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Published: Saturday, 8/5/2006

Ferner gets house arrest, probation for vandalism

BY MARK REITER
BLADE STAFF WRITER

Lucas County Common Pleas Court Judge Charles Wittenberg said tagging the overpass on New Year's Day wasn't Ferner's constitutional right for freedom of expression, but instead was the destruction of government property.

"If what you wanted was to draw attention to yourself and give you wider exposure for your message by breaking the law, then you surely succeeded in that," the judge said.

"But, in the process, what you ultimately did is devalue your anti-war message down to the level of just basic high school graffiti."

Before announcing the sentence, Judge Wittenberg also read a letter that Ferner sent him Thursday.

A jury found the 55-year-old Navy veteran guilty on July 19 of vandalism and possession of criminal tools.

He faced up to one year in prison on each of the fifth-degree felony convictions.

Ferner also was facing up to $7,500 in fines for the crimes. However, Judge Wittenberg didn't impose a fine. In the letter, Ferner said he would refuse to pay any fine because the anti-war slogan was "upholding international law."

Judge Wittenberg placed Ferner on community control, formerly known as probation, for 18 months and ordered him to perform 100 hours of unspecified community service.

Sylvania Township police arrested Ferner and his brother, John Ferner of Columbus, on Central Avenue near the I-475/U.S. 23 overpass, minutes after the overpass was spray-painted on Jan. 1.

Ferner also had tagged the Dussel Drive/Salisbury Road overpass over the same highway in Maumee with "Bye Bush'' and "Hi Robb," a greeting that he testified was intended for his nephew.

A plea agreement for the Maumee vandalism resulted in the Ferners receiving suspended jail sentences, fines, probation, and community service. They each were convicted in Maumee Municipal Court on two counts of criminal damaging.

John Ferner was convicted in Sylvania Municipal Court of misdemeanor criminal damaging for his role in the incident involving the Central Avenue bridge.

In his letter, Mike Ferner told the judge that the motivation for his actions went beyond opposing the war, and his intent was to "add my voice to the thousands of others trying to awaken America's conscience and bring this war to an end."

"I believe that as a citizen of this nation, I am complicit in the crimes of this government I must speak out against this monstrous war in every nonviolent way possible," he wrote.

"I also believe that every citizen of this country must look into their heart and decide if they, too, are complicit in their government's war making."

Ferner did not make a statement in court.

Judge Wittenberg referred to a letter that Martin Luther King, Jr., wrote from jail after he was arrested in Birmingham, Ala. The letter reflected the civil rights leader's efforts to challenge segregation law.

"However, Mr. Ferner, you are not challenging an unjust law or questioning the application of the law as Dr. King did. You were never denied your First Amendment right of peaceful protest. You willingly violated a law," the judge said.

In an interview after his sentencing, Ferner said he wasn't disappointed that Judge Wittenberg chose not to send him to prison.

"I thought the sentence was fair and, although I don't agree with everything that he said, Judge Wittenberg put a lot of thought into the sentence," Ferner said.

The felony convictions will not affect Ferner's ability to vote in upcoming elections. Under state law, a convicted felon can exercise the right to vote as long as he or she is not imprisoned.

Ferner said he had hoped Judge Wittenberg would have used the hearing to speak out against U.S. military action in the Middle East.

"I was hoping that he would see this as an opportunity to make a strong statement against the war, but he didn't," Ferner said.

For the next two months, a device attached to the phone in Ferner's home, 2975 113th St., will monitor an electronic bracelet worn around his ankle.

He was charged $40 for installation of the device. The court also will charge him $60 a week for the service.

The device communicates through the phone line to a company contracted by the county for the monitoring service that detects whether he is in the residence.

Bruce Sorg, a county assistant prosecutor, didn't recommend a sentence, but instead told Judge Wittenberg that laws must be enforced equally, without regard to political affiliation.

"Mr. Ferner chose willingly and knowingly to break the law. He has been part of the political system. He knew full well and has partaken in other forms of protest which were legal without damaging other people's property," Mr. Sorg said.

Before imposing the sentence, Judge Wittenberg said he recently learned Ferner was arrested in late June while participating in a demonstration at a Veterans Administration medical facility in Chicago - a violation of his recognizance bond.

Judge Wittenberg modified Ferner's bond in March after he was arrested on charges of disrupting a congressional hearing in the U.S. Capitol Building by reading the names of soldiers and Iraqis killed in the war.

At the request of the prosecution, Judge Wittenberg said at the time that Ferner could not leave the county without prior approval from the court.

"I do not treat lightly your disregard for the condition of your bond during the course of the proceedings," Judge Wittenberg said.

Ferner also was ordered to reimburse his brother for half of the $3,361 that his brother was ordered in Sylvania Municipal Court to pay as restitution for the repair to the bridge.

"I find that it would be inappropriate to now order restitution by you to the [Ohio] Department of Transportation since it should not receive a windfall," Judge Wittenberg said.

However, Judge Wittenberg noted that ODOT has only painted over the graffiti, and didn't sandblast the bridge.

"I am troubled by the fact that the department of transportation has done nothing else. Yet they are claiming over $3,300 in restitution," the judge said.

Ferner was elected to Toledo City Council in 1989 as an independent. He challenged Carty Finkbeiner in 1993 in the race to become the city's first strong mayor.

He has been an active critic of U.S. military action in Iraq, and visited the country in 2003 and 2004.

A book about Ferner's experiences during the second trip - Inside the Red Zone: A Veteran For Peace Reports from Iraq - is scheduled to be released next month.

Contact Mark Reiter at:

markreiter@theblade.com

or 419-213-2134.



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