Sandbagging Occupy? 

Protesters, Lawyers Gripe the DA Has Been Too Slow to Release Police Records

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IN APRIL, lawyers for Occupy Portland opened a new front in the movement's battle against the city, asking a judge for everything the Portland Police Bureau had on dozens of protest arrests since last fall ["Courthouse: Occupied!" News, April 5].

Miraculously, they got pretty much everything they wanted—including access to police notes and police video. Only they didn't. Although a judge ruled in their favor, occupiers and their lawyers now say the district attorney's office has been dragging its feet about providing the records. And any video that occupiers have received, they say, has been edited to favor the prosecution.

This fight is just the latest in a legal skirmish between the DA's office and Occupy that began this winter, when the DA reduced dozens of misdemeanor charges to violations in an attempt, say occupiers, to deprive them of legal counsel until their trial dates.

"At protests, you will often see protesters doing what's called 'sandbagging,' where they will go limp and won't make it easy for the police to arrest them," says defense attorney Troy Pickard. "And I think that's what the DA is doing here. They are sandbagging the protestors by not agreeing to make this easy."

Of note, it took a full week after a court-ordered June 18 deadline for Deputy DA Brian Lowney, in charge of prosecuting Occupy cases, to finally tell defense attorneys that the records would be provided.

Finally, on Wednesday, June 27, Lowney provided the first batch of documents. But that was only after Portland's city attorney got involved and asked Judge Cheryl Albrecht to review certain records before they're released. The judge ruled that was fair, which means it may not be until Friday, July 6, that the defense receives files promised weeks earlier.

The biggest issue for many occupiers has been access to police video—an important tool to show whether they were following cops' instructions when arrested. In court last month, the issue consumed the proceedings.

On Monday, June 25, Occupy defendants once again packed Albrecht's courtroom. On that day Pickard described his ambitious plan to collect all the available police video.

Pickard said he made several attempts to contact Lowney, but the prosecutor didn't return his calls or emails. It wasn't until just minutes before, in court, that Lowney finally told him he wasn't going to hand over the video. Lowney's reason, Pickard says, hung on a legal technicality: that a defense lawyer should access video related only to his own clients' arrests.

"And I agree with him as a technical matter," says Pickard. "But this was never about a technical matter. This was always about making things easier for the defendants. Which is one reason I am so surprised the district attorney responded in this way, because this is such an easy hoop to jump through."

Jeff Howes, the senior deputy district attorney in charge of misdemeanor cases, wouldn't comment on Lowney's actions because the case is still pending. But he did say he thinks the records process is sound.

"I am comfortable in saying it's a good process," he says. "I think the inference or insinuation that it's strategic to delay is not borne out by our overall record."

But Pickard is far from the only one struggling to get police video.

"One of my clients was at a peaceful protest and there are 26 DVDs attached to her file, while my other client had the shit beat out of him and they have zero," says attorney Robert Callahan. "I say 'bullshit,' and I'm asking the court to turn over the raw video to us."

Callahan says footage on YouTube shows cops filming near Chapman Square on November 13, just a half-hour before his client says the cops beat him. After repeatedly asking about the video, Callahan filed a motion on June 28 asking that cops release all the raw video they have on his client's arrest. And on July 6 he might get his wish.

Attorney Kenneth Kreuscher says he’s also looking for police video that shows his client’s arrest. Kreuscher is representing Liz Nichols, the 20-year-old protester whose pepper-spraying outside Pioneer Courthouse Square on November 17, 2011, became an iconic moment for Occupy. Kreuscher shared police video with the Mercury that clearly shows at least one other cop filming while Nichols was sprayed and then arrested. “When I asked [Lowney] if there was more, he said that’s all [the cops] have,” says Kreuscher, “and that’s either true, or untrue, or he’s confused.”

What video has shown up, according to attorneys and occupiers, has been edited. Portland Police Bureau spokesman Robert King told the Mercury he couldn't comment on missing video or if anyone's editing the video before sending it to the DA.

But the police video does appear to be edited.

On Monday, July 2, occupier Mitchell Drinkwater, who is currently without a lawyer, showed the Mercury a police-produced video he says he received from the DA. The footage has been sliced into chunks from one to five minutes long. Neither Drinkwater, nor his arrest in Shemanski Park—nor footage inside the park itself—appear in the video.

"They said this is everything from Shemanski Park," says Drinkwater. "So where is Shemanski Park?"

In court on June 25, at least a dozen occupiers stood up and reported problems viewing their videos. One woman said she and others tried to make appointments with the DA's office, but were turned away. Many wondered why they were being charged $31 for each disk of video. Several asked why they couldn't bring their own thumb drives or blank disks.

Some of the problem might be that defendants, left without public defenders until trial dates are handed out, aren't familiar with court procedure. But Kreuscher isn't so sure.

"With the video I saw, which I reviewed with Lowney, it took literally two to three weeks of constant phone calling [to him] to set up an appointment. And once I showed up I had to wait for 45 minutes," says Kreuscher, "and if that is the sort of treatment they are giving to defense lawyers I can't imagine that defendants are being treated any better, and in fact I imagine they are being treated worse."

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