It’s been nearly two years since cops unceremoniously broke up Occupy Portland's downtown camps in the name of safety, hygiene, and the health of the city’s grass. It’s also been well over a year and a half since the will-they-won’t-they question of whether Occupy Portland defendants will get jury trials started as a fight between the Multnomah County District Attorney’s office and the ousted Occupiers’ defense lawyers.
Now, the judicial decision we’ve all been waiting for is finally in.
The Oregon Supreme Court ruled today that Occupy defendants who were arrested on misdemeanor charges that were later reduced to violations by the DA are entitled to jury trials.
Now hold on, the story from here on gets a little tangled.
The court made its ruling in the State of Oregon v. Laurie Ann Benoit. Benoit was arrested, handcuffed, and booked on October 11, 2011 along with 49 other Occupiers when the cops “evicted” them from their encampments.
She was then charged with second-degree criminal trespass, a class C misdemeanor. This would have entitled her to a jury trial; only at her arraignment prosecutors opted to lower the charge to a violation. The majority of Occupy cases were handled in this way.
Lowering charges is a common practice for the DA. But Occupy lawyers weren’t having it, and, in early 2012, they filed a motion claiming this downgrading of charges denied the defendants of their constitutional right to a jury trial.
In February 2012, Multnomah County Circuit Judge Cheryl Albrecht agreed with Occupy’s defense, to a point.
At that time, she issued a ruling saying Occupiers who had been booked with A and B misdemeanors—things like “resisting arrest”—but whose cases were later reduced to violations were entitled to jury trials. Left out were Class C misdemeanors that were now violations.
No slouch, the DA’s office noted this, and responded by dropping all former A and B charges, leaving only the former C misdemeanor charges.
Enter the case of Tawanna Fuller, an accused shoplifter.
The 44-year-old Fuller had been booked on third-degree theft, a C misdemeanor, as well as a class A misdemeanor for attempted first-degree theft. However, Fuller’s charges were lowered at arraignment so, like the Occupiers, she was not eligible for a jury trial. But, like Occupy’s lawyers, Fuller’s defense argued she had the right to a jury trial, and eventually the Oregon Court of Appeals agreed.
The court ruling in Fuller’s case came out in fall 2012. At the time, Occupy defendants who had been arrested in Chapman and Lownsdale squares had already gone to their now-juryless trials.
However, Judge Albrecht had not ruled on these downgraded misdemeanor cases, choosing instead to wait to make a decision on all the Occupy cases under purview—which added up to about 60 defendants. When the Fuller decision hit, it sent Occupy lawyers scrambling to, again, stake their clients’ claims to jury trials.
They filed their motion shortly after the Fuller decision and, relying on the precedent set by Fuller, Albrecht ruled those former C misdemeanor Occupiers had the right to jury trials.
And that looked like the end of it, only it wasn’t.
At this point, pretty much everyone was convinced the DA was going to just give up and dismiss the Occupy cases; but noooooooooooooo!
Not one to turn away from a fight, the DA filed a writ of mandamus, which is the legal equivalent of getting your mom to resolve a fight between you and your sister “that you damn kids can’t solve yourselves.” Only in this case, your mom is the Oregon Supreme Court. Which brings us back to today’s ruling.
In the State of Oregon v. Laurie Ann Benoit, the Oregon Supreme Court finally ruled on the DA’s writ of mandamus. Justice David Brewer wrote the unanimous decision, stating that the downgrading of Benoit’s charge from a class C misdemeanor to a violation deprived the defendant of her right to a jury trial. The previous week, the court had also ruled again in the Fuller case, agreeing with the appeal’s court decision. And there you have it: Occupy defendants (and Tawanna Fuller) have the legal right to jury trials.
The decision is expected to apply to as many as 50 Occupiers, although the actual number could be smaller at this point.
Now, again, the question becomes: Will the DA choose to take Occupy Portland to a jury trial? Or, will prosecutors instead finally realize this sparring with Occupy could be construed as a colossal waste of taxpayer money? (Just planting seeds).
In any event, taking the Occupy cases to trial probably means retrying both the Lownsdale and Chapman Square cases again—which we can only assume will be challenged in some way—not to mention trying for the first time defendants from Jamison Square and Shemanski Park, and anyone else I might be forgetting originally booked on class C misdemeanors charges when the cops cleaned house in 2011.
For now, at least, Occupy’s lawyers are calling this is a victory.
“We all feel so very vindicated,” says defense attorney for Occupy Pete Castleberry. “This is justice. I think they [Oregon Supreme Court Justices] hit the nail on the head.”
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