This is a story from the Portland Mercury that says "Thanks to a
potentially far-reaching ruling by Multnomah County Judge Cheryl
Albrecht, a whole mess of Occupy Portland-related misdemeanor cases
that had been busted down to time- and cash-saving citations, or
"violations," may now have to be prosecuted as vigorously as any other
Instead of the usual routine for so-called violation trials—hearings
without a defense attorney, in front of a judge, with the threat of
fine, but not jail time or probation—the Occupy defendants covered by
Albrecht's ruling will now be entitled to jury trials and public
defenders. And the burden of proof will rise to "beyond a reasonable
The ruling, issued late Monday, came in response to a motion by
attorney Bear Wilner-Nugent, the lead attorney on a case with some 20
occupiers named as defendants. It's technically binding only on the
current case before Albrecht, but it could wind up affecting dozens of
other non-Occupy cases, gleeful defense attorneys tell the
Mercury—under-cutting a reliable budget-stretching strategy by the
Multnomah County District Attorney's office and maybe even changing
the way officers interact with protesters.
"They're going to have to give our clients court-appointed lawyers,"
Wilner-Nugent says, "or they're going to have to dismiss the cases."
Jeff Howes, the senior deputy district attorney in charge of
misdemeanor cases, didn't return a miessage seeking comment about
Albrecht's ruling. Deputy District Attorney Brian Lowney said only
that "we're looking it over, and we're considering our response."
Violation cases have long earned the ire of criminal justice advocates
who see them as an easy, due-process-skirting path for coaxing guilty
pleas from overwhelmed defendants, sometimes in wobbly or flawed
cases, who may not realize that their get-out-of-jail-free card
doesn't still mean a misdemeanor conviction won't show up on a
"The reason is to save money," says public defender Chris O'Connor, or
help along "weaker cases" or cases with "more sympathetic defendants
where there's evidenciary problems." He added that "the net result is
people plead guilty, people don't challenge certain things, because
they don't have legal counsel to point out other defense strategies or
other flaws in the state's cases."
Wilner-Nugent suspects the DA's office won't be able to appeal the
ruling and added that he expects other attorneys arguing violation
cases in front of other judges to invoke the same legal logic as laid
out by Albrecht. One hitch, though, is that the ruling only affects
violations that originally were pursued as misdemeanors by police,
complete with arrests, and were later reduced by prosecutors.
"If I were the city attorney's office, I'd strongly advise the mayor
to consider ordering the Portland Police Bureau to issue citations
only for violation cases," he said—suggesting they might stop
arresting protesters and booking them on misdemeanor charges and just
give them tickets in the first place. "The problem is they want to
maintain arrests as a tool to disrupt the freedom of expression."
Wilner-Nugent, doing some napkin calculations, said 160-odd Occupy
cases alone could rack up some "$100,000 in defense costs alone, and
that has nothing to do with prosecution costs."
O'Connor said earlier this afternoon he was already itching to invoke
Albrecht's ruling in a case unrelated to Occupy.
"Why is this important?" he said. "Because when you get arrested for
some stupid misdemeanor, on the fringes of some protest, you're
actually going to get a jury and you're actually going to get legal
counsel helping you, even if the state tries to avoid that by reducing
the case to a ticket. It's going to look like what you think it looks
like on television."
Not that every defendant who takes advantage of his or her full rights
will wind up winning. As O'Connor points out: "It could cut the other
way... You could still lose."
But more defendants, at least, might have a fighting chance."