Judge: Militia members can leave jail until trial

5/3/2010

DETROIT — A judge ordered on Monday that nine jailed members of a Michigan militia be released, saying there's no risk to the public if they go home while awaiting trial on charges of trying to plot war against the government.

U.S. District Judge Victoria Roberts overturned the April 2 decision of a federal magistrate judge and questioned the strength of the government's case. She said all nine can be released with electronic monitoring devices and other strict conditions.

They're being held in county jails in southeastern Michigan and won't actually go free until Tuesday, after they return to court to be processed, the U.S. Marshals Service said.

The government says the members of a southern Michigan militia called Hutaree are radicals who planned to kill police officers and more. They were charged in March with conspiracy to commit sedition and attempted use of weapons of mass destruction.

Defense lawyers, however, say it's just a case of irrational, hateful speech.

Prosecutors “need not wait until people are killed before it arrests conspirators,” the judge said. “But the defendants are also correct: Their right to engage in hate-filled, venomous speech is a right that deserves First Amendment protection.”

Roberts said prosecutors failed to show that jail was the only way to protect the public and ensure that the nine return for court hearings. She had heard nearly 10 hours of testimony and argument over two days last week as militia members appealed the earlier detention order.

“Discussions about killing local law enforcement officers — and even discussions about killing members of the judicial branch of government — do not translate to conspiring to overthrow, or levy way against, the United States government,” the judge said Monday.

U.S. Attorney Barbara McQuade said an appeal was being considered.

Last week, Roberts had ordered the government to present an investigator who is familiar with the case, but FBI agent Leslie Larsen didn't reveal much from the witness stand.

Larsen, the lead agent, said weapons seized last month were still being examined. At other times, she couldn't answer questions because she hadn't lately reviewed investigative reports.

The judge said prosecutors failed to rebut the defendants' position that the only “live-fire training” amounted to shooting at dirt mounds on private property twice a year.

An undercover agent secretly recorded militia leader David Stone and others talking about killing police. But no specific names or dates were mentioned, and the conversations were sprinkled with laughs and a mix of subjects, such as strippers and drawing Hitler mustaches on photos of state troopers.

Stone's lawyer, William Swor, said they're grateful for Roberts' reversal of the detention order.

Stone will be in the custody of his 71-year-old father on Ray Stone's farm in Lenawee County, where they live in separate homes. He is barred from using a computer.