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.”
Thanks for the report. This just shows that the City has alot to hide. When it comes to the people’s right to protest the unjustness happening everywhere (from economic to ecological) the State fails to protect the people’s right and instead is stalling to let corporations continue fattening our elected politician’s pockets while we all suffer.
This isn’t democracy. It’s plutocracy. Look it up trolls.
Hmmm, and to think I always thought we were considered a Republic.
1) “Lowney’s reason, Pickard says, hung on a legal technicality: that a defense lawyer should access video related only to his own clients’ arrests.”*
Pickard is correct – this is a very commonly solved problem and the fact that DA is citing this as his only excuse 10 minutes before a hearing is an act of breathtaking arrogance. He’s telling the defense lawyers (and the court!) that he doesn’t care if it’s a shitty excuse, because he’s going to do what he wants to do, and he doesn’t seem to care that the judge has told him otherwise. Only a DA could possibly get away with a stance like this, and most wouldn’t even try, since they will have to be before this judge thousands of times in the future.
2) re Bob Callahan’s comments: I know he’s pissed off, but he should be more professional in his public comments.
3) “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.'”
@Nathan: A long time ago, I took issue with Matt Davis’s constant reference to the police as “the cops.”** I only mention this now because you bracketed “the cops” in Kreuscher’s quote. Since this paper explicitly eschews objectivity, it’s your business if you want to sound unprofessional by affecting a tone of juvenile edginess, but I think it’s overstepping to put your characterization in the mouths of others.
*This isn’t a technicality under any definition of that word. One of my favorite quotes these days: “A technicality is a law someone else doesn’t like.”
** http://blogtown.portlandmercury.com/Blogto…
Our DA is a total lazy prick.
The DA and the Portland police are BRO’S and they cover each others butts at all time! the DA looks away every time it is convenient to the Portland police!
Stop making police abuse claims or excessive use of force claims and actually charge a cop with a f@@king felony and watch how quickly the police and DA cover their butts!
The Portland police cover up FELONY charges against police officer’s and the state of Oregon is providing criminal cops with new identity’s in order to hide their criminal activity’s in Portland and their is no one a citizen can turn to to report this to!
Portland police kill and frame people in Portland Oregon and the DA could care less about it but the DA moves fast when it means covering a pedophile cops butt from public exposure!
Eric Carlson is/was a Portland police officer between 2005 through 2007 and in 2007 Oregon gave Eric Carlson a new identity! Why? because I caught him and his partner John Ray in the act of a break in and they raped, photographed, and murdered a child, and I caught them in the act on a audio recorder!
Guess what Portland! no one in your government gives a damn what Eric Carlson and John Ray did and they are hiding Eric Carlson from the public because he was the porn star on their photo’s they took and they killed the child as well and they asre caught bragging about it at Clackamas Walmart on March 26th 2007 at Clackamas Walmart!
Your city government hands out new identity’s to their corrupt cops like there candy bars and they don’t give a damn if several people know about it, they put a death threat in my home bragging about it!
My formal charges against the police are covered up and ignored by the Portland police and I am denied emergency services because I caught cops committing felony’s!
I am being blackmailed with death threats by these cops here in Portland and I just don’t give a damn any more I have nothing left to protect so they have nothing to threaten me with any more!
Our city government does not RECOGNIZE citizens felony complaints against cops and ignore complaints and they do whatever they have to do to demonize anyone that is a witness to criminal activity’s committed by cops!
I am reduced to publicizing these crimes on blog sites since my 911 calls were covered up by Portland police officer’s and the police waste no time in jumping those blog sites to discredit me by having several people gang up on me in a blog site, bring it pedophile cops gang up on me lets see how much I give a damn!
Terry Wagar
The Portland police treat formal complaints the same way they treat blogs on the internet, they ignore them!
Terry Wagar
This is the deal. I’ve lived in Portland all of my life and I know people here understand I’m very critical of Portland liberals. I don’t think all liberals are bad. But the handful of fucking idiots that shit on the American flag or light it on fire are fucking scumbags that need to get the fuck out of this country. I feel sorry for the well-intentioned liberals that really want to make a difference for all of humanity. Occupy may even have some people that fit that description. But the dumbfuck zealots can just fuck off overseas for all I care. This isn’t “Little Beirut”. No matter how bad ass these people think they are, they are NOT making any sort of difference. All they are doing are dividing people down the middle, mostly through the most despicable tactics. You have pasty little scumbags trying to cry racism for people who don’t need it. They envy hard-working people who have more than they do. They want services but don’t want to pay for them. They will protest ANYTHING yet never change ANYTHING. In summation, anyone that peacefully and lawfully protests and then, like a good little Native American, leaves the land as they found it, is welcome here. Anyone else, you are a fucking bum. Put down your bong, shave and bathe and fucking try to earn some money. If not, move out of the country. I hear France needs more arrogant pussies who smell like bad cigarettes and failure.
Portland police officer’s Eric Carlson and John Ray murdered a child near S.E, 87th and Division st early in the morning on March 26th 2007 and Clackamas Walmart a half hour later was printing out flyers because of those cops actions!
I caught them breaking into my apartment that morning and they were planting evidence in my apartment trying to frame me for4 their crimes!
I caught them in the act and my wife Joan Wagar was helping them in committing their crimes!
My wife Joan Wagar was having an affair with Eric Carlson at the time and my wife Joan Wagar worked at Clackamas Walmart and she along with another coworker printed out flyers giving me the blame!
At the end of Joan Wagar’s work day she came home and pretended to be a loving wife to my face trying to hide the fact she and her lover were framing me!
I had a all day long audio recorder in my wife’s purse and caught just about everything!
Eric Carlson has since changed his name and Portland police covered up my 911 calls and pretend nothings wrong!
Terry Wagar
I’m not really bothered by this at all. Opposing attorneys disagree over discovery details all the time, and (hold on to your hat) they are often paid to tell a story that tilts in favor of their client. So, are the Portland police delaying? Maybe. I certainly wouldn’t take opposing council’s word for it though. And even if they are delaying, are they doing so in a way that is prohibited? It doesn’t sound like it. For those who haven’t seen it up close and personal, this is what the legal process looks like, each side will take every advantage that they can.
@torgo, a) this isn’t a “detail,” b) while its true there are discovery disputes, if they can’t be solved, they are briefed and argued before a judge, who then makes a ruling. Once the judge has ruled, as Judge Albrecht has in this case, there is no more disagreement: the ruling makes obligations clear. Refusing to abide by the ruling based on a flimsy excuse provided 10 minutes before a hearing is the kind of conduct that gets non-DAs sanctioned, forcing them to pay the fees and costs the other side incurs in fighting them on their BS.