Works In Progress - June 2007 - Paying the price of political prosecution: Assessing the damage of the Oly 22

News of the demonstrations, protests, and arrests at the Port of Olympia in May of 2006 touched off a barrage of worldwide media coverage and criticism. It also became a sort of blueprint for how other ports were going to deal with demonstrations against military shipments as we've seen this year in Tacoma and Aberdeen.

Many in this community wonder why the prosecutors are pursuing convictions of the protesters with shaky evidence of an even more unclear crime at taxpayer expense when Tacoma, with much larger resources, is not pursuing charges against the majority of arrested protesters. It should be noted that the city of Olympia has not brought charges against anyone they arrested in May of 2006, but it is Thurston County that is prosecuting those arrested at that time by the Sheriff's department and the Washington State Patrol.

Possibly, the elected Ed Holm is using the Oly22 cases to repair the reputation of his office in the wake of the sexual harassment finding against his staff. Maybe Ed Holm is just trying to keep his staff busy with whatever comes up because there is not enough crime here to otherwise substantiate his department's budget.

The Port of Olympia has applied political pressure onto the county prosecutor's office to extort $29,000 from the protesters for damages caused on the port site. None of the protesters are charged with destruction of property, just trespass, so it's extremely unlikely that any restitution to the port will happen.

Even if we don't wonder how much thought is given by the prosecutor's office to the political choices of bringing the Oly22 to trial, we must wonder how much consideration is given to its economic costs. This question is an especially compelling one given the fact of the recent mistrial. Starting the process over again will most certainly end up costing the taxpayers more than it would get in return from the fines that come with convictions. I asked this of Ed Holm, and he replied that his office does not maintain financial cost records of individual cases and that he is not required to create such records. But I've managed to put together an estimate of court costs and counsel expenses from publicly available data (and I'm not even talking about the taxpayer costs of having Sheriff's deputies around the Port during the military shipment time).

There were 20 arrested for Criminal Trespass 2nd Degree -- a misdemeanor status with a $1,000 maximum fine and up to 90 days in jail. Three arrested under this 'crime' have taken plea bargains at less than the full fine amount with no jail time, other than their day/night of arrest. The other two of the Oly22 took a plea agreement to their 'crime' of Riot without major fines and no lasting convictions. The prosecutors office has brought in about $2,500 in fees/fines so far for the county in the Oly22 case. For the remaining 17 protesters, the county can hope to recoup a maximum of $17,000. If the courts sentenced the protesters to jail, it would cost the taxpayers in the amount of $201,600 at $112 per person per day for the maximum duration. It is likely though that the future fines, if any, would be modeled after the first 5 cases with no jail time. Meaning: $8,500 more to the county.

I estimate that the public has invested at least $25,000 in prosecuting the Oly22 so far. As a conservative estimate, I am just looking at the fixed costs of salaries of public employees including the judges, prosecutors and assistants, bailiffs, public defenders, court reporters, and witnesses who waited for and/or did testify during the mistrial. I am not including costs of transcripts, clerk work, schedule shifts, and office supplies.

The public employees/positions (2005 records): District Court Judge Susan Dubuisson at $9,871.50/month; Superior Court Judge William McPhee at $5,183.79/month; Senior Deputy Prosecutor Steven Straume at $8,164.00/month; Deputy Prosecutor Deborah Eurich at about $5,500.00/month; Sheriff's Lieutenant Chris Mealy at $6,257.00/month; Sheriff's Captain Brad Watkins at $7,743.00/month; Port security officer Mike Crawford at $5,334.84/month; assistant to prosecutor at $3,262.00/month; court bailiff at $3,467.00/month; and court reporter at $4,897.00/month.

The courts have had 18 hearings for the Oly22 over the past year where they have spent 24 hours on their cases. In addition, another 24 hours was spent over the course of the week of the mistrial involving additional parties such as jurors, witnesses, and administrators. The prosecution and Judge Dubuisson has expressed interest in severing the cases -- right now all remaining are lumped together in one big case in one big trial. Severing along the lines talked about would result in three case groups that would then each have their own trial with the same arguments, the same witnesses and the same prosecutorial team, but different jurors. Severance would triple the costs to the taxpayers of one big trial.

Every defendant is entitled to a trial or surely the justice system would grind to a halt if all cases had to be tried before a judge or jury. It wasn't until the number of cases needing trial far exceeded the number of courtrooms available that plea bargaining became commonplace. Only a small percentage of cases -- estimates are between 5 percent and 12 percent -- go to trial, the vast majority of the others are resolved through plea bargains.

The problem with this prosecutor's office is that they are unwilling or politically unable to present a reasonable plea bargain. Instead, they just keep throwing money at it to keep busy working on it, hoping it will just go away. If the plea bargain has the conviction as the maximum penalty for a crime, then there is no incentive for the defendant to plead guilty. The threshold for penalties of misdemeanor cases such as the Oly22 is so low already that there is not much room to bargain with. The county is spending tens of thousands of dollars, and may spend much more still, trying to get $11,000 out of the Oly22. When compared to the cost of a misdemeanor trial, offering any plea bargain -- or dropping charges -- is considerably less expensive.

After the mistrial, the judge has reset the case(s) to be done by the last week of June. So, we'll have to wait and see how much more of our money is spent on this.

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