Thread by @mollylroberts

Day 3 of the “no more than 2” day trial of Sandwich Guy. The prosecution is resting its case; the defense hasn’t decided yet. Dispute over jury instructions continues, a few morsels (sorry) to follow.

Firstly, Sandwich Guy does not “plan” to take the stand.

Next! Parties spent the morning haggling over definitions — of “assault,” five other verbs the government can prove, and “forcibly.” On assault, defense wants more to be required than just “touching, offensive to a person of reasonable sensibility.”

Also conflict over whether the defense could invoke the rule of completeness to admit *more* of the video of Sandwich Guy at police precinct — specifically, part where he explains he believed the cops at the corner were about to conduct an immigration raid on an LGBT club having a Latin Night.

Government did not want this admitted, called it “self-serving hearsay.” Judge ultimately denied motion. Defense can try to get the evidence in during its own case (and could do so by putting Sandwich Guy on the stand, but, again, counsel has signaled that isn’t likely).

The “forcibly” issue hangs on whether any action — in this case, yes, the throwing of the possibly, possibly not, exploding sandwich — must have carried a risk of inflicting bodily harm.

By the way, before the jury returns…If you value my and Lawfare’s non-profit legal news, analysis and assiduous sandwich-related live-tweeting, you can support our work here: givebutter.com/journalism/mol…

We’re still waiting for the judge to figure out the jury instructions. Definitions can take time! Thankfully he need not rule on the distinction among hoagie, sub and grinder.

The defense is making a Rule 29 motion — request for judgement of acquittal. Says at the very least the government hasn’t proved 3 of the 6 magic verbs.

Defense also says of the remaining verbs besides assault — impede and interfere — Sandwich Guy actually helped the officers do their duty, to the extent it was “high visibility” crime patrol and prevention. Indeed, they became *more* highly visible when officers arrested him in double digits.

Judge denies the Rule 29 motion. Says a reasonable juror could conclude defendant acted forcibly, and could conclude he performed any of the verbs.

Finally, Sandwich Guy speaks! Don’t get too excited — all he says is “yes, Your Honor,” several times as to his decision not to testify on his behalf. Defense won’t be making a case, will move for Rule 29 again after it rests.

The defense is emphatic about wanting to have the government close before lunch and the defense close after lunch. Looks like judge will have them both close after lunch. This way no one will have the unfair advantage of having just consumed a fortifying footlong.

Jury has its instructions. MUST find Sandwich Guy acted forcibly, which “can” be shown thru attempt/threat to inflict bodily harm. Assault is any attempt/threat to inflict “any physical injury, however small, including touching offensive to a person of reasonable sensibility.”

Off to lunch. Good news: Sources say the food in this courthouse is not offensive to a person of reasonable sensibility.

Closing arguments begin. The government says, “Everyone has a right to their personal beliefs…However, that does not give them the right to touch another person, to strike another person, even with a sandwich.”

The lawyer for the government doing the closing — Michael DiLorenzo — seemed to be having some sort of issue at the start, losing his train of thought/struggling to speak. Seems ok now. Going over the night’s events with the CCTV footage as an aid, emphasizing how the officers showed restraint.

Replaying the part of the bystander’s video in which the guy filming cries out, “No, no, no! You don’t gotta be Superman!”

We have reached the moment the footlong was flung. “He spikes it, throws it like a baseball.” It strikes Agent Lairmore in the chest — “he says he could feel it.” Government acknowledges prosecution is not alleging he needed medical treatment.

Going thru the elements of the crime. Looking at the 6 magic verbs now, and the one even more magic adverb: forcibly. “Here we have the defendant throwing — it’s a sandwich, but throwing it hard.”

Assault now. Injury, government says, isn’t the layman’s definition but the legal one. “Hit with a sandwich. Having a sandwich spiked on your chest. Is that offensive to a person of reasonable sensibilities? Certainly. We have an assault.”

Talks about Sandwich Guy impeding officers’ mission. Displays quote on a slide: “I did it. I threw a sandwich. I did it to draw them away from where they were. I succeeded.” Finishes by telling jury that the officers focused on doing their job. “Now we ask that you do the same thing.”

Re: Sandwich Guy’s statements about having thrown the sandwich, prosecution notes that he said it with “pride.”

Defense begins, “This case, ladies and gentlemen, is about a sandwich. A sandwich that according to Agent Lairmore somehow both exploded on his chest in a spray of mustard and onions but also landed intact on the ground still in its Subway wrapper.”

“A sandwich that Lairmore testified he somehow felt through his ballistic armor on his chest, armor that is specifically made strong enough so that it stops a bullet from piercing a soldier’s heart.”

Asks, “Would a man genuinely injured, genuinely offended by having a sandwich thrown at him proudly, happily, joyfully” keep a plush sandwich on his shelf and a “Felony Footlong” patch on — yes! — his lunchbox?

While the government prosecutes this case “in some purported effort to keep law enforcement safe and free from food fights,” CBP employees “are joking about it.” The government, she says, is trying to turn a “gag-gift worthy moment into a federal criminal offense. We ask you not to allow them to do that.”

Goes to the definition of assault. Says it requires a “reasonable fear of immediate bodily harm,” and none exists given the agent’s long-sleeve shirt, long pants, boots, gloves and ballistic vest that is created to “keep you safe from military rifle fire” and so is “definitely going to keep you safe from a sandwich.”

Compares the incident to when an 8-year-old is “in the middle of a bedtime temper tantrum” and “takes that stuff animal with which he sleeps…and throws it at you. Are you offended?…Are you scared you might suffer bodily injury? No.”

Lawyer is Sabrina Shroff, for those asking. She proceeds to arguing that Sandwich Guy couldn’t have impeded or interfered with the mission of “high-visibility crime patrol and prevention” because he drew two dozen officers to the scene.

Now the parties are on the phone arguing over whether she was permitted to say — as she did — that Sandwich Guy was worried about a raid on the LGBT club’s Latin Night, and what to do about it.

She expresses dismay at having been interrupted. Quote on the screen from Sandwich Guy about Latin Night: “These fascists are racists.” Plays video. Point is that he did not “succeed” at stopping an immigration raid, because you can’t interfere with something that was never going to happen.

Ends by stressing that the jury doesn’t even need to figure out any of the verbs because the government can’t prove the adverb — not w/o the ability to inflict bodily harm. “Your gut should be telling you” (again, don’t think this one was intentional) “throwing a sandwich is not a forcible offense.”

Government annoys the judge by leaving much of his definition of forcibly out of its slide on rebuttal: “It has, like, 10 more words. Usually we try to, you know, tell the jury all of the words.” Now prosecutor is arguing physical harm isn’t required, only reasonable apprehension thereof.

Government says “this isn’t just a sandwich” — it’s the “screaming,” “cussing” and attempting to instigate. There’s an objection; the judge says, “I guess we’re just going to interrupt both sides. A lot.”

“I do think, counsel, this is getting way too long.”

The jury is entering deliberations now. If they come to a verdict today, cool! If not, they’ll be dismissed at 5 and we will return tomorrow for Day 4 of not the simplest case in the history of the world.