Will Occupy activists get a fair trial?

Matthew Denney, who was arrested with dozens of others during Occupy Portland activities last fall, details the dirty tricks that prosecutors are employing against them.

OVER 70 criminal cases against Occupy Portland activists remain in limbo following continued attempts by the Multnomah County District Attorney's office to deprive defendants of the right to a jury trial and court-appointed legal counsel.

Over the past several months, prosecutors have specifically sought to avoid allowing defendants to exercise such rights by repeatedly changing the charges filed against them.

At a hearing held April 30, the head of Multnomah County's misdemeanor trial unit, Jeff Howes, admitted under cross-examination that charges against several Occupy Portland defendants were dismissed and refiled as traffic violations in order to avoid the terms of a February ruling by Multnomah County District Judge Cheryl Albrecht. That ruling had given court-appointed counsel and the right to a jury trial to defendants who were initially arrested and charged with Class A or B misdemeanors, later refiled as Class A violations.

The cases in question cover several rounds of arrests stretching back to October 2011. In most cases, activists were arrested for peacefully occupying a public space or for participating in a peaceful protest. Many arrested activists--myself included--were initially charged with multiple misdemeanors upon arrest, such as disorderly conduct, interfering with a police officer or criminal trespass. Those charges were then reduced to misdemeanors charged as violations--and in many cases, multiple charges were reduced to one.

The legal saga for arrested activists began when the vast majority of arrestees chose to "plead out" of community court; pleading not guilty and declining the small sentences of community service that were offered in exchange for a guilty plea.

Volunteer attorneys organized by the Portland branch of the National Lawyers Guild and the ELK Law Krewe stepped in shortly after arraignments began to provide legal services to arrested activists, and were instrumental in securing the February ruling by Judge Albrecht. They have continued to win other victories, such as an April order requiring the release of Portland police documents relating to Occupy Portland, including documents containing reports from undercover officers or informants.

However, the April 30 hearing--held in front of dozens of Occupy defendants and supporters--highlighted the many legal obstacles that stand in the way of full legal rights for Occupy Portland activists.

First, Judge Albrecht's February ruling did not extend full legal rights to arrested activists who were initially charged with Class C misdemeanors, leaving many without counsel, despite the fact that they were arrested and detained in an identical fashion to those initially charged with Class A and B crimes. Many defendants, such as one who testified before the court, are low-income and would otherwise qualify for court-appointed counsel.

Secondly, the District Attorney has sought to eliminate those rights for everyone covered in the February ruling through the wholesale dismissal of Class A and B charges and the re-filing of those charges as "traffic violations" not covered by the ruling.

Finally, arguments to dismiss the charges under the broad free speech rights conferred by the U.S. and Oregon constitutions will not be heard until at least August due to a request for a delay by the District Attorney's office.

Judge Albrecht will issue a ruling on May 21 regarding the arguments raised on April 30. She will be deciding on whether the new "traffic violation" charges should be dismissed on the grounds of prosecutorial misconduct, and whether or not all defendants should be entitled to legal counsel and a jury trial. Her ruling will be absolutely essential for the defense of Occupy Portland activists; both the right to be heard by an impartial jury of our peers and adequate legal representation are minimal requirements for justice.

Our legal struggles set a precedent for those facing future charges as well. During May Day demonstrations, Portland police arrested 36 more individuals, including at least four undocumented students. The City of Portland may have chosen to criminalize dissent, but they won't successfully prosecute it without a fight.