At the time of Schaefer’s interview he was charged with being a felon in possession of body armor. Evidence in that case included body cam footage from arresting officers. That footage was later used by prosecutors in his federal case. Despite overwhelming evidence that would jog the memory of any normal person that had interviewed Schaefer in the capacity that Deits interviewed him, she claims that at no point when she was working on his federal case did she ever remember meeting Schaefer. The judge overseeing the case, Marco Hernandez, has stated in court that he does not believe her. This author personally dislikes Hernandez, has a very rocky history with him, and despite that fully supports his position that Deits is not credible.
Diets’ prior work with Schaefer did not come to light until someone at MPD noticed a Facebook post written by Diets about the guilty verdict in which she referred to the case as what she had lost her mind working on for months. The MPD lawyer reading the post remembered that Diets had worked with Shaefer’s MPD defense team and notified Schaefer’s lawyer.
A criminal background check of Deitz revealed a dismissed speeding violation. The information from that case was listed as follows:
VIOLATING A SPEED LIMIT
Case Number 17VI208971
Crime Type TRAFFIC
Degree Of Offense VIOLATION CLASS C
Grade Of Offense CR
Offense Code 811.111
Offense Date 11/26/2017
Offense Description VIOLATING A SPEED LIMIT
Charges Filed Date 12/05/2017
Disposition Date 02/09/2018
Status STATE OF OREGON VS LAUREN WILLIAMS DEITS
More information: https://www.oregonlive.com/news/2019/09/was-case-against-cigarette-pack-bomber-tainted-by-prosecution-federal-judge-orders-inquiry.html
Possible Lauren Deits Facebook Profile: https://www.facebook.com/lauren.deits
In the spirit of disclosure this author remembers living next to Schaefer at the Columbia County Jail in 2018. During that time Schaefer a.k.a. “Fingers” made my time better. At one point he stuck up for me after a guard used excessive force. Fingers helped me eat better when the jail would not sell me commissary. I believe that my opinion of Ms. Deits has been tainted by my positive experiences with Fingers kind of like how her experience with him surely tainted her work on his trial.#laurendeits #jasonschaefer #metropolitanpublicdefender
This just shows that it takes a crook to catch a crook. #richardroberts #franklucas #americangangster #essexcounty
In this case the discriminatory intent was shown by providing the court with internal emails turned over by Multnomah County. The emails dated back a couple of months before the basis of the charges occurred. The emails were between former Multnomah County Sheriff’s Office (MCSO) deputy Todd Shanks, Multnomah County Sheriff Michael Reese, Multnomah County Deputy District Attorney Kevin Demer, and Multnomah County District Attorney Rod Underhill. The emails indicated that a criminal investigation by MCSO Detective Kevin Odil was underway in response to the launching of the website and the owner threatening to expose problems at the Multnomah County Detention Center (MCDC) if improvements were not made while he was in jail for a violation of supervised release. This investigation was inappropriate because none of the accusations constituted a violation of the law. The emails indicated that MCSO, United States Probation Officer (USPO) Matthew Preuitt, and AUSA Gregory Nyhus were doing all they could to get a harsh sentence with the main goal of destroying this website. Then when the CopBlaster.com owner’s arm was broken after throwing spicy chips at a deputy things changed. Nyhus took a bunch of unproven allegations of injury to file charges of assault with bodily injury. This charge created a presumption of dangerousness that legally required the court to favor pretrial detention without bail. There is no bail in federal court in the District of Oregon so the only choice is to release on recognizance or hold in detention. That alone was motive enough to pursue charges because no conviction was necessary for punishment to be administered. The emails between Preuitt, MCSO staff, and Nyhus made it clear that the main motivation for the prosecution was this website even though the website is not illegal. That is discriminatory intent.
The discriminatory effect was proven by finding cases of other similarly situated people that were not prosecuted. Those people were federal inmates in the Multnomah County Jails that had been referred to the MCDA for prosecution in state court for assaulting a public safety officer. To convict in those cases the elements also required assault with bodily injury on a deputy. The only difference was that in federal court the inmate would have to be in federal custody pursuant to a contract between the U.S. Marshals and MCSO. After getting a list from the MCDA of all inmates referred for APSO prosecution since 2002 it was discovered that five were in federal custody and of those five the owner of CopBlaster.com was the only one charged in federal court.
The law states that a prosecution is selective if it “had a discriminatory effect and that it was motivated by a discriminatory purpose.” United States v. Armstrong, 517 U.S. 456, 465 (1996). The government acts with a discriminatory purpose when the prosecution “was based on an arbitrary classification such as race, religion, or the exercise of constitutional rights.” United States v. Darif, 446 F.3d 701, 708 (7th Cir. 2006). See also United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972) in which the defendant was entitled to acquittal “if his evidence proved that the authorities purposefully discriminated against those who chose to exercise their First Amendment rights.” Discriminatory effect can be proven by showing that the government declined to prosecute similarly situated individuals. Armstrong, 517 U.S. at 468. The defense can do so with “a credible showing of different treatment of similarly situated persons.” Id, at 470.
With the written law so clearly favoring the defense in this case why did this defense fail? It failed because judges ultimately follow their gut. Their gut tells them that they need to do everything they possibly can to prevent people that exercise their First Amenment rights in ways that offend the police from being able to assault law enforcement personnel and then have the case dismissed by proving that the police were motivated by the speech. One could conceivable decide to give a speech intended to offend the police for the purpose of using it later as a means of defending an assault they were already planning. In this case the government tried to make an argument that those four other inmates did not have the same criminal history as the defendant but it was shown that at least two of those inmates had far worse histories. Discriminatory intent was not something Nyhus could disprove.
Unfortunately Nyhus won his argument against the showing of discriminatory effect based on the small sample size of similarly situated persons and the amount of time that transpired between most of those cases and the incident giving rise to the prosecution. That worked for him even though one of the similar cases took place after the events that led to the prosecution in this case. The court ruled in his favor even though the case law has made it clear that only a small number of people are needed. For instance in Steele there were only six similarly situated people identified that were not charged and the only other people charged were charged under identical circumstances. Steele involved a case in which only people that spoke out against the census were charged for not participating in the census. That case involved a higher percentage of people prosecuted than this case.
District court judges get away with such errors all the time because they would rather err on the side of the government and risk losing on appeal than to free someone charged with a violent crime. District court judges feel that their job to protect the community from violent crime is more important than technical legal questions and that it is better to leave questions of law for the appellate courts.
The court should have at least ordered additional discovery in this case. Additional discovery is warranted when the defendant can make a prima facie showing of selective prosecution. At that point it is on the government to produce discovery proving that selective prosecution did not exist in order to avoid dismissal. In Armstrong for instance SCOTUS held, “A defendant who is arguing that he was targeted for prosecution on the basis of race cannot compel discovery unless he or she can show that the government did not prosecute similarly situated individuals of other races.” In this case others not prosecuted that did not exercise their First Amendment rights was shown but by saying there were too few the judge avoided having to order discovery.
This pretrial motion if won would have gotten the charges dismissed or at least more discovery in search of Nyhus’ motives. In most cases only such discovery can prove discriminatory intent. A defendant that cannot show effect with some evidence of intent is typically denied the discovery that would include any proof of intent that might exist. Proof of intent is also rarely considered good enough absent a smoking gun like one in United States v. Mumphrey, 183 F. Supp 1040 (ND Cal 2016). In that case cops were on tape making racist statements in a case where only blacks were among defendants in a drug sting targeting an ethnically diverse area. This case concluded with a guilty plea to the lesser offense of assault without injury and an appellate waiver. Had the case gone to trial and there was a conviction this denial would have been appealed.#gregnyhus #selectiveprosecution #matthewpreuitt #mikereese
SCOTUS has upheld selective prosecution claims when it has been shown that the prosecution “had a discriminatory effect and that it was motivated by a discriminatory purpose.” United States v. Armstrong, 517 U.S. 456, 465 (1996). The government acts with a discriminatory purpose when the prosecution “was based on an arbitrary classification such as race, religion, or the exercise of constitutional rights.” United States v. Darif, 446 F.3d 701, 708 (7th Cir. 2006). See also United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972) in which the defendant was entitled to acquittal “if his evidence proved that the authorities purposefully discriminated against those who chose to exercise their First Amendment rights.” To show discriminatory effect, Mr. Gibson must present “some evidence” that the government declined to prosecute similarly situated individuals. Armstrong, 517 U.S. at 468. The defense can do so with “a credible showing of different treatment of similarly situated persons.” Id, at 470.
The discriminatory effect in this case appears on the face of the news coverage of Gibson’s arrest so far. There are videos online (see below) that show the so called Cider Riot and those videos appear to depict a mutual fight between two groups. Both groups appear to be throwing things at, spitting at, and striking one another while screaming obscenities, but only one group is being criminally charged. The Antifa people that were also rioting outside that bar were similarly situated to Gibson.
This may seem shocking to those not familiar with how prosecutors operate in Oregon. In Oregon prosecutors will pick a side and do everything they can to white wash the side they label victims in a criminal case. That means that anything they did will be twisted to prove motive for the alleged crimes of the defendant. If what they did appears illegal they will give them a pass because if they charged them it would hurt their case. Then the prosecutor will twist anything that was done to Gibson and present it as proof of victimization. So, if someone stands on the street and says something they know will throw the man next to him into a fit, the prosecution will offer it as evidence of the speaker’s intent and use it to gain sympathy with the jury.
The discriminatory intent in this case could not be more obvious. Prosecutors have been watching Gibson for a while now and have been hoping to find something to charge him with. When law enforcement begins investigating someone because their lawful conduct makes them want to find out if they are doing anything illegal, that is a discriminatory purpose. A purpose that is not discriminatory takes place when someone is arrested based on the evidence and then the police find out that the arrested person also exercised free speech in certain ways. In this case it appears that the police took a video, looked for anything they could use against Gibson, and arrested him along with his people.
Unfortunately for Gibson, selective prosecution is a hard claim to win in this area. Even though the law clearly prohibits prosecution based in part on lawful activities, courts are reluctant to recognize it. Prosecutors will argue that although they were aware of Gibson’s speech that this prosecution is motivated entirely by the allegations against him. Judges are quick to accept this in order to avoid a situation in which notorious speakers would be free to break the law and blame their arrest on their speech. I personally lost a selective prosecution claim in federal court last year and I had a stronger argument. I was able to show that I was being investigated for running this website long before being charged, that high ranking officials were trying to build a case because of my speech, and that out of the most similarly situated people I was the only one prosecuted. Gibson will have more difficulty because court do not consider people that are treated as victims by the government as similarly situated people even if they have done substantially similar things at the same time. That is because courts consider victims in criminal cases as not being similarly situated as defendants in the case. For instance, in United States v. Taquarius Ford, No. 3:14-cr-00045-HZ (DC OR 2016). Judge Marco Hernandez refused to consider a person charged with the same crime in the same case as similarly situated because the prosecutor had since offered that person a deal to flip and become a witness. The scary thing about that is that prosecutors can defeat a selective prosecution claim by choosing to treat a similarly situated person differently after they are charged. That is why the Antifa people at the Cider Riot are not legally similar even though they appear to have done the same things in the same place at the same time.
The arrest of Joey Gibson is clearly motivated by his speech and has clearly resulted in a discriminatory effect. It is basically a green light on Gibson by law enforcement. It says that his opponents are free to do to him as they wish and if he fights back he will be arrested for anything illegal he does while they will be just fine. I can relate to Gibson. In 2012 I was stalked and harassed for my speech before being charged federally for threatening the person that had swatted my mother. Law enforcement took the position that my stalker’s emotional response to my speech was understandable and therefore they would not charge her for anything she did. Then what she did was used against me as proof of her emotional distress. I was basically green lighted. I felt like if anyone did anything to me I could not fight back and going to the police would be pointless because they would just say something like, “what did you expect?” This is how law enforcement works in the state of Oregon. They observe the public, find out what most people want, and enforce the law base on that.
Lady justice is depicted wearing a blind fold and holding an equal scale. That is because justice can only be the result of weighing the evidence equally and remaining blind to everything else. Those in charge of administering justice in Oregon do the opposite by looking at everything else and then trying to find evidence.#joeygibson #selectiveprosecution #patriotprayer #antifa #riot
This is great news for victims of Kevin Demer for whom justice has finally been served.#kevindemer #enemiesofliberty #justiceserved
Carjacking is defined under 18 U.S.C. 2119 as “Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle…from the person or presence of another by force and violence or by intimidation, or attempts to do so.” The key elements of the offense that must be met are attempting to take by force and with intent to cause serious bodily harm. That is why when I read the case against Josh Stetzer I was shocked to see him being charged with carjacking for the attempted theft of an unoccupied vehicle. Specifically, Stetzer was accused of trying to steal a parked car when the owner caught him. Stetzer allegedly pulled a gun while fleeing the scene. Even if it were proven that he was trying to take the vehicle by force when the owner arrived and he allegedly pulled the gun, nothing suggested an intent to injure the owner. Fleeing the scene suggested just the opposite.
Maybe if Stetzer had been caught jacking off in the car she would have had a better case. At least then she could have properly used the words “car” and “jacking” in the same sentence.
On top of the so called carjacking, Bolstad thought it was appropriate to charge Stetzer with possessing a firearm just because someone claimed to have seen him with a gun. As a felon this greatly frightens this author because this author knows what it is like to fear guns being planted on or near him. Now this author must fear the possibility that anyone that wants to get this author in trouble can simply say that they have witnessed this author possessing a gun. One would think that to bring such a charge prosecutors would at least need to have caught Stetzer with a gun.
So, why would Bolstad file charges against someone for a crime they clearly did not commit and another crime for which there is no real evidence? Stetzer had been serving a 15 year sentence but won his appeal and got his sentence reduced to 5 years. As a result, he ended up in a halfway house called the Northwest Regional Re-Entry Center (NWRRC) a decade before prosecutors thought he would. They were not happy about that, so when he escaped they tried to get him as much time as they could to offset the effect of him winning his appeal. In addition to the new escape charge, Bolstad filed the carjacking charge the day before the statute of limitations for that case would have expired. It turned out that the alleged carjacking was for an incident that took place 4 years and 364 days earlier. This incident was something the United States Attorney’s Office (USAO) agreed not pursue when he originally pled guilty to the charges for which he received the original 15 year sentence. In that case Stetzer pled guilty to being a felon in possession of a firearm under the Armed Career Criminal Act (ACCA), but agreed only to a contested sentence for which his appellate rights would not be waived, so by winning his appeal Stetzer did nothing that the USAO did not agree that he could do. He won his appeal because the Supreme Court decided Johnson v. United States 576 U.S. ___ (2015) and held that the residual clause of the ACCA was unconstitutionally vague, as a result Stetzer did not qualify for the ACCA and had to be resentenced.
Courts have traditionally held that vindictive prosecution takes place when the government retaliates by increasing the seriousness of the charges after a defendant exercises a constitutional or statutory right. Bolstad would not have charged Stetzer had he not won his appeal. Surprisingly and unsurprisingly, United States District Judge Anna Brown rejected Stetzer’s vindictive prosecution challenge after Bolstad cited his new escape charge and stated that the escape changed the public safety needs to be considered regarding the carjacking case. This decision is surprising because the filing of the carjacking charge appears to be motivated by the success of the appeal and any public safety needs caused by the escape should theoretically be covered by legal remedies available for escapes. At the same time it is not surprising because judges are reluctant to grant vindictive prosecution motions, they do not want to question the motives of the USAO unless they absolutely must, judges in general dislike criminals, and as a result they like finding excuses to keep them locked up even if it means bending the rules. There really is no accountability for judges like Anna Brown. The most she has to worry about is Stetzer filing another appeal and winning. The end result are judges that lack the ability to systematically apply the law regardless of their personal gut feeling and they end up twisting the law to reach the result they want instead of simply saying that the law does not support what they want to do.
It is true that intervening circumstances can justify a late filing of a charge, but case law examples make it clear that such circumstances must impact the merits of the case. Stetzer’s lawyer argued many such examples and this author read his motion in jail but does not have a copy available to make more specific citations (this author is relying on personal notes made in jail). Those cases made it clear that the intervening change needs to be something like new evidence without which Stetzer could not have been charged 4 years and 364 days earlier. Bolstad produced no such evidence. Still, Stetzer was concerned that there was be a good likelihood that Bolstad could find a jury that would not have cared if he carjacked the vehicle anymore than if he jacked off in it. A jury like that would convict him for being a criminal charged with a crime because juries like that want to find people guilty and their only real criteria is the question, “do I like this guy?”
Josh Stetzer seems to fall within a specific class of persons. Persons with criminal histories that fight for their rights. The Government likes to keep such people behind bars as long as they can by any means necessary. For prosecutors like Leah Bolstad just keeping someone like Stetzer in pre-trial detention is considered a victory whether or not it ultimately results in a conviction. In the District of Oregon there is no bail and it takes many months to resolve a case. The time and expense needed to just keep someone like Stetzer in pre-trial detention is worth it to the Government. This creates a system of pre-conviction punishment that is substantial. As long as Bolstad and others at the USAO believe that they are preventing crime by keeping people locked up on