Occupy’s Legacy Still Being Revealed in Portland

By Helen Jung

Fifty people arrested during Occupy Portland protests two years ago are entitled to jury trials even though prosecutors downgraded the misdemeanor charges to violations with no threat of a jail sentence, the Oregon Supreme Court ruled Thursday.

The ruling in State v. Benoit is one of two decisions issued Thursday by the state’s highest court that found prosecutors can’t unilaterally change a criminal prosecution to a noncriminal one and use that to deprive defendants of such constitutional protections as a jury trial and the right to an attorney.

Occupy Portland’s Position Upheld

“There is no textual, historical, or logical support for the proposition that … what began as a criminal proceeding with defendant’s arrest, booking, and incarceration for a crime can, in the absence of her consent, be transformed without further constitutional consequence into a noncriminal proceeding,” Justice David Brewer wrote for the unanimous court.

The decision affirms the February 2012 decision by Multnomah County Circuit Judge Cheryl Albrecht that dozens of people arrested during Occupy Portland protests in fall 2011 are entitled to a jury trial if they wanted. Many chose trials in front of a judge.

The Benoit case involves the October 2011 arrest of Laurie Ann Benoit at an Occupy Portland protest in Jamison Square. Benoit was arrested, handcuffed and jailed for several hours on an accusation of second-degree criminal trespass, a misdemeanor crime, Brewer wrote.

Violation vs. Criminal Offense

Under the state Constitution, those faced with criminal prosecution are entitled to a jury trial, legal representation and other protections. But the state argued Benoit’s case did not qualify as a criminal prosecution because prosecutors with the Multnomah County District Attorney’s Office opted under state law to pursue the case as a lesser offense – a noncriminal violation.

Those convicted of violations face only a fine or other civil penalty and do not face jail time. State law also establishes a lesser standard of evidence to convict someone of a violation – by a preponderance of evidence versus guilty beyond a reasonable doubt for misdemeanors and other crimes.

But the court disagreed. It shot down the state’s argument that the lack of a jail sentence is the primary factor showing the proceeding was not criminal.

Benoit’s arrest is significant in showing the case was a criminal prosecution, Brewer said. Police only had the authority to arrest her because she was being accused of a criminal offense – second-degree criminal trespass. If she were charged with a violation, police officers could only cite her, he noted.

“The officers’ decision to arrest defendant and the other protestors rather than cite them for violations was a practical choice with legal consequences,” Brewer wrote.

In addition, the type of offense is important, he said. The Legislature has established criminal trespass is a crime. That bolsters the argument that the proceeding – regardless of the district attorney’s decision to treat it as a violation – is still criminal in nature.

Long-Lasting Implications

The decision in the case, as well as a similar finding in State v. Fuller, is an “impactful” one for district attorneys and police, said Doug Harcleroad, executive director of the Oregon District Attorneys Association and senior policy advisor for the Oregon Anti-Crime Alliance.

“That’s going to be a very expensive process,” he said, of appointing lawyers for defendants in potentially thousands of cases that have been downgraded to violations. “It may have the effect that (prosecutors) might as well treat it as a misdemeanor,” said Harcleroad, who also was a longtime district attorney for Lane County.

It also has implications for police in how to disperse large groups of protesters, such as in Occupy Portland’s case, he noted.

“They need that arrest power in order to break up things,” he said. “If they don’t have arrest power, it’s harder for them to do that. All they can do is write citations.”

The Multnomah County District Attorney’s Office is reading the court’s decisions and “evaluating our options in light of those opinions,” said Chuck Sparks, the county’s chief deputy district attorney.Φ

Helen Jung has been a reporter on The Oregonian’s breaking news/online team since 2007. Previously, she was a business reporter. She also contributes to the Oregonian’s Omamas parenting blog.