Jamison Arrests

A startling new development in the Occupy Portland court fight had defense lawyers scrambling on their smartphones and laptops this morning. The reason? A new court of appeals decision might mean occupiers could get their long-sought jury trials after all.

The trial for the October 30, 2011, mass arrests at Jamison Square was scheduled for this morning. But because of a State of Oregon Court of Appeals decision issued just minutes before it was supposed to begin, the trial was postponed until mid-October. And with good cause. As lawyers for Occupy discovered while rifling through the decision as the proceedings began, the appellate decision on an unrelated, but potentially similar shoplifting case, could grant jury trials for their defendants. This would follow months of failed motions attempting to do just that.

Get ready for a little bit of legalese. The appellate ruling came in the case the State of Oregon v. Tawanna Fuller. It goes like this: Fuller was arrested on suspicion shoplifting, and was booked in jail and initially charged with a Class C misdemeanor count serious enough to entitle her to a jury trial. The Multnomah County District Attorney's Office later reduced her misdemeanor down to a violation—something they do pretty regularly to speed the legal process along.

As a result, Fuller lost her right to be judged by a jury of her peers, even though she was still treated, because of her arrest, like a more serious criminal. Her lawyer said "hell no," and appealed, saying in effect, give us back our jury trial. This morning, the higher court ruled in Fuller’s favor, saying yes.

How could that effect Occupy cases? Like this: Many occupiers also were arrested on misdemeanor charges, like criminal trespass, normal protest stuff. But these charges were later reduced by the DA to mere traffic violations. Misdemeanors get jury trials, and violations don’t. See the similarities? Occupy's legal brain-trust certainly does.

During this morning’s brief proceedings, defense attorney Leland Berger told Multnomah County Judge Cheryl Albrecht she should consider State v. Fuller before proceeding any further. She did just that.

The new date is October 15. Albrecht is expected to rule before then, in the next few weeks, on how exactly the shoplifting case might apply to the protesters and if Occupy Portland is also entitled to jury trials.

If she decides, yes on juries, this will mean not only setting jury trials for cases that haven’t been argued yet—like the Jamison cases—it also will mean retrying cases like the Chapman Square mass arrests, which finished proceedings weeks earlier but are still awaiting a ruling from the judge. (This may not be welcomed by some occupiers who thought their courtroom nightmares were over). But whether Albrecht will say yes to jury trials will depend on whether she decides the Occupy cases are similar enough to the Fuller case.

Essentially, the higher court ruling says Fuller has the right to a jury because shoplifting has a heavy social stigma attached to it. It’s now up to Albrecht to decide whether criminal trespass during a protest has the same social stigma. “So who knows,” says defense attorney Pete Castleberry, “maybe we will get jury trials after all. The fight goes on.”