Fincher Found Guilty: Trial By Jury In Name Only
Appeal to Follow
By Loretta Weston
The Lt. Command of the Washington County
Militia, Hollis Wayne Fincher, was pronounced guilty of owning illegal weapons
Friday afternoon, January 12, 2007, at about 3:15 PM by a jury of 9 women and 5
men at the U.S. District Court in Fayetteville, Arkansas presided over by Judge
Jimm Larry Hendren.
Sixty-year-old Fincher was arrested November 20, 2006 at his home on Black Oak
Road near Fayetteville. The early morning raid involved federal agents from the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF ) and FBI and assisted
by Washington County Sheriff's Office, Fayetteville Police Department,
Springdale Police Department, Arkansas State Police, Arkansas State Bomb Squad
and the Madison County Sheriff's Department.
While awaiting trial, Fincher was held in the Sebastian County jail during
which time he became so ill that hospitalization was required. AFV has learned
that the poor diet jail food, resulting in a loss of 40 pounds in 2 months, may
have contributed to his health condition. The Fincher family say they were not
notified of his hospitalization and his attorney, Oscar Stilley, said that his
request for diagnosis and the attending physician's name were not forthcoming.
After Fincher was later returned to the jail, his condition worsened again.
According to our sources, Fincher did not receive his prescribed medication for
13 hours and Stilley was not allowed a copy of Fincher's medical records from
the jail.
Readers will recall that 6 illegal Mexicans were released at the indictment
(not considered flight risks by the court) while Fincher, whose family were
1800s pioneers settling on the land where his family still resides, was placed
under a $250,000 bond, an unheard of amount for similar cases of allegedly
illegal gun possession.
Because of Fincher's failing health, the trial originally set for Monday,
January 8 was postponed one day to assure he was physically able to withstand
the stress of courtroom proceedings. Once jury selection was completed on
Wednesday morning, federal prosecutor Wendy Johnson called ATF Senior Special
Agent Wade Vittitow to the stand where the individual seized guns were
submitted as evidence. As each gun was examined by Vittitow, it was placed
stock down on the floor and leaned against the railing of the jury box,
basically at the feet of several female jurors. Was this an intimidation
tactic?
Upon cross examination, it became clear to observers that the federal
prosecutors were determined that no mention of "constitution", "2nd Amendment",
"militia" or "liberty" were to reach the jury's ears. AFV had learned that the
prosecution had submitted a motion to the court prior to the trial to ban any
constitutional arguments. After several sustained objections during defending
attorney Stilley's cross examination of Vittitow, an approach the bench request
was made by Stilley. Whether requested by the judge, the prosecutors or the
defense, approaching the bench became so frequent that observation showed the
jurors were becoming annoyed.
Thursday morning, the prosecutor's arms expert witness, Earl Griffith, after
explaining to jurors how the individual guns had been modified to be fully
automatic, was then cross examined by Stilley. A buzz of astonishment swept
through the courtroom when Griffith said he was "not familiar with the 2nd
Amendment" and further stated that he had "no knowledge of Arkansas state laws
on weapons". Griffith's final misnomer was saying that NATO is the "North
American Treaty Organization" — for the sake of the jury, Stilley corrected him
that it is the North Atlantic Treaty Organization. Such questioning by the
defense should have caused doubt with the jury as to Griffith's actual
credibility.
With the jury excused, the defendant, Wayne Fincher, (called by friends "the
Gentle Giant"), was sworn in for his testimony during the afternoon on
Thursday. After an hour and a half of his studied accounts of both the U.S. and
Arkansas constitutions and related militia duties, the prosecution produced a
letter dated January 4, 2007, signed by former Governor Huckabee, stating in
effect that no "organized militias" existed in the state of Arkansas. Indeed,
as Fincher related, Arkansas' Constitution states that every citizen ages 18 to
45 are on call as militiamen. Therefore, Huckabee's letter evidences his own
ignorance of Arkansas' constitution.
The judge then spent about 30 minutes referencing past court cases and quoting
previous "precedents" set by other judges in similar cases. Judge Hendren
ultimately ruled all of Fincher's testimony as inadmissible (jury could not
hear) completely disregarding both U.S. and Arkansas constitutions.
In essence, Judge Hendren denied Fincher his constitutional right to defend
himself in a court of law. Having been denied their entire defense, both the
prosecution and defense rested late Thursday afternoon. Closing statements were
presented before the jury Friday morning followed by deliberation. Observers
stated that about 2:00 PM, the jury asked for further instruction regarding
what to do about having agreed on only one count. The judge told them that if
they could not agreed on both counts, a hung jury would result. The jury
deliberated approximately another hour, at which time they presented their
verdict of guilty on both counts. Mrs. Fincher told AFV that her husband's
attorney noticed that most jurors were keeping their eyes focused down during
the reading of the verdict. Were they too ashamed to look the defendant in the
face?
Considering the time this reporter spent in the courtroom observing, the jury
may only have heard about 30% of the evidence that could have freed the
defendant. It is my personal opinion that this case was a jury trial in name
only.
Other questionable items were:
1) a jury consisting of 14 people. Did all 14 vote?
2) the letter signed by former governor Huckabee. Shouldn't the letter have
been considered "hearsay"?
3) Jurors who took notes were required to leave their notebooks laying face
down on the table in the jury room when they left for the day. Shouldn't their
private notes have been secured to prevent any court employee from access?
With the Admiralty flag standing silently by, Judge Hendren instructed the jury
saying "no judging the law", that he "determines the law", an order in direct
contradiction to jury nullification, which states that it is the juror's duty
to nullify or void a bad law, thus freeing the accused.
To recap, in an Admiralty Court, where Judge Hendren determined the law,
selected the evidence the jury could hear, unconstitutionally instructed the
jury regarding their duties, ignored laws of both Arkansas and U.S.
Constitutions, ruled by referencing previous unconstitutional judges' rulings,
and may have accepted hearsay as evidence from the prosecution, all proceedings
support that Hollis Wayne Fincher was denied justice.
As a larger legal team prepares an appeal, another body of determined minds
will be working towards acquiring a more reasonable bond than that set by
Magistrate Beverly Stites-Jones in November. Sentence will be pronounced in 30
to 45 days.
Meanwhile, cards and letters of encouragement can be mailed to: Hollis Wayne
Fincher, Sebastian County Jail, 801 South A Street, Fort Smith, Arkansas, 72901
and donations payable to: The Wayne Fincher Defense Fund; and mailed to: Don
Bright, 2225 Mockingbird Lane, Fayetteville, AR 72703. Receipts are available
at request.
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