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National Security or First Amendment? Gyrocopter Case Proceeds

Hughes wants to argue a "necessity defense" for his gyrocopter flight. (Tom Williams/CQ Roll Call File Photo)

The airspace security concerns Congress has harped on since the April 15 gyrocopter stunt on the West Front continue to delay Douglas Hughes from a federal trial, but the Florida mailman has dreamed up his own defense strategy.  

Hughes presented his "necessity defense" to reporters Wednesday, after a status hearing in the federal courthouse mere blocks from the Capitol. "I flew here," the 61-year-old said, "because it's ... the only way I could come up with for the average person to have a pulpit to fight against billions of dollars of special interest money that dominates this city."  

It remains unclear if a Washington jury will hear Hughes' argument.  

During court proceedings, attorneys tried to plot a course for sharing certain sensitive "national security" related evidence from the Federal Aviation Administration and other law enforcement agencies involved in investigating and arresting the postal carrier-turned-political activist.  

Hughes rejected a plea deal that called for him to spend between 10 months and 16 months behind bars, and to plead guilty to one felony and one misdemeanor charge. A second, less formal offer of 10 months incarceration expired Wednesday. Meanwhile, both sides are negotiating the terms necessary to proceed to trial.  

"Here is the problem: Mr. Hughes wants to accept responsibility. He wants to do so very much, although the government offer is making it difficult for him to do so," Assistant Federal Public Defender Tony Miles told the judge.  

Prosecutor Tejpal Singh Chawla, who is representing the U.S. Attorney’s Office, acknowledged the government was in "uncharted territory" on parts of the six-charge indictment. In May, a grand jury charged Hughes with two felonies, related to flying the small aircraft without proper licensing and registration, and four misdemeanors, including the obscure charge of operating a vehicle falsely labeled as a postal carrier.  

"Congress did not anticipate a gyrocopter being used in this particular manner," Chawla said. Every charge filed against Hughes has been used, but "somewhat unusual" provisions are at play. The postal emblem charge has never been taken to trial, according to Chawla.  

Hughes' First Amendment-based judicial strategy requires additional action from the judge.  

In a motion filed July 16, Hughes asked for permission to hire free-speech lawyer Mark Goldstone, who has been on the front lines of high-profile First Amendment cases, including representing protesters with the Occupy movement. They have discussed the "necessity defense."  

"If your neighbor's house is on fire, technically it's against the law to break in, it's against the law to trespass. But if you did so to rescue their dog, OK, you would plead that, 'Yes, you're guilty to the charges, but you're innocent on the basis that it was a greater good that was necessary,'" Hughes explained.  

Hiring Goldstone would require money, offered to Hughes by an unidentified third party. He did not elaborate on that funding when asked by reporters. The judge plans to weigh the motion at a future court date.  

Prosecutors expressed no position on who should represent Hughes, stating "we defer to the Court on that issue," in court documents filed Tuesday. The government noted, however, that typically, by law, any money raised or collected by a person provided with a public defender is contributed to the attorney.  

No jail time is justified, Hughes has argued, for an act intended only to draw the attention to corruption in government. The gyrocopter delivery of 535 letters to members of Congress was his "pulpit" for getting the message out.  

"My argument is that the jury should be able to see expert testimony, OK, hear expert witnesses on the fact that we have a national emergency that my flight was intended to address," Hughes said, "and it's certainly no less of an emergency and no less dire than your neighbor's house being on fire."

His professed act of civil disobedience has spurned other protest activity.
When Hughes appeared in court on May 21, about a dozen supporters packed into the back benches of the courtroom, whispering that the mailman was “a great American hero.” Outside, activists protesters with Public Citizen and CodePink waived signs with messages such as, “DEMOCRACY IS NOT FOR SALE." One presented Hughes with a jumbo stamp that featured his face.
Connecticut-based author Joe Lane delivered Hughes' message to Congress, walking the halls of congressional office buildings this summer. (Hughes clutched a copy of Lane's thriller, "Aftershock" on Wednesday.) Similar protest activities are being planned around the nation, Hughes told reporters, in coordination with Public Citizen, local advocacy groups and even some fellow Postal Service employees.
"But I am convinced that the prosecution will be opposed to me making that kind of a defense and they will ask the judge to force the case into some very narrow guidelines that prohibit — prevent — the jury from seeing or hearing anything about why I flew," he said.
Asked by CQ Roll Call about his job status with the Postal Service, Hughes revealed he was notified on July 4 of his termination. He has received his last paycheck, and is in the process of applying for food stamps.
"I may be famous, but I'm not rich," said Hughes, who supports his wife and 12-year-old daughter. "But that was never my goal."

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