In the previous year, nearly twenty defendants in other Baltimore cases had begun adopting what lawyers in the federal courthouse came to call "the flesh-and-blood defense." The defense, such as it is, boils down to this: As officers of the court, all defense lawyers are really on the government's side, having sworn an oath to uphold a vast, century-old conspiracy to conceal the fact that most aspects of the federal government are illegitimate, including the courts, which have no constitutional authority to bring people to trial. The defendants also believed that a legal distinction could be drawn between their name as written on their indictment and their true identity as a "flesh and blood man."
Judge Davis and his law clerk pored over the case files, which led them to a series of strange Web sites. The flesh and blood defense, they discovered, came from a place far from Baltimore, from people as different from [black defendant] Willie Mitchell as people could possibly be. Its antecedents stretched back decades, involving religious zealots, gun nuts, tax protestors, and violent separatists driven by theories that had fueled delusions of Aryan supremacy and race war in gun-loaded compounds in the wilds of Montana and Idaho.
How were such ideas transmitted from the radical right to the black underclass? The Monthly's writer, Kevin Carey, points to the prison system:
Some collected the documents [the Montana-based separatists] the Freemen filed during their trial and began offering them for sale via advertisements in "America's Bulletin," a newsletter espousing Posse-style anti-government theories that is widely distributed throughout the prison system by white supremacists.
In October 2004, a prisoner named Michael Burpee arrived at the Maryland Correctional Adjustment Center in downtown Baltimore. Burpee had recently been convicted in Florida of trafficking PCP to Maryland. Hoping for leniency, he pled guilty, only to receive a twenty seven-year prison sentence dictated by harsh federal sentencing guidelines. Desperate for a way out, he began listening to someone--presumably a fellow prisoner--who explained how the charges were all part of a secret government conspiracy against him. Then Burpee was brought up on new federal drug charges in Maryland, and shipped north. He carried with him a pile of documents that were remarkably similar to those that had been filed by the Montana Freemen....
Like the Midwestern farmers before them, the Baltimore inmates were susceptible to the notion that the federal government was engaged in a massive, historic plot to deprive them of life, liberty, and property. Such suspicions are prevalent in certain pockets of the black community--that year, a study from the Rand Corporation found that over 25 percent of African Americans surveyed believed the AIDS virus was developed by the government, and 12 percent thought it was released into the population by the CIA. And black separatist groups like the Nation of Islam--also fond of conspiracy theories--have long cultivated members through the prison system; some of these groups have explicitly adopted the language of constitutional fundamentalists. Given these developments, Levitas told me, "I'm surprised this didn't happen sooner."
That's a fascinating conveyer belt. I'm not sure it was the only one. This is not the first time conspiracy theories identified with far-right groups, including white supremacists, have found their way into black America. I've heard similar ideas, for example, from some offshoots of the Moorish Science Temple. And while that was recent enough to have possibly been influenced by Burpee, it isn't my only enounter of that kind.
In the late '90s, when I was writing a lot about pirate radio, I met several black radicals who defended their right to operate unlicensed stations using "sovereign citizen" arguments that I had seen, in almost identical form, in the right-wing fringes of the libertarian movement. Still earlier in the '90s, I stumbled on the curious cultural zone where black militants intersected with the militia milieu, which I then described in an article for Chronicles. (Unfortunately, the only copy of that story that I can find online is a garbled version someone posted to a UFO list, with all the paragraph breaks missing, the last line removed, and who knows how many other screwups in the transcription.) I've seen evidence suggesting that similar ideas were traveling from white populists to black populists -- or, if you prefer, being adapted and reconfigured by black populists -- even earlier.
The really interesting thing about the Monthly story is that when Mitchell tried to use those ludicrous homebrewed legal theories, they may have...worked. Sort of.
None of these arguments had a prayer of overturning the charges. But they had an impact nonetheless. They made a long, complex trial longer and more complex still. Seeking the death penalty is rightfully arduous--it requires legal justifications for the penalty itself, enhanced scrutiny over jury selection, an additional penalty phase after a conviction, and so on. Conspiracy charges create further legal burdens. And the way Mitchell et al chose to deal with their attorneys--not dismissing them outright, but asking them to sign a peculiar "contract" that would essentially prohibit them from mounting a defense--created more problems. If the defendants weren't dealt with carefully, they might be able to appeal by claiming that they had been inadequately represented....
By mid-2007, the federal prosecutors were starting to run low on a vital resource: time. As years go by, memories fade, police officers retire or transfer, informants change their mind, and juries wonder why, if the case is so straightforward, it took so long to make. On September 6, 2007, prosecutors withdrew the death penalty for all four defendants.