The closing argument below was delivered by Martin Cannon, Thomas More Society Senior Counsel, on behalf of Lauren Handy, in United States of America v. Handy, et al. on August 24, 2023.

MARTIN CANNON:

Good morning, ladies and gentlemen, Court, opposing counsel. Get my notes in order here. These will work.

On behalf of Ms. Handy—and I'm sure everybody—I want to express very sincerely how much we appreciate your time and attention in a lengthy and sometimes, I'm sure, frustrating trial. Be assured that both sides and the Court worked very hard to streamline the process.

The bumps in the road, perhaps, are an unavoidable symptom of the divergent ways in which people of good faith in a very polarized society view this fundamental issue, but that's where your challenge begins.

Now, before I get to my own comments, I'd like to go through kind of a little shopping list of things I'd like to address from the government's closing statements. And I want you to pay attention to how often you don't hear accusations against Ms. Handy. Mr. Crabb indicated that Ms. Handy organized and planned this event. He never said she blocked. He said Jonathan Darnel sent a post talking about how breaking the law is sexy. But it's sexy to Jonathan. The government never showed you Ms. Handy's response. We don't know what, if any, response there was.

Mr. Crabb talked about how many people were thinking about risking arrest. They hammer and hammer and hammer on risking arrest because, of course, risking arrest must mean a willingness to violate FACE. But if you look at the FACE statute and all of its elements and you consider other things that you know just because you're people in this society and if you listen to the testimony about what risking arrest really was, risking arrest was about not wanting to leave. Not wanting to leave a clinic or a hallway, even outside that clinic is not the same as blocking a person's access into the clinic; nothing about refusing to leave. When somebody says, this is my building, get out of it means that you're violating FACE, that's huge.

Again, he talked to you about Heather Idoni, suggesting she's trying to get people to block. That's not Lauren talking. He talked about the fake appointment. She made a fake appointment. She must be planning to violate FACE. But a fake appointment gets you in the door. It doesn't mean you're going to block anything.

The government talks about Jonathan Darnel's post. Now, as I sit here, I'm not sure I can remember exactly which one it was, but he's saying stuff. It's Jonathan talking, not Lauren.

Mr. Crabb talked to you about the fact that somebody might have been injured. He didn't say by whom. It wasn't Lauren.

He talked to you about the intimidation idea, which is part of FACE. And he gave you some examples of statements and conduct, but those were statements and conduct of others, not Lauren.

He did point out her own post that says there's a lock-and-block rescue happening now. Now, that's important when you come to the conspiracy thing because she's saying this after everything has kind of started to happen. Now, for the first time perhaps, she knows what people are doing. She couldn't have said it before.

And, very importantly, even though it's her own post and she's telling you what people are doing in there—some, not all—nothing about the post to indicate that she is doing it.

They point out to you that Ms. Handy spoke to Officer Whyte and said there's a rescue going on; don't allow people in. She's asking the officer not to allow people in. Obviously, she is assisting or hoping for some assistance in saving babies from born-alive abortions.

Now, when he got— when Mr. Crabb got to the specific defendant, he talked about Ms. Handy's texts, her conversation with Officer Whyte, her post. And we've already addressed those. I'm not going to talk about them again.

But the government also said she's done it before; look at her prior event; it proves her intent on this case. Apart from the logical fallacy there, what I did some prior time tells you everything you need to know about what I'm intending when I do something today is very, very attenuated. Very importantly, look at the event that they point to. You saw it on video. She's not blocking anything.

There was practically no way to make a FACE violation out of that prior event. And if that's the case, how can it be proved that she intended to violate FACE this time?

Mr. Crabb says you should question her credibility because she, on the one hand, admitted blocking access and, on the other hand, said, personally, I wasn't. Now, some of you might be old enough to remember the old rock song. I always chuckle when I hear it. When somebody says "I shot the sheriff," probably entitled to believe— to be believed when he says, "but I did not shoot the deputy."

You saw Lauren on the stand and talking to the officer. She's entitled to some credibility when she says, "But I didn't do these other things."

They point out the fact that she did some kind of thing where she put a chair over by the door and then used a cord or something and tied something off to something on the other side. You don't know what that was about, but look at its effect.

The cords are, like, ground level. People are stepping back and forth over them like stepping over a curb. The chair involved is actually holding the door open. If it was an attempt to obstruct, it didn't happen. And you can't look at that and say this was an attempt to obstruct. What reasonable person would do something so ineffectual? Was it symbolic?

The door is open. The chair is off to the side of it, much like the police officer was off to the other side of the door at about the same location, just on the other side. Nobody says he's blocking anything. And the chair itself keeps the door from swinging shut.

Mr. Geraghty's credibility is important to Ms. Handy on one point, which I'll get to later. But the government attacked it, so I'd like to address something. The government attacks Mr. Geraghty for saying he went into the clinic because the one lady was on the ground, and he was checking on her or worried about her, something like that.

And then they point out that he must be lying about that because, actually, he stepped over her like, you know, there's nothing to be concerned with. This is an important observation to see the change that occurred in Mr. Geraghty. It's important to notice; he didn't know why she was on the ground because it hadn't been discussed with him.

He didn't know what she was doing. She's an elderly lady. Maybe something happened. When he figures out that she's there of her own free will, then he leaves her alone. He's not lying to you. He's speaking truthfully, and you can see the change that happened in his level of awareness. This goes to the conspiracy thing.

It's really evidence, among others, that the conspiracy thing is just too half-baked.

If somebody said—if somebody said, you know, those pro-lifers, they're true believers—they just want to save babies. They're very nice people, wouldn't hurt anybody—you can't convict them. I trust— I hope you would agree that you would say, wait a minute, we have laws. And what the law says, exactly what the law says, matters.

On the other hand, if somebody were to say to you, those pro-lifers are a pain. They show up where they're not wanted, they create a scene, they add to the anxiety of people that are already having some, and then they don't want to leave. Forget what the law exactly says—you get the basic idea—just convict them. I trust you would agree that's equally inappropriate.

So this process starts and ends with the law and what it actually says. Especially being in this city, I'm sure you understand the way laws get made. The FACE Act, before it was passed, was presumably stitched together with words. They were debated, maybe modified, debated some more, modified some more, debated until finally we had a statute that had been agreed upon by both halls of Congress, everybody in them or a sufficient majority, both halls of Congress at the same time and then passed—or signed, I should say, by the President.

Some people might have thought it was too broad; some might have thought it was not broad enough. But those arguments would have been had and voted upon, and this is what we have, the FACE Act as it's written. Like it or not, love FACE, hate FACE, doesn't matter. You must recognize that it's a product of a civil process that must be respected.

When you pull it out and look at it, you'll see, I think, a big picture, and I want you to step back and look at it. FACE prohibits a range of actions. They are defined. It leaves untouched the bulk of predictable, perhaps unpopular, even intrusive activism that can be engaged in by people on either side of this issue.

Can you see that all right? If you look at the instructions—you're going to have them—the FACE Act is broken down—essentially, what it requires the government to prove is broken down into three categories, and it has to be proven as to each defendant.

The first category, whoever by force, threat of force, or physical obstruction intentionally—that's the second category—intentionally injures, intimidates, or interferes with a person. Third category, because that person is seeking or providing reproductive health services.

Now, some of those terms are defined, and I've written those definitions. Of course, don't take my notes as gospel. You're going to have the instructions.

Physical obstruction is defined as rendering ingress and egress impassable or unreasonably difficult or hazardous. Intimidates means putting a person in reasonable fear of bodily harm. Interferes with means restrict a person's freedom of movement. And, of course, reproductive health services talk about the reproductive health system, the bodily system, and revolves around pregnancy and the termination of pregnancy.

So if you want to boil it down for yourselves, you can put the definitions in place of some of the words, and it helps you sort of streamline your own trip through the statutes. So what it comes down to is that whoever by force, threat of force, or rendering ingress or egress impassable or unreasonably difficult or hazardous, intentionally injures, intentionally intimidates, let's say, intentionally puts a person in reasonable fear of bodily harm, or intentionally restricts a person's freedom of movement because the person is seeking or providing services related to the termination of pregnancy.

Now, very importantly, the government must prove at least one thing from each of these categories. If the government proves something in number two and number three, but not number one, the case fails. If they prove something in one or two, but not three, the case fails. They have to prove something from each category.

So when you see that, it's very easy to imagine—and I'll leave it up to you to imagine—conduct like what we've seen ourselves or heard about through history that is the conduct of activists that doesn't come close to violating FACE.

Obviously, let's start with the sidewalk. We all know this. I think Mr. Crabb suggested it himself. A person can be out on the sidewalk handing out pamphlets, holding signs, maybe calling out to women offering assistance or information. And if they're not blocking or threatening or using force, nobody would say that's a violation of FACE.

Even inside a typical office building or a shopping mall, people going into the common area hallways, talking to people in the elevators, handing out pamphlets, nobody would suggest that's a violation of FACE.

Now, some people might not like it. And the owner of the building might say, hey, get out of here. You can't do that here; it's my building, get out. And if you don't, maybe you'll get arrested. If you have some principled reason for not walking out on your own two feet, make them drag you out, you chose arrest. It doesn't mean you violated FACE.

Even inside the clinic lobby itself, a person might go in, put down some pamphlets, maybe even lean down or sit down next to a lady and talk to her, maybe sit in the chair against a wall that isn't blocking anything and sing songs or pray; maybe not even want to leave. But a person sitting in a

chair up against a wall, is not blocking anything, singing a song is not violating FACE, even if they have to get dragged out.

So it's very possible that all the things I've suggested could be done without violating this law. The whole reason I've been talking about that is because of this big picture of the events in question that I think the government misses, and I want you to step back and see, and that is this. This case involves some conduct by some people that might be prohibited by FACE.

It involves a whole lot of conduct by more people that simply isn't. The government wants you to throw them all in the same bucket. Your duty is to look at them separately.

So let's look at the FACE statute. Category 1, force. You've heard how Ms. Handy feels about force and violence.

The only place it really looks to be an issue is when the group of people are coming through the doorway. But remember the evidence. Ms. Handy got in ahead of them. She's already in the lobby. She's not part of this group that's coming through the door. You can look at the video a hundred times, as focused on the question as you want to be. You will never see Ms. Handy pushing. You won't see her, really, even moving.

And when things got or looked a little messy, Lauren explained to you that, not only was she not pushing, she was saying, don't push. It's totally consistent with her views on passivity.

Category 1 continued, the next item, threat of force. Not even a question. Nobody suggests any threats were made here. The evidence doesn't support it. The government doesn't tell you the evidence supports it.

Next item, physical obstruction. Rendering ingress or egress impassable or unreasonably difficult or hazardous. Look at the videos. Ms. Handy never blocks anything. The government might say, well, but she was in the doorway. Well, she's around the doorway a few times in the video, of course. So is the police officer. Would the government tell you he's blocking?

Either of them could step aside, if necessary, but nothing in the videos indicates it would even have been necessary. Anybody could have walked through that door. Now, the government might say, but if somebody would have come along, Ms. Handy's in the way. Apart from the fact, the same thing would be true of the officer.

It's very important to understand that you can't block somebody who is not there. We don't block hypothetical people. You have to block an actual person. And if there's not a person there, there's no blockage. No video shows Lauren blocking anybody's in and out through that door.

Now, let's go to Category 2. Do I still have it up? I think I do. All right. A person by one of the things listed in Category 1 has to do at least one of the things listed in Category 2. Intentionally injure or attempt to injure.

The government, of course, will point to the lady with the injured ankle. First of all, an injury, or even the attempted injury, must be intentional. It's the predicate to every item in Category 2. Must

be intentional. Look at the video. There's kind of a fracas going on. Ms. Handy is not in it. She's kind of off to the side.

She was already in the room when that group came through the door. She's not pushing. She's saying, don't push. There is no way to make that injury something that was intended by Ms. Handy.

Next item in Category 2, intentionally intimidates. Now, we already heard about intimidation. It requires that you put a person in reasonable fear of bodily harm. So boiling down those two sentences—two things down into one sentence, the person must intentionally place a person in reasonable fear of bodily harm, kind of like the threatening in the first category.

Intimidation in this category just won't fly. The evidence doesn't support it. And there's no serious argument for it.

The next item in Category 2, intentionally interferes; interfere meaning restrict some person's freedom of movement. Look at the videos. They show Ms. Handy engaging in no interference of any kind with any person.

So we need to look at Category 3. And, remember, if the evidence fails in either of the first two categories—which I submit it does—you don't even get to Category 3. But Category 3 requires that, in order for you to convict, you have to find that a person did what he did because the other person was providing or obtaining reproductive health services, and those involve the person's reproductive health system and pregnancy or the termination of pregnancy.

There is— obviously, these people are not at that clinic because of Pap smears or STD tests or even pregnancy tests. It's all about abortion. But when it comes to this clinic, there's kind of a big wrinkle in the thing that you have to pay attention to because it goes to this third element of the case.

Ms. Handy had seen a video that hugely impacted her life. She quit school, sold her book collection, told her mom and dad she was going, and she shipped off to California to join a pro-life group.

There is no available argument that a living baby outside the womb at any stage of gestation is a pregnancy. This video convinced her that little boys and girls who are not pregnancies anymore—location matters—are being born alive and left to die. If that's going on—and, very importantly, it doesn't have to be going on. She just has to reasonably believe it. If she reasonably believes it and that's the reason she goes into a clinic—and, by the way, I don't know if I said it, if they're being born alive and left to die, that conduct in that clinic by that doctor is not protected by FACE.

If she's going in there to save babies from that, she's not violating FACE. And she can do all kinds of things that any of us can do to help a person who needs defense. The unborn child who winds up outside the womb has moved from a place of no protection to a place of legal protection, and Lauren is entitled to act upon that.

So the question is whether she really believed that. I started to mention it. We saw the impact it had on her. Quit school. What did she say? Four-day train ride or something out to California. Sold her collection. Goes to work for this outfit. Starts studying the incidents of live-birth abortions.

Yes, the video also affected her in entering the pro-life business, generally. And she's been doing things generally that aren't focused on this clinic or this doctor. But the fact is, it always haunted her. And she came all the way across the country back to this clinic twice. Plainly, there was something different and special about this clinic.

Did she do it only because of that belief? Did she go into this clinic partly because she just doesn't like abortion and partly because she's trying to save babies from live-birth abortions? The belief itself is, obviously, deep. I already talked about that. I'm not going to talk about it more. But was the belief the sole reason? And I think it has to be the sole reason.

Don't be confused by the idea that babies of any gestational age might be getting aborted in that clinic or the people might be there for other reasons. That doesn't matter.

First of all, the born-alive problem isn't a problem just associated with late-term abortions and not others. This is not the— this isn't about the legality of late-term abortions. It's not about the legality of abortions at all. It is about the fact that a baby born alive and left to die has not been aborted. He's just been killed or neglected to death. Once he's outside the womb, this is not an abortion case.

And that problem can arise at, perhaps, any gestational age. So don't be confused by the idea that it's hooked onto some gestational age. Doesn't matter. Don't be confused by the idea that other people might be coming into that clinic for other things. Doesn't matter. What matters is what Lauren is trying to stop and why she's trying to do it.

In Lauren's mind, any person who she can convince not to go into that clinic is a person whose baby is not going to be born alive and left to die.

And, remember, too, this event is not like any previous ones Lauren had ever been involved in. It's distinct from the others, just as Santangelo is distinct from the others. This is a big one; biggest one in 25 years. Going to get more and more people. Why are they putting on this big event at that clinic? For one single compelling reason.

He talked briefly about the conspiracy. Maybe I touched on it when I was addressing Mr. Crabb's comments. The government puts on all kinds of evidence about the texts and the posts and all this kind of communication that's going on between the people involved. But if you're planning a backyard barbecue or a high school camping trip, you're going to have all the same kind of communications. There's nothing nefarious about the fact that there's a lot of conversation going on.

The government subpoenas the witnesses—sorry—the records from Verizon or Google or whoever it is. They get a lot of stuff. Just think of yourselves. If they subpoenaed your records, they'd show all kinds of communications you had between yourselves and other people, all kinds of planning of God knows what. There's nothing hostile or nefarious about it.

In order to be guilty of conspiracy, you can't just plan an event. You have to have an agreement that involves breaking the law. How can we have a conspiracy to violate FACE when most of the parties to the so-called agreement aren't going to do it?

They're going to do conventional sit-in kind of stuff—just like Martin Luther King has a federal holiday for—that doesn't necessarily break FACE. How do you have a conspiracy to violate FACE when the supposed organizers don't even know what people are going to be doing? How do you have a conspiracy to violate FACE when everyone is told to just follow his conscience; when people are told to risk arrest or don't risk arrest? It's up to you. How do you have a conspiracy to violate FACE when the performance of the so-called agreement could result in everybody blocking or nobody blocking?

There was only one thing around which these people were unified, and that was nonviolence. They conspired to be peaceful.

The government made a big deal both during the testimony and in their argument just a few minutes ago about Mr. Geraghty pointing at things like this in the lobby and Lauren pointing at things in the lobby. They said, surely, there's direction going on; surely, these pointing events prove the conspiracy.

But they asked Mr. Geraghty what's he pointing to. And he answers without a bit of hesitation—and you might have found him to be a very credible witness. He answers without a bit of hesitation. "I was pointing to the businesses on either side and saying something about getting pamphlets to them."

The government knew better than to ask Mr. Geraghty what Lauren Handy was doing when she was pointing. You never heard it. You don't get to assume it.

Finally, your presence here is a reminder that we are a free people and that we govern ourselves. Those things are linked. Every branch of the government is represented in this courtroom. The executive branch, with the prosecutors; the judicial branch, obviously, right here; the legislative branch is represented in the various laws, like the FACE Act that we're here to talk about, and also the laws that govern how these proceedings are conducted and what rules you follow.

But those are branches. You are the trunk. Every one of those three branches gets its authority from you. The legislators are, obviously, elected by you. The executive, the President, is, obviously, elected by you. The judge is nominated by the executive you elect and confirmed by the legislators you elect.

But when you're done voting, you are not done with the crucial role that you play in our self-governance, because you walk out of the voting booth, down the steps, around the corner, down the street, and you come into this courtroom, and you see to the application of laws made in your name.

Nothing happens to Ms. Handy or any of these other defendants unless you feel it is just; every one of you; every single one of you. There's a reason there are 12 of you; not 6 or 10 or even 11.

So when you are deliberating, don't fall in just to go along. That is not part of your duty. In fact, it would be a violation of it. If you can't get to conviction when other people on the jury have, maybe all the other people on the jury have, it is not because you're just being stodgy and bullheaded. It is because the government hasn't met its burden. The burden is not most; the burden is all.

This case involves a fundamental issue that raises passions on both sides, but we have laws. We have the FACE Act, which has carefully chosen words that prescribe specific conduct and leaves much of what we see in this case unaffected.

We also have the presumption of innocence and the burden of proof; those last two being important to protect the weak from the powerful. That's not just important to Lauren Handy; it's important to all of us.

Hold those laws close, and we trust you to make the right decision. Thank you.

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