(This post originally appeared at The Free Thought Project)
Boise, ID – A mistrial was called in the case of police accountability activist Matthew Townsend, who faces a potential five-year prison sentence for writing a Facebook post critical of a Meridian, Idaho police officer who arrested him without justification. His new trial, which is scheduled for three days, will begin on February 29.
Trial Judge Lynn Norton prompted Assistant Ada County Prosecutor James Vogt to move for a mistrial during the opening argument of defense counsel Aaron Tribble after Townsend’s attorney mentioned that the original arrest involved an alleged jaywalking violation, and that Townsend is now charged with a felony for complaining about the arrest on Facebook.
As before Vogt stated the reasons for his objection, Norton instantly asked the prosecutor: “Are you going to move for a mistrial?” Tribble pointed out that the charge had been described as a felony, and that the size of the jury – fourteen panelists, evenly divided between male and female – made it clear that the offense being considered was a felony, rather than a misdemeanor. Vogt protested that the instructions to the jury do not permit them to be informed of, or take into account, potential sentencing options, and contended that they likewise “cannot take into account the degree of the offense.”
The Idaho Rules of Criminal Procedure do not address that question. Courtroom spectator A.J. Ellis, who recently served jury duty in neighboring Owyhee County, told The Free Thought Project that “during jury selection we were explicitly told that the case before us dealt with a misdemeanor offense.” Several trial attorneys contacted for comment by The Free Thought Project in multiple states likewise reported that a mistrial on the grounds cited by Vogt at Norton’s prompting struck them as a novelty.
Tribble’s opening argument was interrupted by objections no few than four times before Norton invited Vogt to move for a mistrial. Both the prosecutor and the clearly partisan trial judge (about whose previous behavior more will be said shortly) were visibly unhappy with Tribble’s presentation. He informed the jury that “I don’t think your time is going to be well served” by the trial, because the prosecution cannot prove a key element of the alleged offense. Specifically, that Townsend intended to prevent Corporal Richard Brockbank of the Meridian Police Department from testifying in the preliminary hearing on the misdemeanor charge.
“There are nine elements to this offense,” Tribble pointed out to the jury. “The prosecution’s evidence addresses eight of them.” The ninth – intent – cannot be proven with the available evidence.
During his opening argument, Vogt repeatedly emphasized an artfully crafted and dishonestly cropped version of Townsend’s March 18, 2015 Facebook post:
Tomorrow, I go to pretrial at the Ada County Courthouse to claim that my charge of “resisting or obstructing” a supposed jaywalking investigation after Meridian Police Department – Idaho officer RICHARD BROCKBANK refused to charge me after I demanded that he charge me for the “crime” that he supposedly stopped me for, is terroristic in nature and in other ways unconstitutional and criminal.
The cop refused to charge me for said “crime” that he was accusing me of and so I walked away… and was soon after kidnapped and hauled away by several costumed State goons for my disrespect of officer Brockbank’s harassment towards me.
I’m hoping that the REAL reason I was harassed to begin with will be released by the State rather than I... we shall see. If my case isn’t dismissed tomorrow upon my request, I will begin a non-violent and legal shame campaign that will be remembered. HOA “upsets”, protests in the aggressors neighborhoods (I know where you all live- this is notification of knowledge and future protests, not a threat), mailers, door hangers, online ads, local and (hopefully) national media- I’ve done it before and I can do it again as well as other peaceful, but… annoying avenues will commence.
The State has 3 options: drop the charges and leave me alone; 2) Endure my non-violent retaliation (do you want to be the focus of my rage?); 3) Kill me and deal with those that know, love, and care about me. Make your choice.” (Emphasis added.)
That message was “tagged” to the Meridian Police Department, every media outlet in Boise, and – since Townsend didn’t know how to contact Corporal Brockbank directly – everyone with the surname “Brockbank” on Facebook.
Studiously avoiding Townsend’s explicit repudiation of violence or unlawful action, and the fact that this statement was directed not merely at Brockbank but the media, Vogt pretended that this was a direct threat to Officer Brockbank and his family. He did this by repeating, as if in a mantra: “I know where you all live … leave me alone or be the focus of my rage … kill me.”
“As it happened, Corporal Brockbank was out of state when the post was made,” Vogt observed, pandering to the jury’s patriotic impulses by saying that the officer was attending his son’s graduation from a military academy. He was far from his family when “his wife called” to report the “threat” from a “perfect stranger,” the prosecutor melodramatically intoned.
“Mr. Townsend gave Brockbank a choice, and he promised consequences,” Vogt concluded. “And, by the way, `I know where you and your family live.’”
When reduced to print, the rhetorical tactic employed by Vogt is best described as “lying through ellipses” – strategic omission of the most critical facts.
Through this misdirection, Vogt sought to divert the jury’s attention from the fact that the supposed ultimatum was not directed at Brockbank – the only witness against him — but at “the State.” It was “the State” that threatened to punish him, to kill him if he resisted, and that had the power to drop the spurious charges against him. He never in any way attempted to deter Brockbank from testifying freely, fully, and truthfully, and there is no evidence that this was his intent. To the contrary, he clearly expected that if Brockbank testified truthfully the “resisting and obstructing” charge would be dismissed: After all, Townsend expressed the hope that “the REAL reason I was harassed to begin with” would be made clear during the proceedings.
Rather than an attempt to suppress Brockbank’s testimony, or suborn perjury from him, that statement was an admonition that he tell the truth — offered in the confidence that if the officer testified fully and truthfully the charge would be dismissed.
The facially absurd claim that Townsend’s Facebook post constituted a “threat” to anybody has already been adjudicated. During the March 19, 2015 preliminary hearing on the misdemeanor charge, the Ada County Prosecutor’s Office attempted to have Townsend’s bail revoked and demanded that he be taken into custody on the felony “witness intimidation” charge. After hearing exactly the same evidence against Townsend that would be used in his felony trial, District Judge James Cawthon ruled that he saw no “threats related to any type of physical harm, violence, things of that nature, to the officer involved in this case, or his family.”
As defense attorney Tribble summarized to the jury in his January 19 opening statement, at the time of the arrest a year ago, Townsend “was protesting taxes.” Brockbank, according to his incident report, saw Townsend entering a crosswalk before the light changed (which doesn’t constitute “jaywalking”), and sought to “educate” him about pedestrian safety. After Townsend asked if he was being charged, Brockbank didn’t answer, so Townsend simply exercised his legal right to walk away.
“At this point, Brockbank said, OK, I’m going to arrest you for resisting and obstructing,” Tribble recounted. “And now what began as a jaywalking case has become a felony charge….”
It was here that Vogt objected, and after the jury was removed from the courtroom Judge Norton helpfully suggested that he move for a mistrial. This isn’t the first time Norton has acted as a coach for the prosecution.
On January 8, Townsend’s attorney argued a motion to dismiss the case for lack of evidence regarding the key element of the offense – namely, intent to intimidate a witness. Tribble had presented a detailed and compelling memorandum on behalf of the motion, and argued it for roughly ten minutes before Judge Norton.
When his turn came, Vogt consumed twenty seconds in requesting that Norton simply rule against the motion, a request that the trial judge eagerly granted.
At this point, despite the fact that the prosecution didn’t bother to make an argument in opposition to the motion, Judge Norton did so.
“One thing that I would want to note is that Mr. Tribble does seem to argue that there must be direct evidence to support an element,” Norton observed in an entirely gratuitous critique of a motion she had just dismissed. “Evidence can be direct or circumstantial” for intent to intimidate, she insisted, and “the law does not differentiate between direct evidence and circumstantial evidence.”
The only “circumstantial” evidence of “intimidation” would consist of speculation, inference, and imputed motives. As the official who would rule on admissibility, Norton has indicated that she intends to give the prosecution as much latitude as it may need to make a “circumstantial” case for an offense that — by statute and precedent — requires direct evidence in order to sustain a conviction.
“The jury can consider circumstantial evidence, looking at all of the evidence as a whole and not just looking at one particular statement,” Norton declared.
While the prosecution will apparently be permitted to impute “intent” to Townsend on the basis of things he didn’t say, write, or do, Norton insisted that the defendant’s actual words are not definitive evidence of his intent.
“Just because in this particular case there was a note in that particular Facebook post where he referred to – as almost as a caveat referring to `’non-violent’ – that doesn’t mean that that’s binding on a jury to actually decide that’s what his intent was, any more than an assault is remediated just because as the person pulls the gun away from somebody’s head they say `just kidding,’” Norton asserted, reciting an argument that was made by the prosecution during last April’s probable cause hearing, and reiterated during the January 19 jury selection.
The tortured analogy between pointing a gun at a terrified person’s head and writing a nasty note on Facebook offers decisive proof that both the prosecution and Judge Norton know this case is without merit: Under Idaho case law, Townsend could not be convicted of witness intimidation if he had pointed a gun at Brockbank – as long as there was no direct evidence that this was done to prevent him from testifying “freely, fully, and truthfully.”
In 2011, the Idaho Court of Appeals overturned a witness intimidation conviction in which relatives of a man facing a narcotics charge, acting on the suspect’s direct request, invaded the home of a potential witness and held her at gunpoint.
Saying that he was acting on behalf of “Michael” – that is, Michael O’Neill, the jailed defendant – one of the invaders told witness Sarah Phelps, “You’re f***ed; you’re going down,” as he thrust a .45 caliber handgun in her face.
The Appeals Court recognized that because there was no direct evidence that this violent crime was committed for the purpose of “affecting future testimony,” as opposed to “retaliation,” it did not meet every element of the offense called witness intimidation.
Of course, Sarah Phelps was a mere Mundane, rather than a swaggering, armor-clad dispenser of State-sanctioned violence.
A separate Idaho state precedent deals with a supposed threat made by Coeur d’Alene resident John Anderson against Officer Timothy Neal of the Coeur d’Alene Police Department, who was scheduled to testify against Anderson in a domestic violence case.
According to Officer Neal, Anderson left a voice mail message saying that if the case went to trial, he would “get me on the stand and let people know I’m gay.”
Making that claim in public would apparently injure Officer Neal, so he charged Anderson with felonious intimidation of a witness – thereby making that claim part of the public record. Anderson, who acted as his own defense counsel during his trial, was convicted on charges of misdemeanor battery and felonious witness intimidation.
Sentenced to a year in prison and two years of supervised probation, Anderson appealed his case to the Idaho Supreme Court, which overturned the latter conviction because of improper instructions to the jury. The trial judge erred by failing to explain that the State had to prove every element of the offense, which includes not only an effort to intimidate or harass a witness, but the intention to prevent the witness from “testifying freely, fully and truthfully” in court.
“The jury may have concluded that Anderson did not leave the recorded message for the purpose of preventing Officer Neal from testifying freely, fully, and truthfully, but rather for the purpose of venting his anger or simply to irritate or annoy Officer Neal,” observed the Court. “It is the State that bears the burden of proving beyond a reasonable doubt that Anderson possessed the intent at issue….” (Emphasis added.)
As defense counsel Aaron Tribble tried to explain to the jury — before being silenced by a dishonest prosecutor and a clearly biased judge — there is no evidence that Matthew Townsend intended to scare Corporal Brockbank from testifying fully and truthfully. When the trial opens on February 29, the prosecution’s case will have to be built on the claim that Brockbank was terrified of Townsend, irrespective of the defendant’s intent.
During the probable cause hearing in the Townsend case last April, Brockbank strode into the courtroom in full battle array for the purpose of testifying that he is an incontinent coward who had been frightened and intimidated by Townsend’s innocuous Facebook post.
In defense of what passes for his character, there’s no evidence that, in this case at least, Brockbank committed perjury.
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Contributed by William N. Grigg of The Free Thought Project.