Category: In The News

So, what is going on in Portland, Oregon?

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Yesterday, Josh Campbell of CNN, tweeted he was headed to Portland, Oregon, to “sort out what in the world is happening there.”  As if there hasn’t been plenty of local media journalists, live-streamers, and freelancers covering what is happening in Portland every single day since protests began in the city after the death of George Floyd on May 25, 2020.

The truth is, there has been excellent coverage, and that’s why Portland is once again in the national spotlight.  Unfortunately so far, most of that coverage seems to have received little attention outside of social media until footage of federal officers grabbing a protester off the street gained traction.

That footage is extremely disturbing and certainly demands national attention.  We are at a point where anyone exercising their First Amendment rights can be detained by armed individuals who do not identify themselves, loaded into unmarked vehicles, and whisked away with no explanation.  But the truth is, we’ve been slipping down this slope for quite some time, and what’s been happening in Portland is just another taste of what could happen anywhere in the US.

There have been several lawsuits filed by journalists against the Portland Police Bureau even before the federal officers moved in.  Since the events of July 15th, there have been additional lawsuits filed against federal agencies.

Oregon’s Attorney General, Ellen Rosenblum, filed a lawsuit on July 17, 2020, against the United States Department of Homeland Security, the United States Marshals Service, the United States Customs and Border Protection, and the Federal Protection Service, alleging they have violated Oregonians’ civil rights.

Rosenblum’s statement says, “these tactics must stop.  They not only make it impossible for people to assert their First Amendment rights to protest peacefully.  They also create a more volatile situation on our streets.  We are today asking the federal court to stop the federal police from secretly stopping and forcibly grabbing Oregonians off our streets…”

The ACLU has also filed multiple lawsuits against federal agencies for actions around the country.  Acting interim executive director of the ACLU of Oregon, Jann Carson, says, “what is happening now in Portland should concern everyone in the United States. Usually when we see people in unmarked cars forcibly grab someone off the street we call it kidnapping. The actions of the militarized federal officers are flat-out unconstitutional and will not go unanswered.”

There’s little doubt protests will continue, in Portland and around the country.  Time will tell what comes of them, and these lawsuits, and what the lasting effects on freedom will be in this country.

 

**If you want good, solid, local coverage of what is happening daily in the protests in Portland, as well as good sources for updates on the various related lawsuits, I have compiled a list of journalists and freelance live-streamers on Twitter you can check out here.  Many of them have links in their bios to ways you can ‘tip’ them if you want.

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Image courtesy of Needpix.com

 

US Supreme Court upholds dual sovereignty doctrine

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Katie Aguilera

The United States Supreme Court has upheld the dual sovereignty doctrine in a seven to two vote in the case Gamble v. United States. This doctrine holds that the States’ governments and the Federal government are separate sovereign entities and can therefore prosecute a defendant for the same offense without violating the Fifth Amendment’s double jeopardy clause.

See Supreme Court to weigh overturning separate-sovereigns doctrine in Gamble v. United States for more on arguments for and against Gamble v. United States and the dual sovereignty doctrine.

Justice Samuel Alito delivered the Court’s opinion. Justice Clarence Thomas filed a concurring opinion and Justices Ruth Bader Ginsburg and Neil Gorsuch filed dissenting opinions.

The decision argues that dual sovereignty is not an exception to protection from double jeopardy because the language of the Fifth Amendment “protects individuals from being twice put in jeopardy for the same offence, not for the same conducts or actions.” Alito writes, “as originally understood, then, an ‘offence’ is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two offences.”

The Court’s opinion goes on to discuss the concern that overturning dual sovereignty would result in the United States no longer having the legal authority to prosecute people who have been prosecuted for the same offence in other sovereign countries.

Citing late-colonial American objection to the so-called Murderers’ Act of 1751 Alito argues that, “on Gamble’s reading, the same Founders who quite literally revolted against the use of acquittals abroad to bar criminal prosecutions here would soon give us an Amendment allowing foreign acquittals to spare domestic criminals. We doubt it.”

“This principle comes into still sharper relief when we consider a prosecution in this country for crimes committed abroad. If, as Gamble suggests, only one sovereign may prosecute for a single act, no American court–state or federal–could prosecute conduct already tried in a foreign court.”

SCOTUS opinion in Gamble v. United States

The decision also argues that Gamble’s arguments are not compelling enough to overturn 170 years of precedents set by previous Supreme Court decisions. “All told, this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns’ laws–much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years.”

In his concurring opinion, Justice Thomas admits to initial skepticism of the dual sovereignty doctrine, but was swayed by the historical record. He makes note that “we are not entitled to interpret the Constitution to align it with our personal sensibilities about ‘unjust’ prosecutions.” He adds in parenthesis, “While the growing number of criminal offenses in our statute books may be cause for concern, no one should expect (or want) judges to revise the Constitution to address every social problem they happen to perceive.”

The majority of his opinion relates to the Court’s reliance on the doctrine of stare decisis, in which the Court typically upholds previous Supreme Court rulings as legal precedent. He writes “in my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions–meaning decisions outside the realm of permissible interpretation–over the text of the Constitution and other duly enacted federal law.”

In her dissenting opinion, Justice Ginsburg cites previous Supreme Court decisions that upheld dual sovereignty and writes, “I would not cling to those ill-advised decisions.”

She argues against the concern over crimes committed and prosecuted abroad. “Gamble was convicted in both Alabama and the United States, jurisdictions that are not foreign to each other.” She goes on to explain “in the system established by the Federal Constitution…’ultimate sovereignty’ resides in the governed…Insofar as a crime offends the ‘peace and dignity’ of a sovereign,…that ‘sovereign’ is the people, the ‘original fountain of all legitimate authority…States may be separate, but their populations are part of the people composing the United States.”

Justice Ginsburg also addresses the reliance on stare decisis, writing it is not an “inexorable command….Our adherence to precedent is weakest in cases ‘concerning procedural rules that implicate fundamental constitutional protections.'”

She goes on to write “the expansion of federal criminal law has exacerbated the problems created by the separate-sovereigns doctrine. Ill effects of the doctrine might once have been tempered by the limited overlap between federal and state criminal law…In the last century, however, federal criminal law has been extended pervasively into areas once left to the States.”

“This situation might be less troublesome if successive prosecutions occurred only in ‘instances of peculiar enormity, or where the public safety demanded extraordinary rigor’…The run-of-the-mill felon in-possession charges Gamble encountered indicate that, in practice, successive prosecutions are not limited to exceptional circumstances.”

Justice Ginsburg, dissenting opinion, Gamble v. United States.

Ginsburg concludes her dissent by pointing out the dual sovereign doctrine has been criticized by “members of the bench, bar, and academy.” She writes “different parts of the ‘WHOLE’ United States should not be positioned to prosecute a defendant a second time for the same offense. I would reverse Gamble’s federal conviction.”

Justice Gorsuch argues in his dissent, “‘separate sovereigns exception’ to the bar against double jeopardy finds no meaningful support in the text of the Constitution, it’s original public meaning, structure, or history. Instead, the Constitution promises all Americans that they will never suffer double jeopardy. I would enforce that guarantee.”

He also disagrees with the idea that an offence against the laws of separate sovereigns is two offenses. He cites Blockburger v. United States to argue “if two laws demand proof of the same facts to secure a conviction, they constitute a single offense under our Constitution and a second trial is forbidden.”

“Tellingly, no one before us doubts that if either the federal government or Alabama had prosecuted Mr. Gamble twice on these facts and in this manner, it surely would have violated the Constitution.”

Justice Gorsuch, dissenting opinion, Gamble v. United States

He argues that assigning different aspects of power to the federal and state governments is meant to limit governmental power rather than multiply it. The dual sovereign doctrine goes against this premise as it allows the federal and state governments to do together what neither can do alone, that is, prosecute someone for the same offense.

Gorsuch also addresses stare decisis, arguing it should not be used to ignore precedents that can’t be supported by the Constitution. He offers examples of historic cases previously used as precedents that have been overturned, including Korematsu v. United States.

He writes, “with the text, principles of federalism, and history now arrayed against it, the government is left to suggest that we should retain the separate sovereigns exception under the doctrine of stare decisis. But if that’s the real basis for today’s result, let’s at least acknowledge this: By all appearances, the Constitution, as originally adopted and understood did not allow successive state and federal prosecutions for the same offense, yet the government wants this Court to tolerate the practice anyway.”

Like Ginsburg, Gorsuch also expresses concern over the increasing number of Federal crimes on the books and the resulting effect on the use of the dual sovereign doctrine. “In the era when the separate sovereigns exception first emerged, the federal criminal code was new, thin, modest and restrained. Today, it can make none of those boasts…If long ago the Court could have thought ‘the benignant spirit’ of prosecutors rather than unwavering enforcement of the Constitution sufficient protection against the threat of double prosecutions, it’s unclear how we still might.”

He concludes, “the separate sovereigns exception was wrong when it was invented, and it remains wrong today.”

Unfortunately, as Justice Ginsburg pointed out, this doctrine isn’t relegated to use in unusual and extreme cases. And it isn’t difficult to imagine it will become more and more common to see cases prosecuted under this doctrine as the number of crimes prosecutable under Federal law grows. It can happen to people who were acquitted in their original trial. It can happen years after the original trial and time served. It can happen when original charges are dropped.

The end result is more loss of rights, longer prison sentences, a growing prison population, and traumatic disruption, even destruction, of the lives of those charged and their families.

“When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is ‘the poor and the weak’ and the unpopular and controversial, who suffer first–and there is nothing to stop them from being the last.”

Justice Gorsuch, dissenting opinion, Gamble v. United States.

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Another Whistleblower Indicted

Another Whistleblower Indicted

The Department of Justice has unsealed an indictment this morning for Daniel Everette Hale, of Nashville, Tennessee.  Hale was enlisted in the US Air Force from 2009-2013.  He became a Language Analyst, and was assigned to work at the National Security Agency from December 2011 through May 2013.

He served as an Intelligence Analyst in Afghanistan for a Department of Defense Joint Special Operations Task Force from March 2012 through August 2012.  Hale held a Top Secret/Sensitive Compartmented Information security clearance.  After leaving the Air Force, Hale worked for a defense contractor, Leidos.

Hale is charged with five counts related to obtaining classified information and giving classified information to an unnamed reporter.  According to the indictment, this information was then published by the reporter on an Online news outlet, as well as in a book written by the reporter.

The unnamed reporter Hale is alleged to have given information to is likely Jeremy Scahill of The Intercept.  Scahill and the Intercept published The Drone Papers in 2015 based on a cache of classified documents obtained by the Intercept.  Scahill also wrote the book The Assassination Complex which was published in 2017.

Hale described having his home searched in 2014 by the FBI in the documentary National Bird.  He was informed at that time he was under investigation for espionage and he states in National Bird that he would “probably get charged with a crime” and would “have to fight to stay out of prison.”

Hale’s attorney, Jesselyn Raddack, is quoted in The Washington Post as saying “the allegations against Hale are allegations of whistleblowing.  The Intercept’s reporting on the US government’s secretive drone assassination program shed much needed light on a lethal program in dire need of more oversight.”

No details are given in the indictment as to how Hale ended up under investigation for leaking classified material.  In video, Hale can be seen sitting with Scahill during a presentation at a book store on June 8, 2013.  The indictment states that on or about June 8, 2013, “Hale sat next to the Reporter at a public event at the Bookstore to promote the Reporter’s book.”  According to the indictment, this occurred before Hale leaked any documents to The Intercept.

Hale is not the first person known to face charges after leaking information to The Intercept.  Reality Winner was sentenced to five years and three months for leaking a classified report to The Intercept regarding Russian hacking of election systems.  Reporters for The Intercept sought confirmation the report was authentic from a defense contractor who informed authorities about it and turned over identifying numbers from the report that revealed Winner as the source of the leak.

Terry Albury, a former FBI agent, was sentenced to four years in prison in 2018 for sharing classified information, likely with The Intercept, according to the Washington Post.  He may have been the source of The Intercept’s series of reports entitled The FBI’s Secret Rules.

 

Image courtesy of Pixabay

Federal prosecutors to appeal dismissal of charges in Nevada Bundy case

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According to court documents filed yesterday in the US Court of Appeals for the ninth circuit, federal prosecutors have been authorized to appeal the dismissal of charges in the Nevada Bundy case.  The charges against Cliven, Ryan and Ammon Bundy and Ryan Payne were dismissed with prejudice by Judge Gloria Navarro on January 8, 2018 due to Brady violations by the prosecutors.

The document filed yesterday is a request by the prosecution for a 14-day delay in filing its opening brief for an appeal.  The document states “undersigned counsel advises the Court and the defendants that the review process is complete and the Solicitor General has authorized the government’s appeal.”

Prosecutors filed a motion requesting the Court reconsider its orders to dismiss the charges on February 8, 2018.  The district court denied that motion on July 3, 2018 and the US Attorney’s office reported that decision to the appellate section of the Department of Justice’s criminal division.  The US Solicitor General then began the process of deciding whether to appeal the decision, according to court documents.

Cliven Bundy’s lawyer, Larry Klayman, has filed motions opposing the extension of time.  He writes, “…any continuing appeal would have no factual or legal bases to succeed and thus be wholly frivolous and is intended only to continue to harass, vindictively inflict more severe emotional distress upon and financially ruin…” Cliven Bundy and his co-defendants.

The prosecution states in its request for delay that it will file its opening brief on or before February 6, 2019.

Supreme Court to weigh overturning separate-sovereigns doctrine in Gamble v. United States

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Katie Aguilera

Tomorrow, December 6, 2018, the Supreme Court of the United States will hear arguments in a case that has the potential to overturn the long-standing legal doctrine of separate-sovereigns, or dual sovereignty.  This doctrine holds that the States’ governments and the Federal government are separate sovereign entities and can therefore prosecute a defendant for the same offense without violating the fifth amendment’s double jeopardy clause.  The case the court will hear tomorrow is Gamble v. United States.

Terance Martez Gamble, according to court documents, was convicted of second-degree robbery on September 4, 2008, in Alabama state court.  Seven years later, he was stopped while driving by a Mobile Police Department officer because one of his head lights was out.  The officer smelled marijuana and searched Gamble’s vehicle, finding marijuana, a digital scale, and a handgun.

On April 28, 2016, Gamble was indicted by a federal grand jury for possessing a firearm by a felon.  On May 27, 2016, Gamble was convicted in Alabama state court of being a prohibited person in possession of a firearm.  Both the federal indictment and the Alabama state conviction were for the same incident.

Gamble “moved to dismiss his federal indictment on double jeopardy grounds. The district court denied the motion, concluding that petitioner’s argument was foreclosed by binding precedent in this Court and the Eleventh Circuit holding that the federal government is a separate sovereign from an individual state and that the Double Jeopardy Clause does not prohibit separate prosecutions by separate sovereigns.”

Gamble pleaded guilty to the federal charge as part of a plea agreement, but he reserved the right to appeal the denial of his motion to dismiss on the grounds of double jeopardy.  He was sentenced for the federal charge to 46 months in prison that would run concurrently with the sentence he received from Alabama state.

This is not the first time the Supreme Court has heard arguments in favor of overturning the separate-sovereigns doctrine.  In fact, according to the government’s brief in opposition, the Supreme Court has upheld the doctrine 20 times in the years between 1852 and 1959.

Many organizations have filed briefs in support of Gamble or in support of the United States in this case.   These range from the ACLU, military legal divisions, criminal defense lawyers, and Utah Senator Orrin Hatch in support of Gamble, to the National Indigenous Women’s Resource Center, National Congress of American Indians, National Association of Counties, National League of Cities, National District Attorneys Association, National Sheriff’s Association and more in support of the government.  All the documents can be found here.

The National Indigenous Women’s Resource Center and National Congress of American Indians argue in their brief that “overturning the Court’s long-standing precedent regarding the dual sovereign doctrine, which has allowed both tribal and the federal governments to prosecute for violations of their respective criminal laws, would have significant ramifications in Indian country. Not only would it undermine core principles of local control for criminal justice, it would preclude the effective prosecution of those who commit serious violent crimes against Native women and children.”

According to their brief, the Indian Civil Rights Act prohibits Tribal Courts from imposing sentences longer than a year for any criminal offense, with some exceptions where certain requirements are met and the sentence can be lengthened to three years.  This means there is often a reliance on the federal government to prosecute defendants in order for longer sentences to be imposed on them, providing greater protection for their victims.

If the Supreme Court rules in favor of Gamble and the separate-sovereigns doctrine is overturned, Tribal Nations will be required to “choose whether to prosecute a case before conclusion of the investigation that determines whether the U.S. Attorney will prosecute.”  If the Tribal courts decide to prosecute, the federal government will then be unable to charge the defendant for the same crime.  If they opt not to prosecute in hopes the federal government will, it’s possible the defendant will never face charges if the federal investigation doesn’t result in an indictment.

The brief argues “this Court should preserve the ‘separate sovereigns’ doctrine as applied to prosecution by both tribal governments and the federal government, either by rejecting Petitioner’s [Gamble] arguments in their entirety, or by making it clear that this Court’s decision in this case should not be read as addressing the unique considerations presented in the context of dual federal and tribal prosecution.”

According to this November 29, 2018 Argument Preview by Amy L. Howe, a ruling in favor of Gamble “could have widespread impact that could extend to prosecutions by Robert Mueller, the special counsel appointed to investigate Russian efforts to influence the 2016 election.”

The article goes on to state that the government warns of a variety of problems that would arise if the Supreme Court overturns the separate-sovereigns doctrine.  Howe writes, “under Gamble’s interpretation, the U.S. or a state government would not be able to prosecute a foreign terrorist if a foreign government had also tried him.”  Additionally, if the doctrine is overturned, it could “lead to a flood of challenges by inmates convicted by two different sovereigns who want to overturn the second conviction, even if it became final long ago.”

Senator Orrin Hatch (R-UT) argues in support of overturning the separate-sovereigns doctrine in a lengthy brief. In this brief it states “when this Court last reaffirmed the ‘dual sovereignty’ exception to the Fifth Amendment’s guarantee against successive prosecutions for the same crime, it did so to preserve the balance of power in our federalist system.  As a matter of both constitutional theory and historical practice, the states bore primary responsibility for defining and prosecuting general crime, with federal criminal law focused on relatively narrow and specific areas of federal interest.

But the balance between state and federal power to define and punish crime has shifted massively since the vitality of the dual sovereignty doctrine was last before this Court.  The federalization of criminal law over the intervening decades has given federal prosecutors the ability to bring coordinate federal charges for a wide array of conduct…In this hyperfederalized context, the federalist underpinnings of this Court’s prior dual-sovereignty decisions no longer reflect the reality of federal-state relations, and may well undermine, rather than support, an appropriate division of power.”

The ACLU makes a similar argument, noting that according to The Court and Overcriminalization by Michael Pierce, the United States criminal code contains 27,000 pages of federal criminal laws.  This was not the case when the Supreme Court upheld the separate-sovereigns doctrine in the past.  The increase in federal criminal laws greatly increases the risk of what was previously considered a rare occurrence–when  charges are brought against a defendant by a state and the federal government for the same offense.  This, the ACLU argues, is one of numerous important reason to do away with the separate-sovereigns doctrine.

The U.S. Navy-Marine Corps Appellate Defense Division, U.S. Coast Guard Office of Member Advocacy and Legal Assistance—Appellate Defense, U.S. Air Force Appellate Defense Division, and the U.S. Army Defense Appellate Division filed a brief of Amici curiae in support of overturning the separate-sovereigns doctrine.  In it, they state:

“Amici ask this Court to overrule the separate-sovereigns exception so those who serve our country receive the proper Double Jeopardy protections of the Constitution, our basic charter of rights which they took an oath to defend with their lives.”

They go on to argue “…the separate-sovereigns exception allows the military to overrule the verdict of a state jury, with its jurors selected from a representative cross-section of the community, by meeting a lesser standard:  currently a two-thirds majority vote for conviction by a panel of military members, each senior to the defendant and picked by the defendant’s commander.”

The timing of this case is notable considering the potential effects to Robert Mueller’s investigation.  It has been speculated that people convicted of federal crimes as a result of Mueller’s investigation could receive pardons from President Trump and without the separate-sovereign doctrine, the States wouldn’t be able to bring charges against those people.  It has even been suggested that the push to get Judge Brett Kavanaugh confirmed and seated on the Supreme Court was to ensure a majority vote in favor of overturning the separate-sovereigns doctrine for that very reason.

However, this October 4, 2018 Slate article by Teri Kanefield and Jed Shugarman explains how Gamble v. United States is unlikely to have much, if any, effect on Mueller’s investigation.  They write, “in theory, a Trump associate could plead guilty to a federal crime, receive a pardon, and Gamble could protect him from a state prosecution.  In reality, special counsel Robert Mueller seems to have already strategized around this problem.

All such hypotheticals aside, though, double jeopardy is a real problem affecting the rights of ordinary citizens.”

Ordinary citizens such as Terance Gamble, Benjamin Cunha, and countless others, who have faced charges from both state and federal prosecutors for the same offense.  These convictions result in longer prison sentences and contribute to the mass incarceration crisis this nation faces.

Full pardons for Dwight and Steven Hammond

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President Trump has granted full pardons for Dwight and Steven Hammond, Oregon ranchers imprisoned for arson on federal land.

The Hammonds pleaded guilty in 2012 to two counts of arson on federal land which, according to mandatory minimum sentencing guidelines, should have resulted in five year prison sentences.  The judge in the case however, decided that a five year sentence would “result in a sentence which is grossly disproportionate to the severity of the offenses here,” and instead sentenced Dwight Hammond to three months in prison and Steven Hammond to one year and one day.

The federal government appealed the sentences.  The Ninth Circuit of Appeals remanded the case back to the Oregon US District Court where the original sentence was overturned and the Hammonds were ordered to return to prison to serve the remainder of a five-year sentence.

The Hammonds’ story gained national attention after Ammon and Ryan Bundy and supporters occupied the Malheur National Wildlife Refuge in Harney County, Oregon  The armed occupation began after a support rally for the Hammonds took place in Burns, Oregon.

The Bundys initially claimed they came to Harney County to protest the Hammonds’ return to federal prison and in fact they had urged Dwight and Steven Hammond not to turn themselves in.  The Hammonds did not support the occupation however, and willingly returned to prison in January 2016.

Oregon Representative Greg Walden (R) recently asked President Trump to pardon the Hammonds.

Bathroom graffiti inspires juror in J20 trial to “Google jury nullification.”

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Katie Aguilera

On Thursday, May 31, 2018, a juror sent a note to Judge Kimberley Knowles in a Washington D.C. superior court room informing Knowles that she had googled jury nullification after seeing the words “Google jury nullification” written in a bathroom stall at the courthouse.  She googled it, read about it, told the other jurors about it and then informed the judge of her actions.

This trial is the second of many planned for protesters arrested on January 20, 2017 during protests in Washington D.C. in which police officers were injured, windows were broken, and a limousine was destroyed.  Four defendants who allegedly participated in property damage that occurred during the Inauguration Day protests are currently on trial.  They are Michael Basillas, Seth Cadman, Anthony Felice, and Cathseigh Webber.

Six defendants faced felony charges in November 2017 but the jury in that trial acquitted them of all charges December 21, 2017.  In that trial, the prosecution made no effort to prove that the six defendants were guilty of any of the property damage, stating instead that “though there is no evidence the defendants caused any of the damage directly, the government considers the entire group of protesters to be responsible.”

The admission by the juror of googling jury nullification in this current trial comes after several major developments involving all the related cases, which are frequently referred to as the J20 cases.  On May 23, 2018, Chief Judge Robert Morin ruled “that the US Attorney had illegally withheld evidence from protester defendants.”  In what constitutes a Brady violation, the judge agreed with the defense that the prosecution had withheld potentially exculpatory evidence, specifically the fact that a highly questionable video created by Project Veritas and used as evidence against all the accused protesters was heavily edited.

The prosecution had previously declared that there was only very limited editing to hide the identity of the person filming the video and the identity of an undercover officer attending the meeting the video filmed.  However, it was later revealed that there was significant editing to the video, with several important parts having been removed.

According to a motion for sanctions and dismissal filed by the defense in a related trial scheduled to begin June 4, 2018, a portion of video that was edited out actually showed an undercover officer stating, “I was talking with one of the organizers from the IWW [Industrial Workers of the World] and I don’t think they know anything about any of the upper echelon stuff.”  The defense argues the following in that motion:

“This is exculpatory evidence to the defense. The government plans to argue that Mr. Petrohilos and everyone else at that meeting were intending to plan a violent protest. What better exculpatory evidence for the Defense than the words from the person sent to capture a nefarious meeting stating right after the meeting, ‘I don’t think they know anything’. This evidence is clearly exculpatory and but for the Court compelling its production, Defense would have never received it.”

Such Brady violations could arguably be considered cause for a mistrial for these cases but Judge Knowles has opted not to do so in this trial.  Numerous other cases have been dismissed and felony charges against some defendants have been dropped after Judge Morin’s ruling.

On May 31, 2018, Chief Judge Morin also ruled “that the US Attorney had misled him by not admitting the existence of 69 additional pieces of evidence provided by the far-right “entrapment” group Project Veritas” according to Unicorn Riot, an independent website that has covered these cases extensively.

And then came the admission of the bathroom graffiti inspired google search the day before the case went into jury deliberation.  Neither the defense or the prosecution protested this development and the judge proceeded with the scheduled deliberation.  Jury deliberation is expected to continue on Monday, June 4, 2018.

These trials present an interesting opportunity to exercise the right of jury nullification.  As Ryan J. Reilly, Huffington Post senior justice reporter, tweeted on May 31, 2018: “Jury nullification would be particularly powerful in this trial, as government alleges that three of the defendants engaged in some form of destruction. Unlike first case, jurors might want to convict on misdemeanors but not make them felons or expose them to lengthy sentences.”

This is a good reminder that jury nullification has been used in the past to acquit people charged for protest and dissent.  I wrote back in 2016 that “in today’s highly charged climate of political activism against war, police brutality, etcetera, combined with the prevalence of mandatory minimum sentences and increasingly over-reaching laws, the importance of knowing and understanding the right of US jurors to practice jury nullification cannot be understated.  It is critical that US citizens remember that the United States was founded on the principle of government that serves the people. A jury of peers, fully apprised of their rights and responsibilities as jurors, is one of the greatest protections of that principle.”

The importance of these cases should not be ignored.  As I wrote on December 8, 2017, regarding the first J20 trial, “this idea of collective liability is what makes this trial so important, and all Americans should be paying attention.  The mere act of charging so many, with the possibility of such severe punishment, threatens to stifle legitimate protest and first amendment activity.  If exercising one’s right to peacefully protest comes with the risk of felony charges for the criminal behavior of others, many will opt to stay home.”

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Picture courtesy of Pixabay.

Meanwhile, In Yemen…

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Katie Aguilera

It is being reported that at least 33 people have been killed in Yemen as the result of Saudi-led coalition strikes that hit a wedding on Sunday, April 22, 2018.  This comes just days after 20 civilians were killed when the vehicle they were traveling in was hit by another Saudi-led coalition airstrike.

But that’s okay, it wasn’t chemical-laden weapons that killed these civilians.  These were weapons likely sold to the Saudis by the US and the UK.  So don’t worry about it when Reuters reports:

“The head of Al Jumhouri hospital in Hajjah told Reuters by telephone that the hospital had received 40 bodies, most of them torn to pieces, and that 46 people had been injured, including 30 children, in air strikes that hit a wedding gathering.”

Or this:

“The attack hit a car transporting 20 passengers south of Taiz province, locals told Reuters. Six bodies had been identified but the rest were charred beyond recognition, they added.”

Let’s just continue to allow the US and UK to sell Saudi Arabia weapons.  Let’s continue to refuel their warplanes so they can keep dropping those bombs.  I mean, just think of the profits.  And, let’s continue to help the Saudi-led coalition select its targets because clearly that’s working.

Don’t worry that the United Nations Secretary General Antonio Guterras has stated that Yemen is the world’s worst humanitarian crisis.  “As the conflict enters its fourth year, more than 22 million people—three quarters of the population—need humanitarian aid and protection.”  Don’t worry about the starvation, the cholera and diarrhea, the six children under the age of five that die from preventable causes every hour.  Just don’t pay any attention at all to what Gutteras has to say.

“Civilians have been facing indiscriminate attacks, bombing, snipers, unexploded ordnance, cross-fire, kidnapping, rape and arbitrary detention.”

But that’s okay.  It’s our ally committing many of these atrocities after all.  So, don’t worry about it.

Image courtesy of pixabay.com

 

Defense files motion requesting the exclusion of expert reports and testimony in Astarita case

Katie Aguilera

Lawyers for FBI agent W. Joseph Astarita have filed a motion to exclude the expert reports and testimony of several witnesses for the prosecution in Astarita’s case.  Astarita is accused of firing two shots at Robert ‘LaVoy’ Finicum on January 26, 2016 and subsequently lying about it.   The two shots did not hit Finicum, but one struck the roof of Finicum’s truck.

The shooting occurred at a road block set up to stop and arrest leaders of the occupation of the Malheur National Wildlife Refuge as they traveled along Highway 395 to John Day, Oregon.  Finicum was shot and killed by Oregon State Police (OSP) officers at the road block after exiting his vehicle and appearing to reach for his pocket.  An investigation of the shooting concluded there were two shots fired during the stop that were unaccounted for.

The prosecution’s case against Astarita relies in large part on the 3D reconstructions and diagrams created by several expert witnesses that concluded only Astarita was in position to fire the two shots that are unaccounted for.

In the defense motion, filed April 4, 2018, it is argued, “because the government has no photographic, video, ballistic, or eyewitness proof that Special Agent Astarita fired his weapon, this assumption [of his firing the two shots] rests entirely on the proposed testimony of the so-called experts.”

The reason no such video exists is because the FBI Hostage Rescue Team requested the OSP officers not wear body cameras during the road block.  OSP officers normally wear body cameras when deployed.  Additionally, the shell casings from the two shots, as well as casings from some of the shots fired by OSP officers, were missing from the scene.

The defense goes on to question the accuracy of the experts’ conclusions, the expertise of the witnesses, and the methods used in their investigations.  It states, “the Court cannot allow experts to present conclusions on such important issues in a criminal trial without ample assurances of reliability.  The government and its purported experts have failed to provide such assurances here…”

Astarita has pleaded not guilty to three counts of making a false statement and two counts of obstruction of justice.  A hearing to determine what experts’ testimony will be allowed in the trial is scheduled for May 21, 2018.

Prosecutors have filed a motion requesting judge to reconsider decision to dismiss with prejudice the charges in Bundy case

Katie Aguilera

On February 7, 2018, federal prosecutors filed a motion requesting that the Court reconsider its orders to dismiss with prejudice the superseding indictment against Cliven, Ryan, and Ammon Bundy, and Ryan Payne.

According to the 29-page motion, “the Court erred when it dismissed the indictment with prejudice on the ground that the Government failed to disclose information that could be used only to support non-cognizable and unsupportable defenses, or arguably rebut three alleged overt acts.”  Additionally, it argues, “to the extent the Court’s dismissal with prejudice is predicated on the materiality of the late-disclosed evidence to defendant’s theories of ‘self-defense, provocation, and intimidation,’ it is in error.  Because these theories are not cognizable on the undisputed facts, they cannot form the basis of a Brady violation.”

The prosecution suggests that rather than dismissing all charges, dismissing the counts related to the Court’s interpretation of Brady violations would be a less drastic remedy.  They argue that the dismissal with prejudice “has major ramifications for all public lands law enforcement officers,” and would “encourage the defendants, their supporters, and the public to disrespect the law and the lawful orders of the courts.”

The case against the Bundys and Ryan Payne ended in a mistrial December 20, 2017, and Judge Gloria Navarro dismissed the case with prejudice on January 8, 2018.

In a separate filing, the prosecution asked to dismiss with prejudice all counts in the superseding indictment against the four remaining defendants facing trial for the April, 2014 Nevada standoff.  Those four are Dave and Mel Bundy, Joseph O’Shaughnessy, and Jason Woods.

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