Refuse & Resist! welcomes the unexpected release of Dr. James Pendergraft from federal prison. We believed from the outset that the federal prosecution and conviction of Dr. Pendergraft last year was motivated purely by anti-abortion sentiment. The open racism displayed by prosecutors further confirmed the reactionary nature of the government's effort to stop a high-profile, committed provider of abortions behind bars.
Dr. Pendergraft spent seven months in prison on this completely unjust conviction. While the conviction still hangs over his head, we are overjoyed for him, his loved ones, and the many women who have depended on his Florida clinics to help them resolve unwanted pregnancies. He displayed inspiring courage and dignity throughout his trial and imprisonment, and is truly a hero for persevering in his commitment to save women's lives.
We continue to press for his complete exoneration of all criminal charges.
[Ocala Star-Banner - 2/27/02] OCALA -- A federal appeals court has ordered abortion provider Dr. James Scott Pendergraft IV and his associate Michael Spielvogel freed from prison while they appeal their convictions.
The 11th U.S. Circuit Court of Appeals in Atlanta issued an order Wednesday afternoon, directing the U.S. District Court in Ocala to order Pendergraft and Spielvogel freed pending the outcome of their appeals, subject to conditions to be set by the District Court.
Senior U.S. District Judge William Terrell Hodges later issued an order that the two men be freed, subject to the same bond conditions they were under before trial.
Pendergraft, the owner of the Ocala Women's Center and four other Florida clinics which provide abortion services, was convicted in Ocala last February of attempted extortion, conspiracy and mail fraud, following a month-long federal trial. Spielvogel was convicted on the same charges and two additional charges of making false statements to the FBI and filing a false affidavit.
Pendergraft was sentenced to 46 months in prison, and Spielvogel to 41 months. Since last July, Pendergraft has been imprisoned in Atlanta, and Spielvogel at Eglin Air Force Base near Fort Walton Beach.
Pendergraft's appellate lawyer, Bruce Rogow, said the release order came a day after the court heard oral arguments in the men's appeal. Rogow predicted the order is the first step toward a reversal of Pendergraft and Spielvogel's convictions.
"They would not have let him out if they did not think they were going to reverse on the issues," Rogow said. "I think this is a clear sign the convictions will be reversed."
Pendergraft spokeswoman Marti Mackenzie also was happy about the court's quick ruling.
"We are vindicated to a certain extent, and incredibly thrilled that the 11th Circuit chose to issue this very positive ruling as quickly as possible," she said. Pendergraft's lawyers had expected a delay of weeks or months while the appeals court considered the case, she added.
Mackenzie stopped short of predicting an outright reversal, however.
"We are really just dealing with this positive development today," she said.
The case stemmed from a 1999 meeting between Spielvogel, Pendergraft, his then-lawyer Roy Lucas, and Virgil "Bill" Wright, a lawyer representing the county. Pendergraft had filed a lawsuit three months earlier, after then-sheriff Ken Ergle and Ocala Police Chief Morrey Deen refused to allow their off-duty officers to work as security guards at the Pine Avenue clinic.
At that meeting, Spielvogel repeated allegations against Marion County Commissioner Larry Cretul that he had first made in an affidavit, alleging Cretul had threatened him, his wife -- who works for Pendergraft -- and the clinic.
Pendergraft filed a second affidavit supporting Spielvogel's version of events. On an FBI videotape of that meeting, Lucas sought a settlement from the county, and Pendergraft vowed to bankrupt the county and put a statue in the center of town saying he "brought freedom to Ocala."
The appeals court judges focused heavily Tuesday on comments made by Assistant U.S. Attorney Mark Devereaux during his closing argument at the trial, Rogow said. During that closing argument, Devereaux referred to Pendergraft as "shucks and jives." when asked a question.
Because Devereaux is white, and Pendergraft is black, Pendergraft's lawyers objected to the characterization as a racial remark, an allegation Devereaux denied. When Pendergraft's lawyers raised the issue with Hodges in a motion to allow Pendergraft to remain free on bond while the appeal was pending, Hodges found no racial intent to Devereaux's remarks.
Of 26 questions the appeals court judges asked Tuesday, 16 focused on the "shuck and jive" remark, Rogow said.
Spielvogel's attorney, Daniel Brodersen, said he had never seen the appellate court act so quickly following oral arguments, and also predicted a reversal of the convictions.
"I think it's a fairly good indication they're going to take some sort of action. I've been doing this for 16 years," he said. "This just doesn't happen. It's a pretty amazing thing."
The appeals judges also appeared concerned about the fundamental issues of the case, Brodersen said.
"The conduct in the case, even if you look at it in the light most favorable to the government, just did not rise to the level of a crime," he said.
Steve Cole, spokesman for Middle District of Florida U.S. Attorney Mac Cauley, said Cauley's office was not aware of the details of the appeals court ruling Wednesday afternoon, and could not comment on it without seeing it.
[revised 3/1/02]
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