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.On
Aug. 6, 1999, in an earlier ruling on this case, Judge Marcus
threw out part of the state's disorderly conduct statute
as unconstitutionally vague. That ruling is now on appeal.
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After a two-year wait, local activists finally could cheer
earlier this month, when Circuit Court Judge Michael Marcus
handed down an oral ruling that could cripple a police practice
they say has been used to harass them for years.
The case stems from a Dec. 17, 1998, protest against the
U.S. bombing of Iraq, when Portland police made numerous
arrests. The ruling will also affect arrests made at this
year's May Day protest, because Marcus is hearing that case
as well.
Many of the protesters were arrested on misdemeanor charges
but, after being detained at the jail, were instead slapped
with non-criminal violations, much like speeding tickets.
Activists have long complained about the practice, because
if people are initially served with a violation, they can't
be held in jail. But once charges are lowered, they lose
the ability to retain a court-appointed defense attorney
or a jury trial.
A group of defense attorneys, working for free, conducted
a mass defense of the 24 defendants. On Dec. 1, Marcus ruled
in their favor, giving them two huge concessions.
First, Marcus ruled that if the defendant is subjected
to the stigma and hardship of being arrested and jailed
on misdemeanor charges, then the subsequent violation should
be held to a higher burden of proof--the same as if the
cases were prosecuted as criminal acts. (Citations require
only preponderance of evidence. Criminal convictions require
proof beyond a reasonable doubt.)
Second, prosecutors and defense attorneys say the ruling
probably means such defendants should have the right to
court-appointed lawyers in jury trials, even if their misdemeanor
charges are later reduced. Currently, defendants must appear
in front of a judge and pay for their own attorneys if they
challenge a violation.
Prosecutor Kevin Demer says the ruling could cost the state
millions of dollars in court costs. "It's more than just
these 24 people--this is a bigger issue," he says. "I respect
Judge Marcus; I can see how he made his ruling, [but] I
don't agree with it."
If Marcus' ruling withstands the inevitable appeal, it
would present police with two options. First, they could
continue to charge people with misdemeanors, knowing that
if prosecutors later reduce the charges it will be tougher--and
more expensive--for the state to obtain a conviction. More
likely, defense lawyers say, cops will have to settle for
citing protesters with infractions and releasing them on
the spot. As a result of the ruling, "you could see police
stop taking people in custody just to give them a hard time,"
said Stu Sugarman of the Belmont Law Center, which specializes
in protest cases. "You may see police not arresting people
on trumped-up charges."
Police spokesman Henry Groepper, however, said there is
no intent on officers' part to use trumped-up arrests to
harass protesters. "I've been a police officer for 30 years,
and when we arrest someone we have to have probable cause,"
he says. "The district attorney ultimately decides what
[charge] is appropriate."
The new standard for violations was merely the most recent
of several significant legal developments growing out of
the Iraq protest case.
Last year, defense attorneys in the case obtained a report
showing that the police use undercover informants to infiltrate
rallies; at the Iraq rally, an informant filed a "criminal
intelligence report" that identified Dan Handelman, a founding
member of Peace and Justice Works, as a "non-criminal" activist
"very active in calling for, arranging, and sponsoring demonstrations."
This was significant because state statute forbids police
intelligence-gathering on political activists, and in 1996
Marcus had issued a court order to the PPB to stop violating
that law, based on disclosures made in the case, Squirrel
vs. City of Portland.
Another embarrassing disclosure in the trial concerned
the arrest of Lloyd Alexander Frank on charges of failing
to disperse, with Officer William R. Johnson claiming in
his police report that Frank had been blocking traffic lanes.
Although in court Johnson testified to the exact location
in the middle of the street where he claimed to have arrested
Frank, defense lawyer Alan Graf played a videotape showing
that Frank was actually on the sidewalk when arrested.
Prosecutor Kevin Demer pointed to the large number of protesters--at
least 30 arrested that day--in excusing Johnson's flawed
testimony. "Do I wish it were different? Yes, I do. ...
But do I think this is an intentional fabrication? No, I
don't."
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