Thursday, March 26, 2015

To Crush a Cop-Watcher: Prosecutorial Abuse in Ada County, Idaho



 
The hardware is impressive, but much of the real damage is done by the prosecutors.

The prosecutor at Matthew Townsend’s March 19 preliminary hearing appeared to be auditioning for a Daytime Emmy. Her subsequent performance, and that of her colleagues, may be sufficient to earn a criminal contempt charge. 

Townsend, who is active in the Cop Watch (or police accountability)  movement, was arrested without cause on February 2nd in Meridian, Idaho for the supposed offense of walking away from a cop who wouldn’t charge him with an actual crime. On the eve of his hearing he protested that mistreatment in a Facebook post promising a “shame campaign” against his kidnapper, Officer Richard Brockbank of the Meridian Police Department – and any public officials who collaborated in that outrage.

The Meridian PD wanted to prosecute Townsend for felonious “intimidation of a state witness,” a charge without merit that summarily convicts Officer Brockbank of cowardice. The intent was to have Townsend arrested before or during the March 19th hearing on his “resist and obstruct” charge. 

“Your Honor, the State has received information that Mr. Townsend has been making threats to the Meridian Police Department,” intoned prosecutor Abbey Germaine melodramatically. “Based on that information and the contents of that threat the State will be moving to revoke Mr. Townsend’s bond. We’ll also be asking for a no contact order in this matter in regards to the officer involved in this case and any relevant family members in that message.”

Happier times: Matt responsibly enjoys an adult beverage.
The offending Facebook post expressed Townsend’s intent to conduct “a non-violent and legal shame campaign that will be remembered.” 

Nothing therein could be construed as a threat of any kind, let alone what is called a “true threat” as defined in current case law – under which the statement in question would have to be evidence of imminent, unlawful violence.

Seeking to disseminate his message, Townsend tagged dozens of people – including every significant media outlet in Idaho, and several others nation-wide. He also tagged everyone he could find who shared Officer Brockbank’s surname.

“In Mr. Townsend’s desire to get the message out as well as he could, he tagged a number of individuals,” explained the defendant’s court-appointed defense attorney. “He does not know these individuals. All he was doing was using what Facebook would tell him, finding every individual with the same last name as the officer, and getting the message out.”

“There has never been any violence alleged,” continued the defense counsel. “There has never been any threat of violence alleged. It specifically says within the context that was shown to the court, and was shown to counsel here today, that he’s [prepared to undertake] a `shaming’ program. A non-violent program. He’s doing exactly what Dr. Martin Luther King wanted to do – he’s doing it in the age of social media. He is trying to shame the government, which is First Amendment-protected speech. What he did does not warrant an increase in bond.”

The intent of the Facebook post was to express “a message that shared his displeasure with the government’s actions,” emphasized Townsend’s attorney. “That is absolutely the number one thing protected by the First Amendment free speech laws.”

As a reasonable person, Townsend “realizes that by tagging lots of people it apparently had the effect of reaching a lot of people who don’t have a stake in this game,” his attorney conceded. “People who could be juveniles or minors. He is happy to un-tag all of those people. The one thing we want the court to be aware of is that nothing that happens today should infringe on his First Amendment right to communicate his displeasure with the government.”

That right includes the liberty to criticize, by name, the individual who abducted Townsend under color of “state authority,” as the defendant’s lawyer pointed out: 

“The officer involved in this case is a public official. It is absolutely appropriate for him [Townsend] to continue to use the name of that officer in his political speech. He’s not going to the police station. He’s not going to the police officer’s house. He’s not interacting with their family, aside from this digital format. He’s happy to un-tag all of those people. I think this will address the issues brought to the court’s attention.”

Germaine (from her Facebook page).
Ms. Germaine’s rejoinder was worthy of a junior varsity High School debate competition. 

“Although the defendant has a First Amendment right to freedom of speech, he does not have a right to commit criminal acts while speaking,” she insisted. “In this case, he did make direct threat against individuals, whether these are cast in a violent or non-violent manner.”

Germaine graduated from law school two years ago. This isn’t long enough to have forgotten the relevant case law, which doesn’t sustain her claim that a conditional promise to carry out “non-violent” legal action can be treated as a “threat.” This means she either never learned that case law, or simply chose to ignore it. 

Her voice groaning under the burden of affectation, Germaine continued:
“He states, and I quote, `I know where you live.’ That is in direct correlation to the officer in this case, and the officer’s family. Bond is appropriate in this case, Your Honor…. At this time, the defendant is a threat to the community, and some bond is warranted.”

Perhaps Germaine was hoping that youth, charm, and apparent earnestness would overcome the deficiencies of her argument. They didn’t.
Judge Cawthon ruled in favor of the defense’s objection that prior notice of bond revision was necessary.

“I am going to set the motion of the State’s for hearing on March 30 at 10:30,” Cawthon announced. “And I will require the state to file that motion and have it served on [the defense] no later than Monday the 23rd.”

A second hearing was necessary, Judge Cawthon specified, in order to protect the defendant’s “constitutional rights in regards to any allegations of the commission of a new crime… [To] place him in the position today of responding to those would be very problematic from a Due Process point of view.”
 
Respecting his rights: Judge Cawthon.
Having dispensed with the motion to revoke bond, Judge Cawthon delivered a finding of fact regarding the claim that Townsend had committed felonious intimidation of a witness:

“While it is concerning what the state is alleging, what I don’t hear is any threats related to any type of physical harm, violence, things of that nature, to the officer involved in this case, or his family.” (Emphasis added.) 

Acting on the suggestion of Townsend’s attorney, Cawthon ordered the defendant “to un-tag the family members of the officer involved in the case.”
Since no evidence was presented that Townsend had actually committed a felonious offense, Cawthon declared, “the court is … imposing a pre-trial release order in your case – unsupervised, [on] conditions of the court. I’m not making you subject to the sheriff’s office on anything like that…. And then we will come back on the 30th and have this hearing related to the State’s request at that time.”

The evidence – such as it was – had been presented to the trial judge, who made a finding of fact that it was insufficient to justify revocation of bond. The prosecution was not deprived of a remedy: It could present any additional evidence against Townsend at the hearing scheduled for March 30, unless it decided to drop the charges. 

Pending the second hearing, Officer Richard Brockbank – the poor, timid little thing – would have to butch it up, relying on his body armor, weaponry, and the intangible yet impregnable shield of “qualified immunity” to protect his vulnerable ego and sense of privilege against the withering assault of Townsend’s rhetoric. 

This would have solved the problem, if one had actually existed. Instead, the Meridian Police Department and Attorney’s Office went judge-shopping.
A complaint was filed by Ada County DA’s office citing a carefully cropped – and artfully dishonest – rendering of Townsend’s Facebook post. It was, in substance, indistinguishable from the version of the post in which Judge Cawthon had found no evidence of a genuine threat. By way of an ex parte hearing, and in violation of the existing order by the trial judge, an arrest warrant was obtained against Townsend. 

In addition to being patently unethical and undeniably vindictive, this was quite probably illegal. 

Rule 7 of the “Local Rules of the District Court and Magistrate Division” for Idaho’s Fourth Judicial District specifies that Ex Parte orders “will be granted only if (1) it clearly appears from specific facts shown by affidavit or verified complaint that immediate and irreparable injury … will result to the applicant before the adverse party or the party’s attorney can be heard in opposition, and (2) the applicant’s attorney … has certified to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the party’s claim that notice should not be required.”

Can they defend poor Officer Brockbank from harsh Facebook posts?
The trial court judge before whom the facts had been presented had ruled that the supposed victim – the intrepid Juggernaut of Justice known to lesser beings as Officer Richard Brockbank – had suffered, or stood to suffer, no “injury” of any kind as a result of Townsend’s Facebook post. 

The prosecution obviously did not make this known to its hand-picked judge, nor did they give notice to the defendant of the impending second complaint. 

Although assistant Ada County DA Kari Higbee’s name was on the complaint, Abby Germaine was the official who “routed” the case to the County DA’s office. She was the one who developed the evidence – such as it was – and was present when Judge Cawthon issued his ruling. Interestingly, the officials behind this prosecution are not willing to disclose the names of those who played the most important roles therein.

Ms. Germaine did not directly respond to multiple direct inquiries asking that she either confirm or deny that she acted as prosecutor during the March 19 hearing. A spokesperson for the Meridian City Attorney’s Office confirmed that they “contract all of our prosecutions to the Boise City Attorney’s Office" -- where Germaine is employed in the Enterprise/Land Use division.

After I left a message on Ms. Germaine's voice mail a woman identifying herself as “an attorney in the Boise City Attorney’s Office” contacted me at 12:44 PM on March 26 to tell me that “because the Matthew Townsend case is still pending, there’s not much I can comment publicly about it,” including the name of the prosecutor. When I asked for her name, that spokeswoman replied, “That, too, is confidential.”

While nobody would confirm that Ms. Germaine acted as prosecutor in the Townsend case, her name was called by Judge Cawthon at the beginning of the hearing, as recorded in the courtroom audio. She has just recently begun her legal career. She is more vulnerable than her colleagues, and in the event the matter gives rise to a civil rights lawsuit – as it should – her name will be one of the first listed in the complaint. She may be also left to endure, by herself, the career-killing impact of a contempt of court charge, and appropriate sanctions by the Bar. 

American Bar Association’s Rule 3.8, which deals with “Special Responsibilities of a Prosecutor,” instructs prosecutors to “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” 

Ms. Germaine had been informed by the trial judge that no probable cause existed to charge Townsend with a felony. She and her superiors did not disclose this to the second magistrate, an omission that violates Rule 3.3 of the “Idaho Rules of Professional Conduct,” governing “Candor to the Tribunal.”

If Judge Cawthon’s findings “were hidden from the second judge, there should be hell to pay,” opines Jerri Lynn Ward, a veteran defense attorney from Texas. The second judge “is now a witness” if Townsend’s attorney files a motion for contempt.

“Years ago in Texas, some CPS [Child Protective Service] attorneys did the same thing” in seeking the removal of a child from parental custody, Ward recalls. “The first judge ruled `no,’ and they went to a second judge and failed to tell him that there was already a ruling. They got into a bunch of trouble over that.”

In this case, Ward believes, if the prosecutor responsible for Matthew Townsend’s arrest warrant “misrepresented facts to a second judge, her career should be over” – which could apply to either Germaine, or Higbee, or both of them.

Defense attorney Susan Gerber, who served as a deputy state Attorney General in Oregon, offered substantially the same assessment of the case, albeit in somewhat empurpled language. J. Andrew Lauer, a former prosecutor in both Colorado and Washington, presents a more ambivalent view.

“A second judge would owe more deference to an earlier judge’s factual findings on a particular matter if there were a contested hearing with witnesses, exhibits, and such, where a judge had to decide who or what to believe,” Lauer points out. “But if the first judge simply reached a legal conclusion that even if what is alleged is true, it is still not a crime, then that’s an opinion that a second judge could generally disagree with – but should be told about.”

The prosecution did what was necessary to prevent the second judge from being apprised of Judge Cawthon’s ruling, and to avoid a “contested hearing” that had been scheduled for March 30thLauer believes that the prosecution has "the option of charging the defendant sooner, in a new case ... regardless of how [Judge Cawthon] would probably have ruled or will rule" in the scheduled hearing.

Waiting for an adversarial proceeding of that kind wouldn’t be satisfactory to the Meridian Police Department and Attorney’s Office. As Judge Cawthon pointed out, the hearing was necessary to protect Matthew Townsend’s due process rights, and require his accusers to provide evidence of an actual crime. 

Clean up this mess: Ada County DA Jan Bennetts.
By violating the law and existing ethical guidelines, the Meridian City Attorney’s Office, and the Ada County DA’s office, conspired – no other word is suitable – to contaminate Townsend’s record with an illegitimate felony arrest, in the apparent hope of caging him for at least two days without the need to demonstrate that he had committed any offense other than “contempt of cop.”

In this fashion, to paraphrase a similarly abusive prosecutor in another part of the Gem State, “punishment would be achieved” -- even if the meritless charges were eventually dismissed.

It should not be forgotten that Townsend’s original infraction was to walk away from a police officer who had refused to charge him with a crime. When Officer Brockbank subjected him to an unlawful arrest, Townsend did not resist in any way.
 
Gadfly: Matt Townsend's 2014 campaign sign.
“The worst facts in the police report include the officer noting that Mr. Townsend had a sign that was conveying a First Amendment message regarding the government, and that he was doing it at an intersection,” Townsend’s attorney pointed out during his March 19 hearing. “There was no foot flight; there was no pushing, there was no shoving, there was no fighting. He was in all other ways cooperative except when he decided he no longer wanted to have contact with the police – which, of course, we are absolutely allowed to do.”

Although those who commit “contempt of cop” are subject to severe summary punishment, that offense is not found in Idaho Code section 18-1801, which lists “Criminal contempts.” Specific mention is made, however, of “contempt of court” through “Willful disobedience of any process or order lawfully issued by any court” (emphasis added). That applies to ruling issued by Magistrate Judge Cawthon.

The real crime here, let it not be forgotten, is not an offense to the supposed majesty of any court, but the repeated violent abduction of an innocent and harmless man as punishment for the peaceful exercise of his rights. 

In this entire affair, Matthew Townsend has never broken the law, and his official persecutors have never obeyed it. No law forbids a citizen to walk away from a police officer who refuses to charge him with a crime. Nor is it a criminal offense to publish a Facebook post demanding that a spurious charge arising from that incident be dropped, and promising non-violent, peaceful protest if that demand isn't granted.

No law authorized Richard Brockbank to arrest Matthew for the first act, or Abbey Germaine to pursue a felony charge for the second -- particularly in light of Judge Cawthon's finding that the second charge had no merit. We are supposed to believe that those actions reside within the discretion of public officials.


Someone who is ruled by the "discretion" of another is, to that extent, a slave.



(This essay has been revised from the original version with additional insights from attorney J. Andrew Lauer, for which I am appreciative.) 





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