The Matthew Townsend Case: Official Retaliation, Not "Witness Intimidation"

John Anderson wasn’t happy to see his wife outside his girlfriend’s residence in Coeur d’Alene, Idaho. Understandably, she wasn’t thrilled by the encounter, either. In entirely predictable fashion the confrontation got physical, and Anderson shoved his wife, thereby compounding his adultery with criminal battery.

The subsequent arrest and brief incarceration did nothing to improve Anderson’s mood. When he got out of jail, rather than apologizing to his wife – which should have been his first priority – Anderson called the cop who had arrested him, Officer Timothy Neal of the Coeur d’Alene Police Department, who was away from his desk. 

Officer Neal later reported that 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….”

According to the Idaho Supreme Court, it isn’t a form of “witness intimidation” irritate, annoy, harass, or even threaten a police officer who is planning to testify against you in court, unless the prosecution can prove that this was done for the specific purpose of either preventing the officer from testifying, or inducing him to commit perjury. A subsequent ruling expanded that principle to encompass overt acts of violence against potential witnesses.

Sarah Phelps, a bartender in Sandpoint, Idaho, contacted the police to report that a man named Mike O’Neill had sold drugs – of the non-government-approved variety – to customers in her bar. Ms. Phelps – who, as we will see, had substance issues of her own to deal with – agreed to act as a police informant and a witness against O’Neill.

Following O’Neill’s arrest, he made a phone call from jail to his nephew, Robert Sutton, in which he characterized Phelps as a “bitch” and said that “I want to see that bitch on the stand so I can look at her and f******g spit.” He made several other remarks that could be construed as an invitation for his friends to intimidate and threaten the potential witness.

On the following day, while Phelps was walking her pitbull, the dog discovered two balls of raw hamburger, which the animal quickly devoured despite his owner’s frantic efforts to stop him. In short order the dog became violently sick and was taken to a veterinarian for treatment. 

Anguished and afraid, Phelps went to her bar and downed a half-dozen screwdrivers. Somehow she made it back to her house and passed out – only to be startled awake by Sutton and his adult son, who barged into her home uninvited.

“We know that you narced,” the elder O’Neill reportedly told Phelps, caressing her cheek with the barrel of a .45 caliber handgun. “Michael told us. You’re f****d. You’re going down.” 

After delivering the threat, the Suttons left, and Phelps called the police. 

The elder Sutton was charged with burglary, aggravated assault, and felony intimidation of a witness. Owing to problems with Phelps’s credibility, the jury acquitted Sutton of the first two charges, but convicted him of witness intimidation.

As happened in the case of John Anderson, the Idaho Court of Appeals heard Sutton’s appeal, and overturned his conviction because the State had failed to prove that the hideous treatment inflicted on Phelps was intended to prevent her from testifying truthfully.

“An argument can be made that Sutton’s purpose for the alleged break-in was retaliation” against Phelps for “narcing,” instead of “affecting future testimony,” noted the Court. Whether or not they are treated as “intimidation,” violently trespassing on Phelps’s property and threatening her with a gun are of themselves grave crimes, but the jury didn’t convict Sutton of those offenses.

Prowling for Colombian hookers, perhaps?

A few years before that episode unfolded in Idaho, Alabama resident Leon Carmichael was accused of intimidating potential witnesses and DEA agents in a federal drug case. A search of Carmichael’s home following the drug-related arrest of two employees found eleven large duffel bags filled with marijuana.

After being charged with conspiracy to sell drugs and launder the proceeds, Carmichael decided to go on the offensive. A website was established – Carmichaelcase.com, which is now defunct – that published names, photographs, and other identifying information about the informants and the DEA agents involved in the case. 

“We will have photos and information on all of the courtroom participants – Defendant, Defense Attorneys, US Attorneys, DEA Agents, Informants,” announced the website. “Only public records will be published on this site. This includes all participants in this case, including their names, pictures, and statements.”

A few months later, the website was reformatted to resemble a “Wanted” poster. Visitors to the website were asked if they had “any information about these informants and agents, regardless of how insignificant you may feel it is,” and if they did were invited to contact Carmichael’s attorney. A similar message was published in the form of full-page advertisements in local newspapers.

On two occasions, the federal government filed motions seeking an injunction ordering Carmichael to take down the website. The first was summarily dismissed by US Magistrate Delores Boyd, who ruled that there wasn’t sufficient evidence of either harassment or criminal intent. The second petition led to an evidentiary hearing during which witnesses and DEA agents claimed that the website posed a credible threat to their well-being.

Sherry D. Pettis, whose name and likeness were provided by the website, told a US District Judge that the publicity made her “fearful of what people might do to [me],” causing her to flee the state. Another witness, Robert Patrick Denton, reported that he had been approached at a restaurant by a stranger who claimed that Carmichael was planning to kill him. Carmichael’s co-defendant, who had been offered a deal to turn state’s evidence, told his DEA handler that he was worried his children might be killed if he testified. Having his personal information published in an antagonistic website amplified his anxieties.

Those concerns were plausible, given that Carmichael had previously been convicted of murder, which means he was the kind of violent criminal who tends to service the market for illicit mind-altering substances under prohibition. Judge Boyd agreed that she could impose a protective order to prevent harassment of a witness, but pointed out that this only applies to conduct that inflicts “substantial emotional distress” without serving a “legitimate purpose.”

Carmichael’s website, Boyd ruled, had an entirely legitimate purpose – the collection of information to mount a defense in a criminal trial, as guaranteed in the Sixth Amendment.

The government could require Carmichael to take down his website only if it could demonstrate that the statements published therein constituted a “true threat,” Boyd concluded.

While the U.S. Supreme Court has never provided a clear definition of a “true threat,” its central precedent on the subject, the 1969 ruling in Brandenburg v. Ohio, holds that incendiary speech is protected by the First Amendment unless it displays an intent to bring about imminent, lawless action.

Under this standard, even incitements to criminal violence offered in the midst of political upheaval don’t qualify as “true” threats when they lack “imminence.” This was the finding in the 1982 decision NAACP v. Clairborne Hardware, which addressed speeches made by civil rights agitator Charles Evers during boycotts targeting Mississippi businesses accused of discrimination.

On one occasion, Evers warned that people who broke the boycott would be “disciplined.” On another, Evers told his audience that “If we catch you going in any of them racist, stores, we’re gonna break your damn neck.”

Even though this unambiguous threat of criminal aggression was offered as counterpoint to several episodes of violence, the Supreme Court insisted that such “rhetoric” did not “transcend the bounds of protected speech set forth in Brandenburg.” 

Activist: Townsend (rear center-left) at the Idaho Capitol.

Set against this body of case law, the “witness intimidation” charge filed by the Ada County DA’s office against political activist Matthew Townsend is revealed to be consummately devoid of merit, an amalgam of retaliatory viciousness and prosecutorial incompetence.

Townsend’s purported crime was to publish a Facebook post demanding that a similarly meritless charge of “resisting and obstructing” a police officer be dropped. He also promised to wage “a non-violent and legal shame campaign that will be remembered” if the officials behind the charge – including the arresting officer, Meridian Police Corporal Richard Brockbank -- didn’t withdraw it.

Through the familiar alchemy of institutional corruption, the Meridian PD and the Ada County DA’s office transmuted that eminently legitimate exercise of the right to petition for redress of grievances into a terroristic “threat.”

The Meridian PD’s “General Report” claimed that the post “named several specific members of Corporal Brockbank’s family,” which means that the “statements are threatening in nature with the intent to intimidate, influence, and harass Corporal Brockbank and prevent him from testifying as a witness.”

This description is deliberately deceptive. None of Brockbank’s family members was named in the text of the message; they were tagged because Townsend simply forwarded the message to everyone he could find who shared the officer’s surname.

In order to give the widest possible dispersal to his petition, Townsend tagged dozens of people – public officials, friends, fellow activists, and various media personalities and news outlets. Since there’s no rational basis for believing that any of those people were the target of a “threat,” the same must be true of the family members who were incidentally tagged by the message, as well.

Furthermore, an announced intention to do something legal cannot be construed as a “threat” in any sense. Even if Townsend had been sufficiently foolish to make an overt threat against Brockbank, doing so wouldn’t constitute witness intimidation under Idaho or federal case law if this was done for cathartic or retaliatory purposes.

Townsend’s message was a plea for relief from official retaliation inflicted on him by Corporal Brockbank, whose arrest was patently unlawful. The report on Townsend’s initial arrest on January 30 (not February 2, as I have mistakenly reported) makes it clear that Brockbank had no evidence of an actual offense.

Townsend educating the public about the law.

Brockbank recalls seeing Townsend – dressed as the Grim Reaper, holding an anti-tax protest sign in one hand and a plastic scythe in the other – “enter the crosswalk as the cross light was flashing.” In the middle of the crosswalk, after the “don’t walk sign had turned solid red” but before the traffic light changed, Townsend “raised both hands up approximately head height with the sign in one hand and the pick ax [sic] in the other.”

What Brockbank admits here is that he did not see Townsend commit an actual violation. 

Idaho traffic laws require pedestrians to proceed “within a marked crosswalk or within an unmarked crosswalk at an intersection” and dictates that “they shall yield the right-of-way to all vehicles” using a street or highway. Stopping within a crosswalk to hold up a protest sign is not a violation of that ordinance, and nowhere in Brockbank’s report does he offer testimony that Townsend failed to yield the right-of-way.

Nonetheless, Brockbank primly recounts, “I determined I needed to stop and speak with [Townsend] to educate him on crosswalk laws and proceeding directly across on a flashing don’t walk [sign].” Since Townsend’s conduct was legal, his understanding of the law wasn’t deficient. What aggrieved Brockbank was the fact that the protester wouldn’t admit to committing a non-existent violation, or provide identification when he wasn’t required to under Idaho state law.

“I asked [Townsend] if he wanted to go to jail for refusing to comply with me,” observed Brockbank in words that practically pout on the page. His sense of official entitlement was further offended when Townsend “said he wasn’t doing anything wrong, did not need to provide me with identification, and could not be taken to jail.”

In Townsend’s version of the encounter, he explained to the armed stranger that he wasn’t carrying identification, but supplied his name to the officer when asked to do so. This point should be easy to clarify, since Brockbank, like all Meridian patrol officers, is accoutered with a bodycam. However, the Meridian PD has not provided audio or video recordings to Townsend’s attorney, and denied my public records request for the same.

Brockbank’s documented intention in accosting Townsend was to tutor him – and the officer got schooled in the law by a mere Mundane. But having the law on one’s side avails nothing when dealing with an armed state functionary who is granted “qualified immunity” from it.

Accordingly, when Townsend ended the contact and began to cross the street, the petulant officer “told [him] I was not done with him and to stop” – that is to say, he commanded Townsend to commit the same supposed violation that had led to the initial encounter, stopping in the middle of a crosswalk. Once on the other side of the street, Brockbank arrested and handcuffed Townsend “without incident.”

As Brockbank’s report documents, he arrested Townsend without evidence that the victim had committed an offense. Brockbank simply took him into custody as punishment for refusing to comply with his arbitrary commands. In doing so, Brockbank himself committed a serious crime – an “Illegal arrest or seizure” as defined by Idaho State Code section 18-703. 

True story.

If the Meridian PD were led by people burdened with so much as a particle of honesty, the department would have dropped the charge, as Townsend demanded. Instead, as prosecutor Abbey Germaine acknowledged in court, Chief Jeff Lavey chose to escalate the retaliatory campaign against Townsend by filing an equally spurious felony charge against him, one that carries a five year prison sentence and a $50,000 fine.

Those responsible for filing that charge know – or in any case have no excuse not to know – that nothing Townsend did or said comes within a parsec of satisfying the elements of the offense as defined by the Idaho Criminal Jury Instructions -- every one of which must be “proven beyond a reasonable doubt” in order for a guilty verdict to be achieved.

But the objective is not to protect a victim, or to prove a criminal offense. It is to continue the perverse exercise in armed pedagogy begun by Corporal Brockbank, who wanted to teach an uppity Mundane his “proper” place. 

This week's Freedom Zealot Podcast deals with the Matthew Townsend case. 

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To Crush a Cop-Watcher: Prosecutorial Abuse in Ada County, Idaho

 

The hardware is impressive, but much of the real damage is done by the prosecutors.

The prosecutor at Matthew Townsend’s March 19 preliminary hearing appeared to be auditioning for a Daytime Emmy. Her subsequent performance, and that of her colleagues, may be sufficient to earn a criminal contempt charge. 

Townsend, who is active in the Cop Watch (or police accountability)  movement, was arrested without cause on February 2^nd in Meridian, Idaho for the supposed offense of walking away from a cop who wouldn’t charge him with an actual crime. On the eve of his hearing he protested that mistreatment in a Facebook post promising a “shame campaign” against his kidnapper, Officer Richard Brockbank of the Meridian Police Department – and any public officials who collaborated in that outrage.

The Meridian PD wanted to prosecute Townsend for felonious “intimidation of a state witness,” a charge without merit that summarily convicts Officer Brockbank of cowardice. The intent was to have Townsend arrested before or during the March 19^th hearing on his “resist and obstruct” charge. 

“Your Honor, the State has received information that Mr. Townsend has been making threats to the Meridian Police Department,” intoned prosecutor Abbey Germaine melodramatically. “Based on that information and the contents of that threat the State will be moving to revoke Mr. Townsend’s bond. We’ll also be asking for a no contact order in this matter in regards to the officer involved in this case and any relevant family members in that message.”

Happier times: Matt responsibly enjoys an adult beverage.

The offending Facebook post expressed Townsend’s intent to conduct “a non-violent and legal shame campaign that will be remembered.” 

Nothing therein could be construed as a threat of any kind, let alone what is called a “true threat” as defined in current case law – under which the statement in question would have to be evidence of imminent, unlawful violence.

Seeking to disseminate his message, Townsend tagged dozens of people – including every significant media outlet in Idaho, and several others nation-wide. He also tagged everyone he could find who shared Officer Brockbank’s surname.

“In Mr. Townsend’s desire to get the message out as well as he could, he tagged a number of individuals,” explained the defendant’s court-appointed defense attorney. “He does not know these individuals. All he was doing was using what Facebook would tell him, finding every individual with the same last name as the officer, and getting the message out.”

“There has never been any violence alleged,” continued the defense counsel. “There has never been any threat of violence alleged. It specifically says within the context that was shown to the court, and was shown to counsel here today, that he’s [prepared to undertake] a `shaming’ program. A non-violent program. He’s doing exactly what Dr. Martin Luther King wanted to do – he’s doing it in the age of social media. He is trying to shame the government, which is First Amendment-protected speech. What he did does not warrant an increase in bond.”

The intent of the Facebook post was to express “a message that shared his displeasure with the government’s actions,” emphasized Townsend’s attorney. “That is absolutely the number one thing protected by the First Amendment free speech laws.”

As a reasonable person, Townsend “realizes that by tagging lots of people it apparently had the effect of reaching a lot of people who don’t have a stake in this game,” his attorney conceded. “People who could be juveniles or minors. He is happy to un-tag all of those people. The one thing we want the court to be aware of is that nothing that happens today should infringe on his First Amendment right to communicate his displeasure with the government.”

That right includes the liberty to criticize, by name, the individual who abducted Townsend under color of “state authority,” as the defendant’s lawyer pointed out: 

“The officer involved in this case is a public official. It is absolutely appropriate for him [Townsend] to continue to use the name of that officer in his political speech. He’s not going to the police station. He’s not going to the police officer’s house. He’s not interacting with their family, aside from this digital format. He’s happy to un-tag all of those people. I think this will address the issues brought to the court’s attention.”

Germaine (from her Facebook page).

Ms. Germaine’s rejoinder was worthy of a junior varsity High School debate competition. 

“Although the defendant has a First Amendment right to freedom of speech, he does not have a right to commit criminal acts while speaking,” she insisted. “In this case, he did make direct threat against individuals, whether these are cast in a violent or non-violent manner.”

Germaine graduated from law school two years ago. This isn’t long enough to have forgotten the relevant case law, which doesn’t sustain her claim that a conditional promise to carry out “non-violent” legal action can be treated as a “threat.” This means she either never learned that case law, or simply chose to ignore it. 

Her voice groaning under the burden of affectation, Germaine continued:

“He states, and I quote, `I know where you live.’ That is in direct correlation to the officer in this case, and the officer’s family. Bond is appropriate in this case, Your Honor…. At this time, the defendant is a threat to the community, and some bond is warranted.”

Perhaps Germaine was hoping that youth, charm, and apparent earnestness would overcome the deficiencies of her argument. They didn’t.

Judge Cawthon ruled in favor of the defense’s objection that prior notice of bond revision was necessary.

“I am going to set the motion of the State’s for hearing on March 30 at 10:30,” Cawthon announced. “And I will require the state to file that motion and have it served on [the defense] no later than Monday the 23^rd.”

A second hearing was necessary, Judge Cawthon specified, in order to protect the defendant’s “constitutional rights in regards to any allegations of the commission of a new crime… [To] place him in the position today of responding to those would be very problematic from a Due Process point of view.”

 

Respecting his rights: Judge Cawthon.

Having dispensed with the motion to revoke bond, Judge Cawthon delivered a finding of fact regarding the claim that Townsend had committed felonious intimidation of a witness:

“While it is concerning what the state is alleging, what I don’t hear is any threats related to any type of physical harm, violence, things of that nature, to the officer involved in this case, or his family.” (Emphasis added.) 

Acting on the suggestion of Townsend’s attorney, Cawthon ordered the defendant “to un-tag the family members of the officer involved in the case.”

Since no evidence was presented that Townsend had actually committed a felonious offense, Cawthon declared, “the court is … imposing a pre-trial release order in your case – unsupervised, [on] conditions of the court. I’m not making you subject to the sheriff’s office on anything like that…. And then we will come back on the 30^th and have this hearing related to the State’s request at that time.”

The evidence – such as it was – had been presented to the trial judge, who made a finding of fact that it was insufficient to justify revocation of bond. The prosecution was not deprived of a remedy: It could present any additional evidence against Townsend at the hearing scheduled for March 30, unless it decided to drop the charges. 

Pending the second hearing, Officer Richard Brockbank – the poor, timid little thing – would have to butch it up, relying on his body armor, weaponry, and the intangible yet impregnable shield of “qualified immunity” to protect his vulnerable ego and sense of privilege against the withering assault of Townsend’s rhetoric. 

This would have solved the problem, if one had actually existed. Instead, the Meridian Police Department and Attorney’s Office went judge-shopping.

A complaint was filed by Ada County DA’s office citing a carefully cropped – and artfully dishonest – rendering of Townsend’s Facebook post. It was, in substance, indistinguishable from the version of the post in which Judge Cawthon had found no evidence of a genuine threat. By way of an ex parte hearing, and in violation of the existing order by the trial judge, an arrest warrant was obtained against Townsend. 

In addition to being patently unethical and undeniably vindictive, this was quite probably illegal. 

Rule 7 of the “Local Rules of the District Court and Magistrate Division” for Idaho’s Fourth Judicial District specifies that Ex Parte orders “will be granted only if (1) it clearly appears from specific facts shown by affidavit or verified complaint that immediate and irreparable injury … will result to the applicant before the adverse party or the party’s attorney can be heard in opposition, and (2) the applicant’s attorney … has certified to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the party’s claim that notice should not be required.”

Can they defend poor Officer Brockbank from harsh Facebook posts?

The trial court judge before whom the facts had been presented had ruled that the supposed victim – the intrepid Juggernaut of Justice known to lesser beings as Officer Richard Brockbank – had suffered, or stood to suffer, no “injury” of any kind as a result of Townsend’s Facebook post. 

The prosecution obviously did not make this known to its hand-picked judge, nor did they give notice to the defendant of the impending second complaint. 

Although assistant Ada County DA Kari Higbee’s name was on the complaint, Abby Germaine was the official who “routed” the case to the County DA’s office. She was the one who developed the evidence – such as it was – and was present when Judge Cawthon issued his ruling. Interestingly, the officials behind this prosecution are not willing to disclose the names of those who played the most important roles therein.

Ms. Germaine did not directly respond to multiple direct inquiries asking that she either confirm or deny that she acted as prosecutor during the March 19 hearing. A spokesperson for the Meridian City Attorney’s Office confirmed that they “contract all of our prosecutions to the Boise City Attorney’s Office" -- where Germaine is employed in the Enterprise/Land Use division.

After I left a message on Ms. Germaine's voice mail a woman identifying herself as “an attorney in the Boise City Attorney’s Office” contacted me at 12:44 PM on March 26 to tell me that “because the Matthew Townsend case is still pending, there’s not much I can comment publicly about it,” including the name of the prosecutor. When I asked for her name, that spokeswoman replied, “That, too, is confidential.”

While nobody would confirm that Ms. Germaine acted as prosecutor in the Townsend case, her name was called by Judge Cawthon at the beginning of the hearing, as recorded in the courtroom audio. She has just recently begun her legal career. She is more vulnerable than her colleagues, and in the event the matter gives rise to a civil rights lawsuit – as it should – her name will be one of the first listed in the complaint. She may be also left to endure, by herself, the career-killing impact of a contempt of court charge, and appropriate sanctions by the Bar. 

American Bar Association’s Rule 3.8, which deals with “Special Responsibilities of a Prosecutor,” instructs prosecutors to “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” 

Ms. Germaine had been informed by the trial judge that no probable cause existed to charge Townsend with a felony. She and her superiors did not disclose this to the second magistrate, an omission that violates Rule 3.3 of the “Idaho Rules of Professional Conduct,” governing “Candor to the Tribunal.”

If Judge Cawthon’s findings “were hidden from the second judge, there should be hell to pay,” opines Jerri Lynn Ward, a veteran defense attorney from Texas. The second judge “is now a witness” if Townsend’s attorney files a motion for contempt.

“Years ago in Texas, some CPS [Child Protective Service] attorneys did the same thing” in seeking the removal of a child from parental custody, Ward recalls. “The first judge ruled `no,’ and they went to a second judge and failed to tell him that there was already a ruling. They got into a bunch of trouble over that.”

In this case, Ward believes, if the prosecutor responsible for Matthew Townsend’s arrest warrant “misrepresented facts to a second judge, her career should be over” – which could apply to either Germaine, or Higbee, or both of them.

Defense attorney Susan Gerber, who served as a deputy state Attorney General in Oregon, offered substantially the same assessment of the case, albeit in somewhat empurpled language. J. Andrew Lauer, a former prosecutor in both Colorado and Washington, presents a more ambivalent view.

“A second judge would owe more deference to an earlier judge’s factual findings on a particular matter if there were a contested hearing with witnesses, exhibits, and such, where a judge had to decide who or what to believe,” Lauer points out. “But if the first judge simply reached a legal conclusion that even if what is alleged is true, it is still not a crime, then that’s an opinion that a second judge could generally disagree with – but should be told about.”

The prosecution did what was necessary to prevent the second judge from being apprised of Judge Cawthon’s ruling, and to avoid a “contested hearing” that had been scheduled for March 30^th.  Lauer believes that the prosecution has "the option of charging the defendant sooner, in a new case ... regardless of how [Judge Cawthon] would probably have ruled or will rule" in the scheduled hearing.

Waiting for an adversarial proceeding of that kind wouldn’t be satisfactory to the Meridian Police Department and Attorney’s Office. As Judge Cawthon pointed out, the hearing was necessary to protect Matthew Townsend’s due process rights, and require his accusers to provide evidence of an actual crime. 

Clean up this mess: Ada County DA Jan Bennetts.

By violating the law and existing ethical guidelines, the Meridian City Attorney’s Office, and the Ada County DA’s office, conspired – no other word is suitable – to contaminate Townsend’s record with an illegitimate felony arrest, in the apparent hope of caging him for at least two days without the need to demonstrate that he had committed any offense other than “contempt of cop.”

In this fashion, to paraphrase a similarly abusive prosecutor in another part of the Gem State, “punishment would be achieved” -- even if the meritless charges were eventually dismissed.

It should not be forgotten that Townsend’s original infraction was to walk away from a police officer who had refused to charge him with a crime. When Officer Brockbank subjected him to an unlawful arrest, Townsend did not resist in any way.

 

Gadfly: Matt Townsend's 2014 campaign sign.

“The worst facts in the police report include the officer noting that Mr. Townsend had a sign that was conveying a First Amendment message regarding the government, and that he was doing it at an intersection,” Townsend’s attorney pointed out during his March 19 hearing. “There was no foot flight; there was no pushing, there was no shoving, there was no fighting. He was in all other ways cooperative except when he decided he no longer wanted to have contact with the police – which, of course, we are absolutely allowed to do.”

Although those who commit “contempt of cop” are subject to severe summary punishment, that offense is not found in Idaho Code section 18-1801, which lists “Criminal contempts.” Specific mention is made, however, of “contempt of court” through “Willful disobedience of any process or order lawfully issued by any court” (emphasis added). That applies to ruling issued by Magistrate Judge Cawthon.

The real crime here, let it not be forgotten, is not an offense to the supposed majesty of any court, but the repeated violent abduction of an innocent and harmless man as punishment for the peaceful exercise of his rights. 

In this entire affair, Matthew Townsend has never broken the law, and his official persecutors have never obeyed it. No law forbids a citizen to walk away from a police officer who refuses to charge him with a crime. Nor is it a criminal offense to publish a Facebook post demanding that a spurious charge arising from that incident be dropped, and promising non-violent, peaceful protest if that demand isn't granted.

No law authorized Richard Brockbank to arrest Matthew for the first act, or Abbey Germaine to pursue a felony charge for the second -- particularly in light of Judge Cawthon's finding that the second charge had no merit. We are supposed to believe that those actions reside within the discretion of public officials.

Someone who is ruled by the "discretion" of another is, to that extent, a slave.



(This essay has been revised from the original version with additional insights from attorney J. Andrew Lauer, for which I am appreciative.) 

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