Occupy the DA's Office 

Protesters' Legal Victory May Have Broad Impact

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THANKS TO a potentially far-reaching ruling by a Multnomah County judge, dozens of Occupy Portland misdemeanor cases that otherwise would have been fast-tracked as "violations" may now have to be prosecuted as vigorously as any other criminal case.

Avoiding traditional "violation trials" would be a crucial victory for defendants in the 120 or so Occupy cases the district attorney's office says it's tracking. Instead of the usual routine—hearings without a defense attorney, in front of just a judge, with the threat of a fine, but not jail time or probation—the Occupy defendants will now be entitled to jury trials and public defenders. And the burden of proof will rise to "beyond a reasonable doubt."

"They're going to have to give our clients court-appointed lawyers, or they're going to have to dismiss the cases," says Bear Wilner-Nugent, the attorney who made the motion behind Judge Cheryl Albrecht's ruling, which was issued Monday, February 6, and first reported by the Mercury on Tuesday, February 7.

But in what could be a curious side effect, the ruling by Judge Albrecht could also wind up affecting hundreds of other non-Occupy violation cases, according to gleeful defense attorneys—undercutting a cash-saving strategy the district attorney's office turned to in 2010, that has also drawn fire from civil liberties advocates.

Violation trials have long earned the ire of critics who see them as a rights-skirting path for coaxing guilty pleas from overwhelmed defendants, sometimes in wobbly or flawed cases, who may not realize that a get-out-of-jail-free card (they receive just a fine instead) still won't keep a misdemeanor conviction from showing up on a background check.

"The reason is to save money," says public defender Chris O'Connor, but also to help produce convictions in "weaker cases," or cases with "more sympathetic defendants where there's evidentiary problems."

"Why is this important? 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."

Albrecht's ruling technically only applies to the 20 Occupy defendants Wilner-Nugent cited in his motion calling for full court rights. Another hitch is that the ruling only applies to violation cases that started with an arrest, not with a citation. But Albrecht has been assigned nearly every single case involving an Occupy defendant, which is why the ruling's reach is so broad.

"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," Wilner-Nugent 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."

The trick will be convincing other judges that Albrecht's logic is sound—"persuasive authority," as Wilner-Nugent put it. O'Connor says he's been talking to judges in other cases about adopting Albrecht's ruling.

Jeff Howes, the senior deputy district attorney who oversees all misdemeanor cases, called the ruling "well written," but played down its impact without more time to see what those other judges might decide.

"Everybody collectively in the system is taking a look at the ruling and trying to analyze the next steps," he says. "Does the ruling affect every other case that we review and issue as a violation? I don't think we're there yet, and I don't think we know."

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