- Denis Theriault
- Eviction at Chapman Square
Last week, we reported that a little more than half of the remaining Occupy Portland court cases had won the right to jury trials and legal counsel. We also conjectured—based on multiple interviews—that District Attorney Mike Schrunk might dismiss these cases rather than waste time and energy appealing the ruling or taking them all the way to trial. Well, we were wrong. Instead of admitting defeat, the DA’s office has decided to continue fighting—taking the cases to the Oregon Supreme Court.
In the Multnomah County Courthouse today, Deputy DA Brian Lowney said his office was going to file a “writ of mandamus” saying, in effect, that Judge Cheryl Albrecht’s decision last week to allow jury trials for those 49 Occupy cases was a bunch of legal nonsense.
This isn’t an appeal as such. Although a writ of mandamus acts in much the same way. As one defense attorney put it, think of it as “an appeal on steroids.” The writ basically fast-tracks the appeal process by going straight to the state high court, which now must decide whether Albrecht’s ruling is in accordance with the law. But unlike under the normal appeals process, this all happens before any defendants go to trial. And that’s the whole point.
This is not only a very shrewd move on the DA’s part, but it’s also not too surprising given how the DA has consistently fought tooth and nail with Occupy’s legal brain trust to keep occupiers from receiving jury trials. That’s in part because the stakes in this fight could apply to hundreds of other low-level cases—which have nothing to do with Occupy—handled by prosecutors.
As we reported last spring, jury trials first came up as a possibility back in February, when a different Albrecht decision granted the right, and court-appointed legal counsel, to some occupiers. The DA got around this by dropping the majority of charges that qualified for that ruling, but last Monday, October 15, Albrecht ruled that many of the remaining Occupy cases fell under a more recent appellate court ruling. And the DA is again hoping to avoid jury trials, this time by playing the mandamus card.
How the Oregon Supreme Court will rule is the question on everyone’s minds. Just don’t expect a resolution anytime soon.
The higher court isn’t expected to rule on the mandamus writ for at least two to three more months. This means many occupiers will have been in court proceedings for well over a year by the time they finally go to trial. If they go to trial.
Defense attorney Peter Castleberry says that this added delay will only help Occupy’s lawyers argue another series of motions claiming their clients have been denied the right to speedy trials. But, for now, the majority of Occupy cases have been put on hold.
“That’s in part because the stakes in this fight could apply to hundreds of other low-level cases—which have nothing to do with Occupy—handled by prosecutors.”
That’s the key here. As I understand things, the COA ruling essentially told the DA which charge to use in the future that wouldn’t trigger the jury right in protest cases (i.e. interfering with police), but for every other kind of case, this “social stigma” nonsense seems to be begging to be overruled. I’m all for sanity and clarity in arrest/charging/prosecution, but there needs to be a more workable standard than simply the presumed stigma attached to a crime, which seems to be chiefly controlled by the crime’s name. That’s just a weird way to do things, period.
Just to clarify what Your Rights are:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” —
So ask yourself: Is the Legal System trying to make these folks seem like “criminals”?
Were the defendants previously treated like “criminals” when they were arrested?
Will society judge the defendants as “criminals” after the trial?
If you don’t believe me – that these people were arrested and treated as criminals – then you must still agree that the City’s citation against the defendants is essentially no more than a lawsuit against these defendants, and if that is this case, then these defendants are STILL afforded jury Rights:
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” —
I think this is a text book example of why the 6th Amendment is so important, and why in addition we have the 7th Amendment. The main purpose of a trial by Jury is Jury Nullification, where you can stand in front of your peers and explain to them that what you were doing was not criminal, and that you did nothing wrong – this is equal in Criminal and Lawsuits.
Imagine the precedent this sets. Where society can instigate people to arrest, then arrest them on criminal charges (thereby depriving them of rights), only to reduce their charge to a citation in order to prevent a proper legal judgment. It would be fine if this was done on special occasion, but when it is done by a matter of policy it’s totally wrong and in clear contradiction to the Bill of Rights.
I don’t know where to start with that, FA.
1) Jury nullification is not the point of the jury system, it is a strongly, strongly disfavored “doctrine.” We change laws democratically through a legislature, not through citizens deciding to selectively ignore the laws they are responsible for passing. Nullification is what Jim Crow juries did for white murderers.
2) Society instigates people to arrest?
3) The debate over what’s “criminal” and deserves a jury trial/free counsel versus what isn’t was solved in a workable fashion over 70 years ago: if the potential sentence is more than 6 months, you get a jury/free counsel. You can debate the wisdom of the line as drawn, and you can debate whether the Constitution actually allows that line to be drawn, but as a standard, it’s far better than what seems to be at issue here: deciding the question based on what charges seem to sound like they carry more or less of a social stigma.
That determination can vary by the time, place and judge. Your rights should not vary by time, place or judge.
1) Nullification has done lots of positive things, and having spent years of my life doing legal research on the Founder’s, Nullification was clearly their intent, and I support it always. What’s the point of trial-by-Jury-of-peers if not for Nullification? Once you’ve formed an hypothesis, then ask Thomas Jefferson, or even Hamilton.
2) Yes, social unrest is entirely controlled. If you appease people you won’t have unrest. But more directly, when the cops tell you to get out of the street and then arrest you on the sidewalk, or just grab you because you’re near a mob, or they start beating people with batons who did nothing wrong, I think that’s all instigation. Police regularly stoke a crowd to violence, in fact, I’ve never been in a crowd of people who got violent first, I’ve always seen the cops throw the first punch. That’s instigation, too.
3) Buck v. Bell – That was settled 85 years ago. Sometimes the Court gets things really, really wrong. I’ve provided the text of Your Rights. Case Law is always evolving, often contradicting, and used only when politically expedient.
Great post’s today FA!