Last week, we reported that two lawyers for Occupy had formally submitted a motion asking the Portland Police Bureau turn over any documents related to Occupy Portland—including information on whether the cops had undercover agents among the protesters. This morning, Multnomah County Judge Cheryl Albrecht ruled on the lawyers’ motion, and it looks good for Occupy.
Attorneys Richard McBreen and Leland Berger got all but two of the nine items they requested in their motion. Under Judge Albrecht’s ruling (pdf) the Multnomah County District Attorney’s Office will now be required to retrieve the requested evidence from the cops. This includes video taken by the police, police notes, and information on the circumstances that saw pepper spray used on occupiers. Not included in the motion—officially called a “motion to compel discovery”—was a request for police internal affairs reports. And the Occupy lawyers had to compromise on their request for information on undercover officers. But for the most part the Occupy lawyers got what they wanted.
“The ruling looks pretty favorable to our clients,” says McBreen. “The most important stuff we got.”
McBreen says he is a little disappointed about not getting access to the internal affairs reports. But he adds, these reports could come out in later court cases, though not ones currently included under his and Berger’s motion.
The request for information on undercover officers also is a little bit tricky.
As we reported last week, Brian Lowney, representing the DA's office, told the court on April 2 that he had no knowledge of any covert actions taken by the police. Now, following Albrecht’s ruling, the DA will have to formally ask the Portland Police Bureau if any undercover officers were present at the protests. The cops can, of course, say yes or no to this. And McBreen adds, he is uncertain whether the police are now legally obligated to tell the truth, or if the legal obligation applies only to the DA's office. But if the answer is yes, the ruling states the cops are not required to name these covert officers. That request, McBreen and Berger didn’t get.
But not naming the undercover officers doesn’t mean they won’t be called as witnesses, says McBreen. The identity of undercover cops can still be protected even if they are asked to testify. Although Occupy lawyers are skeptical covert cops will be called to testify.
“What I expect to happen,” says McBreen, “is the DA is going to check and they [the Police] are going to say there were none.” McBreen says this is the most likely outcome because the police didn’t necessary need undercover agents. A lot of the information about protesters’ movements and activities were publicly posted to sites like Twitter, which, says McBreen, makes undercover agents largely unnecessary. “But if the police had someone dressed as an occupier, we would ask that person to testify.”
Now that Albrecht has ruled on the motion, the waiting game can begin. April 30 will once again be a motion-filled day in the judge’s courtroom. On that date, McBreen says he expects the DA will ask Albrecht for time to compile all the requested evidence. The defense will then also need its own time to review what the police end up forking over, but McBreen says he is hopeful, saying he is starting to see an “end in sight” to the long court battle that began last year.
“I know these occupiers are waiting for their day in court and their jury,” he says. And in the coming months they might just get it.