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Tuesday, June 26, 2012

Occupy the Courts! Cops Aren't Handing Over Records

Posted by Nathan Gilles on Tue, Jun 26, 2012 at 12:14 PM

Brian Lowney for the DA.

Yesterday afternoon, members of Occupy Portland once again packed the Multnomah County Courthouse for a visit with Judge Cheryl Albrecht, and once again no trial dates were set. The reason this time: the cops.

And that's why, after months of back-and-forth between the Multnomah County District Attorney's office and the occupiers' cadre of attorneys, it’s still up in the air whether some 60 Occupy cases will get trials.

On April 2, defense attorneys Richard McBreen and Leland Berger filed a motion with Judge Albrecht asking the DA's office to turn over evidence on the arrests held by the Portland police. The lawyers wanted everything the cops might've had on Occupy Portland and the circumstances that led to the protesters’ arrests. When Albrecht ruled on that motion, the two pretty much got everything they wanted. The ruling said the cops would have to turn over video footage, notes, and information on arrests—including data collected by any undercover officers. The DA's office would then be legally obligated to share with defense attorneys what the cops knew. Only it hasn’t yet.

A June 18 deadline to fork over those files came and went. And yesterday, McBreen and Berger wanted to know why. The answer they got from Brian Lowney, the deputy DA handling the Occupy cases, didn’t impress either them or the 50 or so occupiers in attendance.

It was the Portland police who aren't acting quickly enough, Lowney told the court. Nothing nefarious, said Lowney. It's just that the cops are just taking longer than expected. Berger wasn’t having it.

“The explanation the counsel has given is fully and entirely inadequate,” said Berger. Backing up his claim, Berger then asked the court to hear testimony from fellow lawyer Troy Pickard.

Because some 60 individuals were listed as defendants on the police records ruling, Pickard told the court, he took it upon himself to try to streamline the review process. Pickard tried to collect all the video taken by the cops, and then offered to share all the video records with lawyers representing Occupy defendants. It was this, or else the 60 defendants would each have to obtain and then pay ($31!) for their own video—which would be both time-consuming and expensive.

Pickard repeatedly emailed and phoned Lowney to try to coordinate their efforts. But as Pickard told to the court, Lowney never got back to him. That is, until yesterday, when he was told the DA wasn’t going to give him the video.

Troy Pickard testifies.

“I received no evidence from him [Lowney] prior to today that the information would not be available," Pickard told the court.

"We probably could have gotten in touch with Mr. Pickard earlier than this," was Lowney’s response. At this point, occupiers in the attendance got super pissed at the prosecutor.

Occupiers said the process set up by the DA's office was unorganized, confusing, and expensive. Currently, defendants who want their records have to make individual appointments with a records office set up by the DA's office.

In the courtroom yesterday, some occupiers told Judge Albrecht they tried that. One woman claimed she had gone down to the office to watch video of her arrest only to be turned away because she didn’t have an appointment. In response, Lowney told the court he hadn’t heard about anyone being turned away. Lowney then suggested defendants come to him personally to make appointments. Occupiers were also angry they were being charged $ 31 for each of recorded video. Many wondered why they couldn’t just bring their own blank disks or thumb drives. The judge told them that the price was not about the cost of the disk but the "total cost" of the record. Many occupiers were upset at this.

“Overpriced public records are illegal,” one man said as he stormed out of the courtroom. Another man followed after him making similar comments.

Granted, Lowney is the lawyer handling the majority of Occupy cases for the DA’s office, so getting in touch with Pickard might have slipped his mind. But the result for defendants is still more waiting, this for a group that's been diligently showing up for every court date they’ve been legally required to attend since this winter. And many are getting fed up with the slow pace of the proceedings.

One occupier told the judge he wasn’t getting the speedy trial he was entitled to under the law. Pickard then pleaded again to cut the bureaucratic red tape by asking the judge to settle the video issue by assigning one lawyer to handle all the records requests for every occupier. Albrecht told the court she had already ruled on the procedure and that it wouldn’t change.

Judge Albrecht herself might be losing some of her patience. To date she has been extremely careful in handling the Occupy cases and the occupiers themselves, numerous defense attorneys for Occupy told the Mercury. These lawyers suspect the judge is being careful not to set a bad precedent or trample anyone’s civil liberties in the process. Still the judge might be getting tired of the legal drama she set in motion.

Yesterday, she excluded, for the first time, an occupier from the court. It was the man who complained about the cost of the records and then stormed out. Albrecht was also visibly annoyed when, once again, it was apparent she wasn’t going to set trial dates. “I would like to get to trial sometime soon,” she said. Albrecht did suggest the court at least start talking about procedure for those trials. The decision she made: similar cases (bunched by when and where occupiers were arrested) should be tried together.

So what’s next?

Berger and McBreen insist trial dates not be set until they get the police files from the DA. When asked by the Mercury, Berger wouldn’t say whether he thought the DA's office was purposely dragging its feet on the records request. “If he [Lowney] is waiting on it [records] from police, then he’s waiting on it from police,” said Berger. “But whether or not they are waiting on the police, they have shown they aren’t acting with any urgency.”

The next date set for the Occupy cases is July 6. Albrecht says she plans on setting trial dates at that time, but that could depend on whether the cops step up and give the defense their records.

Albrecht is also expected to decide on constitutional arguments presented by the defense later this week.

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