion for Continuance' on 9/23, but got no response from the court over the next 2 days... the secretary said the judge was "out of the office".  (This is odd too, because Federal judges are not supposed to be casually away and unavailable to emergency motions.)  Anyway, Dale heard nothing back by the end of Friday afternoon, so he wisely prepared for the trip.

      As it turned out, not much happened at the Monday Hearing:  The judge appointed new counsel for the defense, and set a new trial date... because that's all she could do --

Kellogg's 2 Motions caught the Court on due process errors prejudicial to the Defendant, called out the prosecution on the facts, and put 1st Amendment issues on the table, raising the stakes.  The effect was to 'freeze' the court, preempting any more bad moves:  HIs Motion to Dismiss could not be arbitrarily denied right away, because his evidence files had to be recovered from the former lawyer before it could be considered.  Moreover such action would incur upon the pre-trial discretion of the U.S. Attorney, and his reply was required before any ruling could take place.  The alternative Motion for Mistrial forced her to correct recent blunders and still hangs over the case.

      Obviously Dale's appearance was not needed for these mundane purposes, which should have been dealt with routinely weeks ago.  It's yet another screw-up by the Court:  The fact that he had to travel 400 miles each way and suck up 3 days of time & expense -- just for this -- chalks up as a further burden on this 1st-Amendment Defendant... duly noted.

            Overall though, Kellogg's tandem Motion strategy seemed to work and control the risks.  He likes the new attorney, who in turn walks into a strong defense position, with the case set up for a Win, or a sane and fair resolution soon.  The judge set a new trail date of November 9, 2009, but it's doubtful that this will stand:  It can be continued if needed, but more likely the case is set up for a full Dismissal soon, or darn close to it.  The U.S. Attorney has already come back with a new offer.

            As always in these cases, the ironic reality is that the more prepared the Defense is to go to trial, the less probable trial becomes.  Predators attack the weak, not the strong, and don't start fights they will lose... so it goes with prosecutors.

            Dale Kellogg has stood on principle admirably, and stuck out his defense.
            Hopefully he will not have to go back to Lander again.


                        _scottie addison__
                           Coordinator