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Tuesday, February 7, 2012

Judge's Ruling on Occupy Prosecutions Threatens DA's Reliance on "Violations"

Posted by Denis C. Theriault on Tue, Feb 7, 2012 at 7:03 PM

Thanks to a potentially far-reaching ruling by Multnomah County Judge Cheryl Albrecht, a whole mess of Occupy Portland-related misdemeanor cases that had been busted down to time- and cash-saving citations, or "violations," may now have to be prosecuted as vigorously as any other criminal case.

Instead of the usual routine for so-called violation trials—hearings without a defense attorney, in front of a judge, with the threat of fine, but not jail time or probation—the Occupy defendants covered by Albrecht's ruling will now be entitled to jury trials and public defenders. And the burden of proof will rise to "beyond a reasonable doubt."

The ruling, issued late Monday, came in response to a motion by attorney Bear Wilner-Nugent, the lead attorney on a case with some 20 occupiers named as defendants. It's technically binding only on the current case before Albrecht, but it could wind up affecting dozens of other non-Occupy cases, gleeful defense attorneys tell the Mercury—under-cutting a reliable budget-stretching strategy by the Multnomah County District Attorney's office and maybe even changing the way officers interact with protesters.

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"They're going to have to give our clients court-appointed lawyers," Wilner-Nugent says, "or they're going to have to dismiss the cases."

Jeff Howes, the senior deputy district attorney in charge of misdemeanor cases, didn't return a miessage seeking comment about Albrecht's ruling. Deputy District Attorney Brian Lowney said only that "we're looking it over, and we're considering our response."

Violation cases have long earned the ire of criminal justice advocates who see them as an easy, due-process-skirting path for coaxing guilty pleas from overwhelmed defendants, sometimes in wobbly or flawed cases, who may not realize that their get-out-of-jail-free card doesn't still mean a misdemeanor conviction won't show up on a background check.

"The reason is to save money," says public defender Chris O'Connor, or help along "weaker cases" or cases with "more sympathetic defendants where there's evidenciary problems." He added that "the net result is people plead guilty, people don't challenge certain things, because they don't have legal counsel to point out other defense strategies or other flaws in the state's cases."

Wilner-Nugent suspects the DA's office won't be able to appeal the ruling and added that he expects other attorneys arguing violation cases in front of other judges to invoke the same legal logic as laid out by Albrecht. One hitch, though, is that the ruling only affects violations that originally were pursued as misdemeanors by police, complete with arrests, and were later reduced by prosecutors.

"If I were the city attorney's office, I'd strongly advise the mayor to consider ordering the Portland Police Bureau to issue citations only for violation cases," he said—suggesting they might stop arresting protesters and booking them on misdemeanor charges and just give them tickets in the first place. "The problem is they want to maintain arrests as a tool to disrupt the freedom of expression."

Wilner-Nugent, doing some napkin calculations, said 160-odd Occupy cases alone could rack up some "$100,000 in defense costs alone, and that has nothing to do with prosecution costs."

O'Connor said earlier this afternoon he was already itching to invoke Albrecht's ruling in a case unrelated to Occupy.

"Why is this important?" he said. "Because when you get arrested for some stupid misdemeanor, on the fringes of some protest, you're actually going to get a jury and you're actually going to get legal counsel helping you, even if the state tries to avoid that by reducing the case to a ticket. It's going to look like what you think it looks like on television."

Not that every defendant who takes advantage of his or her full rights will wind up winning. As O'Connor points out: "It could cut the other way... You could still lose."

But more defendants, at least, might have a fighting chance.

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