Oly 22 -- case dismissed! War, spies, politics, and extortion, but The Olympian editorial board just sees another Paris Hilton

author : Phan Nguyen topic : Port Militarization Resistance | Port of Olympia

by Phan Nguyen

The case of the "Oly 22" port protesters ended in a dismissal on June 12 after Thurston County District Judge Susan Dubuisson faulted the government for "gross negligence" in failing to provide the final 16 defendants with important discovery material in a timely manner before a second trial.

This concluded an extraordinary year of court proceedings that confronted issues of destroyed police evidence, the rare granting and revoking of the necessity defense, a prosecutor suffering an emotional breakdown during trial, a mistrial, and revelations of multiple government agencies spying on the defendants.

The case of the Oly 22 began in late May 2006, when Army Stryker vehicles from the 3rd Brigade, 2nd Infantry Division began arriving at the Port of Olympia for eventual shipment to Iraq, in advance of the brigade's own deployment. This sparked a series of demonstrations by concerned Olympia residents against the use of the Port for furthering the US occupation of Iraq. During ten days of protest, and under the eyes of the international media, 37 arrests were made, with 22 activists being arrested on May 30 -- hence the name "Oly 22."

The Olympian plays prosecutor and judge

In a June 17 editorial entitled "Prosecution Blew Court Case," the Olympian faulted the Prosecutor's Office for not pursuing the case aggressively enough.

The editorial board was careful not to explicitly presume guilt, but intimated it while portraying the case as "high-profile." The article suggested that the charges should have been pursued with utmost attention, "given the publicity and emotion surrounding the port protests and arrests here and in Tacoma." That is, the case needed to be pursued aggressively for reasons unrelated to the actual charges, the weight of those charges, or the strength of the case. The Olympian advised that the prosecution of the Oly 22 should be dictated by "publicity and emotion," as well as by actions occurring outside of the county's jurisdiction in Tacoma that happened 10 months after the Olympia arrests.

The Olympian editorial board even proposed that "Holm should have put his best attorneys on the case from the start," not because the charges of misdemeanor trespass were comparable to rape or murder, but simply because it was a "high-profile case." Following the Olympian's logic, the much greater high-profile case of Paris Hilton's driving with a suspended driver's license following a dui should have been pursued by the US Attorney General's Office. No amount of prosecutorial power should be spared when the media is involved.

In reality, the Thurston County Prosecutor's Office pursued the case relentlessly, challenging the defendants in Superior Court, spending an entire year and over $25,000 of taxpayer money, spying on confidential attorney-client work product, and forcing a mistrial in order to start the case over when it was losing -- all to prosecute misdemeanor trespassing charges. The case surely taxed the Prosecutor's Office, having gone through three attorneys, primarily with Deputy Prosecuting Attorney Debra Eurich, followed by Senior Attorneys Steve Straume and Jim Powers.

Rather than "drop[ping] the ball," as the Olympian editorial claimed, the prosecution did its best to secure convictions regardless of the validity of the cases -- no doubt what the editorial board desired. As a result, the prosecution did everything it could with such a weak case.

During the first trial, the prosecution's case was so weak that all of its witnesses made repeated references to a physical line that the defendants had crossed but admitted that no such line was referenced on the day of the arrests and that there was no physical line. Moreover, the prosecution had attempted to show that such a line was in fact demarcated -- not when the arrests were being made, but after the arrests were made. The judge prohibited presenting such evidence for obvious reasons.

Following the emotional breakdown of deputy prosecutor Eurich at trial and facing likely acquittals, senior deputy prosecutor Straume maneuvered into a mistrial. Straume introduced documents stolen from attorney -- client communications in order to show that confidential jury information had been compromised and then asked the court to make an advisory. Transcripts and video from the trial show that Straume made sure that he would not be the one to introduce the possibility of a mistrial. However, as soon as the judge asked if a mistrial was in order, Straume clung to that as the only option, even when both the defense and the judge offered more reasonable alternatives.

In fact, the defendants were later able to show that the only point at which confidential information was compromised was through an unknown entity spying on defense emails and communicating this to the prosecution. Straume withheld all information relating to the spy which could have averted the mistrial.

The prosecution clearly knew that it had been losing the trial. As was discovered after the mistrial, the jury was already 7 to 1 in favor of acquitting the defendants, and this was based solely on the prosecution's arguments; the defense had not yet argued its case.

If at first you don't succeed, mistrial and try again

With the mistrial successfully granted, the prosecution proceeded to change its strategy completely in order to increase its chances for convictions. First, the prosecution attempted to divide and conquer by filing a motion to separate all the defendants and try each one individually, which also would have given the prosecution 16 chances to secure guilty determinations. However when asked by the judge, the prosecution failed to explain how it expected to try 16 individual cases in less than a month, especially considering how the first trial was looking to last three weeks.

Next, the prosecution decided to drop one of its original 8 witnesses and then added 16 additional witnesses for a total of 23. It also asked all relevant Sheriff's Deputies to write additional reports for the May 30, 2006 incident and uncovered a document that remained undisclosed to the defendants for a year. This caused concern for Judge Dubuisson, who was not prepared to admit willful misconduct by the prosecutors, but accepted the less direct offense of "gross negligence" on the part of the government in general -- not just the prosecution. Dubuisson recognized that the prosecution had dramatically changed its strategy for the second trial and did not provide adequate notice for the defense respond to the "new" discovery material.

It is unsurprising that the Olympian would criticize the Oly 22 for "skat[ing] on a technicality." If the defendants had won in trial, the Olympian would have criticized the prosecution for failing to secure convictions. The Oly 22 were already guilty in the eyes of the Olympian.

Moreover, the Olympian editorial incorrectly claimed that the May 2006 port protests were aimed at the "shipment of military equipment to armed forces in Iraq," and suggested that the actions might be "endangering [the US troops'] safety by attempting to deny them the equipment they need to carry out their mission." If it had taken the time to read its own reporting, the editorial board would have learned that the Stryker vehicles were being shipped from the Port of Olympia in advance of the deployment of its intended recipients. The protesters were not trying to prevent soldiers already in Iraq from receiving additional equipment but instead wanted to keep the soldiers of the 3rd Brigade and their equipment home.

Somebody has to pay -- but pay for what?

Although the Olympian criticized the prosecution for sloppiness, that sloppiness did not result from indifference toward the case, but rather from the overdetermination to prosecute the case with the zeal that the Olympian demanded. The facts behind the case were unimportant. With the international media attention and the excessive use of police force, the Prosecutor's Office was expected to secure some convictions to show for it. It got none.

The Oly 22 were the scapegoats who were to be punished for the ten days of community-led anti-war protests and the subsequent embarrassment to the Port of Olympia and local police agencies. Part of that punishment was to be financial.

The Port of Olympia had amassed a sizable bill for security. It was invoiced $9096.50 from the Sheriff's Office, along with an estimated $16,000 from other police agencies. It alleged $2011 damage to the port fence -- not $5000 as repeatedly cited by the Olympian -- and not resulting from actions alleged to have been committed by the defendants. In fact the port admitted that the charge for the fence included damage that supposedly occurred on the day prior to the arrests. An additional $1937 was incurred by the port for cleanup costs for alleged actions committed while the defendants were already sitting in jail. The cleanup included power-washing anti-war messages that had been written in chalk on the pavement -- never mind the fact that the chalk messages would have been washed away by the rain the following evening. The Port of Olympia demanded $29,045.10 "restitution" from the Oly 22, as well as from another defendant who had been charged with trespass seven days earlier.

And what did the Olympian editorial board say about the restitution demands? It concurred. In an editorial piece on June 5, 2006, entitled, "Protest Costs Must be Paid by Someone," the editorial board declared, "Protesters who are found guilty of breaking the law should pay full restitution costs." No attempt was made to explain how allegedly crossing an invisible line would incur thousands of dollars of supposed damage. The Olympian was not concerned with the exact criminal charges -- simply that the "costs must be paid by someone" -- and the Oly 22, if they had been "found guilty of breaking the law," would be the ones, regardless of what law they might have been guilty of breaking.

Such was the extent of the Olympian editorial board's concern. It expected the prosecution to pursue the Oly 22 not because of the charges themselves, but because the "high-profile case [was] important to community residents," and by losing the case before a second trial, the prosecution had "let this community down." The Olympian never explained why it was in the interests of the community to spend more than a year and more than $25,000 taxpayer money to pursue misdemeanor trespass charges based on weak evidence. The Olympian never wondered if it was in the interests of the community for the prosecution to spy on constitutionally-protected attorney -- client work, or to have multiple gov't agencies spy on active members of the public at least since January 2006, as the Oly 22 case revealed. The Olympian never explained why it was in the community's interests to have the Port of Olympia be the conduit through which at least 37 members of the 3rd Stryker Brigade would be killed so far, along with countless Iraqis killed, and rising. (See page 8 of this issue for more details.)

The Olympian expressed no concern that the defendants receive a fair trial, that they were innocent until proven guilty, and that the prosecution had the burden of proving the charges. The Olympian did not express any concern over the fact that the prosecution had forced a mistrial when it knew it was losing the case, or that the defendants were under threat of double jeopardy when the prosecution attempted to retry the case using a different strategy after recognizing that its previous strategy did not work well in the first trial.

Who needs democracy when we have a free press?

The Olympian editorial board is comprised of the paper's publisher, the executive editor, and the editorial page editor, along with two rotating members of the public, and usually a sixth member who is employed by the Olympian. Throughout the years and due to its makeup, the board's concern has been maintaining the status quo. Its outlook toward activists reflects the outlook ascribed by other non-activist critics who merely value democracy in the abstract. Such people adhere to the following tenets: (1) Protesting the state is acceptable only within the parameters offered by the state, and (2) One should remain grateful to the state for being granted permission to protest the state.

The flaw is in crediting the state for allowing dissent to be voiced, rather than recognizing the activists who put themselves at risk for expressing dissent and the activists who went before them who paved the way for later generations to express dissent. Such freedoms were not won by conducting bombing raids overseas or by electing the lesser of two evils, but rather by challenging the restrictions of the state at home, on the streets, and in the courtrooms.

The Olympian is concerned with maintaining civility at home in order to mask the chaos inflicted by and inflicted upon the US military in Iraq. The true crime of the Oly 22 was in violating the civility of restrained protest. As the Olympian editorial demonstrates, the actual charges were irrelevant. The protests had crossed the line from merely expressing opinion to attempting to enact change, and somebody had to pay for it.

With the US occupation of Iraq in its fifth year, we need to rethink pretenses of keeping civility, of our concern to not upset the norm as we highlight the chaos that is being exported in our names.

The state can give an almost unlimited number of options for its people to express disapproval of war, but it amounts to nothing if it leaves no options to prevent or stop a war.

Activists know that this not a game. If the notion of "supporting the troops" means attaching a two-dimensional magnetic representation of a yellow ribbon to the back of one's automobile, then we should abandon the notion of supporting the troops with a call to save the troops. This concept remains foreign to the mainstream media and just adds to the irrelevancy of the mainstream media in the face of global struggles.

Democracy is fragile, not because of insurgents or terrorists, but because it depends on the resolve of the people. And it is too easy for that resolve to waver, to be taken for granted, or misdirected, or reduced to mere symbols, slogans, and rhetoric.

Absent an appeal, the Oly 22 case is over, but the struggle continues.

Phan Nguyen was one of the defendants of the Oly 22. He is currently defending himself in Tacoma against another frivolous charge: a traffic violation that resulted from walking on a public sidewalk while wearing a backpack with a copy of the US Constitution during an antiwar protest.

Link to the Olympian editorial referenced in this article: http://www.theolympian.com/editorials/story/137336.html