LOCAL NEWS: Judge dismisses charges in Port of Olympia antiwar trial
Written by Mark Jensen
Thursday, 14 June 2007
Citing "gross negligence" on the part of prosecutors in a second attempt at a trial, Thurston County District Court Judge Susan Dubuisson on Tuesday dismissed charges against sixteen defendants stemming from antiwar activities at the Port of Olympia thirteen months ago, the Olympian (Olympia, WA) reported Wednesday.[1] -- (The May 2006 episode was the beginning of the port militarization resistance movement, which has since spread to Tacoma, Grays Harbor [Aberdeen, WA], and Oakland.) -- "Prosecutors can appeal Dubuisson’s decision to dismiss the cases to Thurston County Superior Court," Christian Hill wrote, "but [Senior Deputy Prosecuting Attorney Jim] Powers said there has been no decision on how to proceed." -- A brief unsigned AP report on the case appeared in the London Guardian and the Washington Post on Thursday.[2] -- A longer AP report, also unsigned, appeared in several U.S. news outlets.[3] -- (Both AP reports appeared to derive from the Olympian report and provided no additional information.) -- Janet B, writing on the web site Olyblog, described in some detail the issues involved in the case and how the judge came to dismiss the charges.[4] -- A five-minute video of a post-dismissal celebration has been posted on YouTube.[5] -- The video concludes with the words "To Tacoma," where a number of the same defendants face charges stemming from port militarization resistance activities in March 2007; a pretrial hearing is scheduled for 1:30 p.m. on Wed., Jul. 18, in Tacoma Municipal Court (930 Tacoma Ave. South)....
OLYMPIA -- Citing “gross negligence” by Thurston County prosecutors, a judge on Tuesday dismissed charges against sixteen people accused of trespassing during a protest of a military shipment at the Port of Olympia last year.
The courtroom erupted in raucous celebration when Thurston County District Court Judge Susan Dubuisson announced the dismissal of the cases, after earlier in the 3 1/2-hour hearing saying she wasn’t inclined to do so.
“I make that decision with great regret,” she said.
The fact that prosecutors belatedly provided the co-defendants with new reports from Thurston County Sheriff’s deputies and detectives who were on the scene during the May 30 protest forced her hand, Dubuisson said.
As a result, she continued, the codefendants didn’t have enough time to pursue leads in the newly disclosed documents to prepare their defenses before the first of three trials was scheduled to begin next week.
SPEEDY TRIAL DATE LOOMED
All of the trials had to be under way by June 25, a schedule dictated by the co-defendants’ right to a speedy trial. Dubuisson had several options to remedy the conflict between ensuring a speedy trial and giving the co-defendants adequate time to prepare their defense, including delaying the trials.
She acknowledged that dismissal was an “extraordinary remedy” but ruled it was warranted because prosecutors’ belated delivery of the new reports was “gross negligence, not timely in a big way.”
Prosecutors had requested the reports from deputies and detectives who hadn’t filed a report in the lead-up to the co-defendants’ first trial. The proceeding ended in a mistrial in late March when prosecutors obtained confidential jury information from an unnamed source that had been obtained from an e-mail listserv maintained by the codefendants.
Without telling the co-defendants, the prosecutors had requested the reports from the sheriff’s office so both sides would have more information about the incident in preparation for the new trials, said Senior Deputy Prosecuting Attorney Jim Powers, the third prosecutor to become involved in the year-old case.
“Better to have information than to try to prepare in the dark,” Powers said during a later interview, and he added that the information in the reports would benefit the co-defendants’ cases.
Larry Hildes, an attorney representing five of the codefendants, charged that the real aim of the reports -- drafted nearly a year after the protest -- was to manufacture evidence and fill gaps to secure a conviction during the second trials, a claim Powers refuted.
“Once again, we’re in waters where we don’t know what else they got,” Hildes said, suggesting that more information pertinent to the case was being withheld.
The misdemeanor division received most of the ten reports -- including a year-old report that the sheriff’s office initially kept confidential -- on May 22, Powers said.
The co-defendants received the reports within the past few days.
EXPLANATION
Powers said the delivery had been delayed because of his efforts to get up to speed on the cases and discuss with the other two prosecutors how to proceed with the new trials.
“This is not a proportionate response to the problem,” he said of Dubuisson’s dismissal. “A more balanced solution would have been to continue the case and give them time to prepare.”
Co-defendant Phan Nguyen, who represented himself in court, said the case never should have come this far.
“It should have been over a long time ago,” he said outside the courthouse, where other co-defendants were celebrating with hugs and photos.
Their prosecution has been full of twists and turns that are unusual for a misdemeanor case.
The co-defendants were among 22 people arrested during the May 30 protest.
Demonstrators opposed using the local port to ship military equipment belonging to a Fort Lewis-based Stryker brigade to Iraq. They didn’t want the region having involvement in what they deem an illegal and immoral war.
The co-defendants were accused of sitting or lying in the port’s secured operations yard and ignoring requests by authorities to move back. Each was arrested and later charged with second-degree criminal trespass, a misdemeanor.
Last year, Dubuisson ruled that the co-defendants could argue to a jury that their law-breaking was necessary to stop the greater harm of the war. The prosecutor appealed the decision to Thurston County Superior Court, and the judge there overturned Dubuisson’s decision.
The co-defendants then were tried as a group in one of the largest single jury trials held in Thurston County District Court, which ended in the mistrial. During the trial, the co-defendants argued that the boundary of the operations yard was arbitrarily set by authorities and included property traditionally open to the public.
Prosecutors can appeal Dubuisson’s decision to dismiss the cases to Thurston County Superior Court, but Powers said there has been no decision on how to proceed.
Earlier during the court hearing, the co-defendants had asked the judge to dismiss the charges on other legal grounds and had requested that Dubuisson recuse herself because she was biased against the co-defendants. She declined.
RESTITUTION SOUGHT
The Port of Olympia had sought $29,000 in restitution from anyone convicted of trespassing because of two damaged gates, staff overtime, and associated cleanup, and overtime for law enforcement during the protests. The co-defendants were not accused of damaging port property.
Of the other six people arrested May 30, three accepted plea agreements -- two before the first trial and one during the trial.
A juvenile charged with trespassing was sent through a diversion program that leads to dismissal of the charge upon completion.
Two others were charged with riot without a firearm. Both stipulated to the facts in the police report and can have the charge dismissed if they have no contact with the port and no arrests for six months.
Dubuisson had issued a bench warrant for Nicholas Bland, one of the remaining co-defendants, after he failed to attend court hearings.
--Christian Hill covers the city of Lacey and military for the *Olympian*. He can be reached at 360-754-5427 or chill@theolympian.com.
OLYMPIA, Wash. -- Trespassing charges against sixteen people who protested military shipments to Iraq were dismissed because prosecutors waited too long to provide key reports to the defense.
The protesters were arrested while demonstrating against Army shipments from Fort Lewis through the Port of Olympia in May 2006.
Thurston County District Judge Susan A. Dubuisson said Tuesday that prosecutors provided sheriff's reports too late for the defense to use in court under the latest trial schedule.
"I make that decision with great regret," she said. Cheering erupted when she issued the ruling.
The judge acknowledged she could have postponed the trials but said dismissal was appropriate because what prosecutors had done amounted to gross negligence.
"This is not a proportionate response to the problem," Deputy Prosecutor James Powers said. "A more balanced solution would have been to continue the case and give them time to prepare."
Powers said the reports were late because he scrambled to prepare himself after becoming the third prosecutor assigned to the case. He said no decision had been made on whether to appeal the dismissal.
The cases against six other protesters also arrested were handled previously, and all avoided jail time.
3.
JUDGE DISMISSES CHARGES AGAINST 16 ANTI-WAR PROTESTERS IN OLYMPIA
OLYMPIA, Wash. -- Trespassing charges against 16 people who protested military shipments to Iraq have been dismissed because prosecutors waited too long to provide key reports to the defense.
Cheering erupted in Thurston County District Court as Judge Susan A. Dubuisson issued the ruling Tuesday during a 3½-hour hearing.
"I make that decision with great regret," she said.
The case involves 16 of the 22 Iraq war opponents who were arrested while demonstrating against Army shipments from Fort Lewis through the Port of Olympia on May 30, 2006.
Dubuisson said prosecutors provided new reports from sheriff's deputies who were present during the protests too late for the defense to examine and use in court under the latest trial schedule.
The first three cases had been set for trial next week, and all had to start by June 25 to satisfy speedy trial requirements.
The judge acknowledged she could have postponed the trials to allow more time for the defense to prepare but said dismissal was appropriate because what prosecutors had done amounted to gross negligence.
"This is not a proportionate response to the problem," Deputy Prosecutor James Powers said. "A more balanced solution would have been to continue the case and give them time to prepare."
He said no decision had been made on whether to appeal the dismissal to Superior Court.
Prosecutors requested the reports from deputies and detectives who hadn't filed reports in preparation for the defendants' first trial, which ended in a mistrial in late March after an unnamed source gave prosecutors jury information from a defense e-mail discussion list.
Lawrence A. Hildes, a lawyer for five defendants, accused prosecutors of trying to manufacture evidence and fill gaps to secure a conviction. Powers denied the accusation, saying the reports were intended to provide both sides with more information going into the trial.
Powers said he was late in getting the reports to the defense because he was scrambling to prepare himself after becoming the third prosecutor assigned to the case.
Last year, Dubuisson ruled that the defendants could argue to a jury that breaking the law was necessary to prevent a greater harm through continuation of the war, but her ruling was overturned in Superior Court.
Before the first trial ended in a mistrial, defendants argued that the no-trespassing boundary had been set arbitrarily and made off-limits some property that traditionally had been open to the public.
4.
CHARGES AGAINST OLYMPIA PORT PROTESTERS DISMISSED By Janet B
Judge Susan Dubuisson dismissed charges against sixteen defendants charged with criminal trespass during the antiwar demonstrations at the Port of Olympia in May 2006. Judge Dubuisson found that there had been "gross negligence" on the part of the prosecutor's office in the discovery process. Seven motions were heard at the pre-trial hearing today, including a motion to compel the prosecutor's office to disclose, in camera, the identity of their "informant," who passed along legal work product from a closed listserv used by the defendants and counsel. This dissemination of information regarding jurors, obtained by the prosecutor's office from this listserv, led to the earlier mistrial of the port protesters in late March of 2007.
Because the case has been dismissed, the in camera hearing with the judge, prosecutors, and representatives of the Thurston County Sheriff's office, tentatively scheduled for this week, will not occur, and the identity of the "informant" who leaked information from the defendants' listserv to the prosecutor's office will not be disclosed. Questions of prosecutorial misconduct have also been laid to rest with this dismissal.
Judge Dubuisson heard arguments for seven motions at the pretrial hearing which began at 3:00 p.m. At 4:30 p.m., she called a recess to deliberate. After the hearing resumed just before 5:00 p.m., she delivered her decisions on the motions, and argument ensued. It wasn't until after she decided to hold an in-camera hearing on the issue of the "informant," delaying her decision on the motion regarding prosecutorial misconduct, that the motion to dismiss was seriously entertained.
Defendants have had a great deal of difficulty in obtaining discovery all along; the most recent incident, which led to dismissal of charges, involved confidential memos from the Sheriff's office, one dated June 3, 2006, that were not received by defendants and their counsel until as late as June 8, 2007. In order to exercise their right to a speedy trial (within 90 days of the mistrial), defendants were scheduled to be tried prior to June 27th, giving them very little time to prepare. Judge Dubuisson declared that she was forced to choose between the defendants' right to a fair trial, and their right to a speedy trial.
Prosecutor Debra Eurich was replaced today by Jim Powers, who lost to Anne Hirsch in his November 2006 bid for a Thurston County Superior Court judgeship. Powers, who represented the prosecutor's office along with Steve Schraume, argued rather ineffectively against the motion for dismissal, stating that discovery delays were due to staff transitions. When defendants objected to submission of a witness list with almost three times as many witnesses listed as were named on the prosecution's witness list for the first trial, Powers argued that he "works that way," and the defendants probably wouldn't have bothered to interview witnesses, anyway.
The defense argued that a great deal of effort had been put into trying to interview witnesses. Phan Nguyen, who represented himself pro se, described an incident in which two sheriffs had refused to be interviewed by him without his going through the prosecutor's office, which obstructed his efforts. Judge Dubuisson remarked, while delivering her decision to dismiss, that the defendants, particularly the pro se defendants, had worked "aggressively" on their case, and she did not concur with Powers' argument that the defendants wouldn't have bothered to interview witnesses even if they'd been given more time. She did, however, also express regret that she had to take the action of dismissing charges.
The defendants and their supporters reacted jubilantly when Judge Dubuisson announced that she was dismissing the charges (See photos [http://www.flickr.com/photos/88709992@N00/?saved=1] on my flickr.com site). The prosecutors looked appropriately downcast, but as they lugged away their boxes of files on dolleys, I had to wonder to myself . . . losing this case isn't exactly good for their careers, but what might have come to light if they had been compelled to reveal the details of their obtaining confidential emails?
5.
PROSECUTORIAL MISCONDUCT -- VICTORY IN OLYMPIA! By 143tbone
