"Absolute Immunity": The Deadliest Weapon in the Prosecutor's Arsenal

“Prosecutors are rewarded for winning at all costs, they have no incentive to seek the truth rather than a conviction, and they are entirely unaccountable when they pervert justice in pursuit of victory,” observes Idaho resident John T. Bujak. “People shouldn't believe that their innocence provides any protection. The question isn't whether you have done anything wrong, but whether the criminal justice system is going to target you – and once you're in that system, you face prohibitive odds of emerging from it without being hurt.”

This familiar complaint was voiced by an apparently unlikely plaintiff: From January 2009 until October 2010, Bujak was the elected District Attorney for Canyon County, the second-largest in Idaho. 

Bujak has spent a considerable portion of the past four years in court on the other end of the government's prisoner-manufacturing apparatus, acting as his own defense counsel in multiple trials involving charges of embezzlement and bankruptcy fraud. He is five-for-five as his own defense attorney, a record that testifies of either his considerable skill as an advocate, the poverty of the charges against him, the depth of the enmity he has inspired within the Canyon County justice system, or perhaps all three.

“My experiences illustrate the reality of prosecutorial over-reach, and the ease with which people can find themselves in court facing prison time and financial ruin over charges that have no merit,” Bujak told me during a quiet meeting in a Nampa coffee shop in the company of his wife, Crystalee. “That's why about ninety percent of the people who face federal charges accept a deal in exchange for foregoing their right to a trial. They're terrified, which is understandable, and if they wind up with a public defender they'll be fed into a plea-bargaining machine. And prosecutors know that the key to career advancement is to win convictions. This is especially true of elected prosecutors, such as district attorneys. Early in my career, one of my mentors told me that no DA ever lost a re-election campaign for being too tough on crime – and the public assumes that a high conviction rate offers the best measure of a DA's toughness.”

Bujak's outspoken criticism of his former profession might be seen by some as a product of his own recent travails. There is reason to believe that his ouster by what he calls –with little originality, but considerable vehemence – the “Good Old Boy Network” was prompted by some principled stands he took in pursuit of official accountability. 

 

He's seen both sides: Bujak prior to trial.

Alone among Idaho's 44 district attorneys, Bujak endorsed the “Uniform Post-Conviction Procedure Act,” which was created with input from the Innocence Project. That measure states that  for any conviction in which identity was the key question, and “fingerprint or forensic DNA test results demonstrate, in light of all admissible evidence, that the petitioner is not the person who committed the offense, the court shall order the appropriate relief,” which can be overturning the conviction and ordering a new trial.

“When that bill was introduced in the Legislature, the Idaho Prosecuting Attorneys Association met and determined that they would not support it,” Bujak recounted to me. That’s a group that includes not only the District Attorneys, but hundreds of deputy prosecutors and assistant prosecutors state-wide. “I was the only member of the IPAA who endorsed the bill, because I believe that truth shouldn't have an expiration date,” Bujak recalled.

Bujak’s collaboration with the Innocence Project began shortly after he entered office in 2009. In defiance of the tribal impulses of the prosecutorial class, Bujak agreed to review  the conviction of Sarah Pearce, who spent 11 years in prison for her supposed role in the horrific gang-beating and attempted murder of Linda LeBrane.

The case was cleared by the Canyon County DA's office years before Bujak's election, but in reviewing the files he became convinced that “an injustice had been done.” Significantly, one of his first personnel decisions as Canyon County DA was to ask for the resignation of Deputy DA Virginia Bond, who had prosecuted the case. Whatever else can be said about Bujak’s short-lived career as Canyon County DA, it is indisputable that his decision to reopen that case made him a lot of enemies very quickly. 

Survivor: Linda LeBrane.

Linda LeBrane, a middle-aged woman from Washington, was driving east on I-84 near Caldwell in June 2000 when she was forced off the road by a vehicle carrying three men and a young woman. The strangers dragged LeBrane from her car and demanded that she give them drugs and money. The victim eagerly surrendered all the money in her possession – a total of forty dollars and a credit card – while pleading for her life.

The assailants beat and stabbed LeBrane; one of them struck her in the head with a baseball bat. They left – but came back in a few minutes to set her car on fire. This actually proved to be her salvation: The flames attracted the attention of two young men who found LeBrane dying on the ground. She survived the attack, but was psychologically shattered by the experience.

Two years later, three suspects were arrested, one of whom, Kenneth Wurdeman, confessed to his role in the hideous crime. Investigators still hadn't found the woman who participated in the assault, who was described as a short, petite, very pretty young Hispanic woman who spoke both English and Spanish. Detective Wayne Christie, an investigator with the Canyon County Sheriff's Office, interrogated a young woman named Erica Curiel, who fit the description perfectly. She was released after reportedly passing a polygraph examination. Christie protested that decision, and was quickly given what could be considered a punitive transfer to jail duty. 

Sarah Pearce.

For reasons that have never been adequately explained, the investigation focused on a 17-year-old girl named Sarah Pearce, who was in a Job Corps program following a narcotics conviction. A jailhouse informant claimed that Pearce “ran with” one of the suspects, and that dubious assertion was the only thing connecting her to the crime. 

Unlike the suspect described by LeBrane, Pearce was a Tomboyish, red-haired, freckle-faced Anglo who spoke no Spanish and stood 5'6” tall – more than a half-foot taller than the female attacker. Importantly, Pearce was taller than LeBrane, who said that the female “ringleader”
was shorter than herself.

The descriptions offered by LeBrane and eyewitnesses who had seen the attackers either before or after the assault were an uncanny match for the three male suspects who were eventually tracked down. However, Pearce was a very poor fit with the description provided for the female. In two suspect lineups, LeBrane identified women other than Pearce as the female assailant. The other witnesses were told by the deputy conducting the line-up that one of the subjects was a “person of interest.” That statement effectively discredited the identification, since it destroyed the double-blind nature of the exercise.

One eyewitness also recalled that before being shown the subjects, a photo of Sarah Pearce was shown on a video screen – a tactic seemingly calculated to produce a sense of recognition and, therefore, a false identification. After Pearce was arrested and placed in a lineup. Detective Robert Miles, who took over from Wayne Christie as the lead investigator, told LeBrane to choose the subject who “most closely resembled” the female perpetrator – which means that her selection of Sarah Pearce was essentially useless.

Erica Curiel, July 2014.

During Pearce's trial in 2003, confessed perpetrator Kenneth Wurdeman insisted that she was not the woman who had participated in the crime. The trial judge refused to permit an expert witness for the defense, BSU psychology professor Dr. Charles Honts,  to offer a critical examination of the methods used by the Canyon County Sheriff's Office in conducting the suspect lineups. Despite the fact that Pearce was too tall, of the wrong ethnicity, spoke no Spanish, and had an alibi, she was convicted of six felonies – including attempted murder – and sentenced to a term of 15 years to life in prison.

Over the next five years, Pearce filed several appeals, all of which were rejected. Her case would have remained buried if it hadn’t been resurrected by Ginny Hatch, a BSU graduate student volunteering with the Innocence Project.

With the exception of LeBrane herself, every eyewitness contacted by Innocence Project investigators recanted his testimony identifying Pearce as the female perpetrator. Wayne Christie, who has since retired from the Canyon County Sheriff’s Office, discovered an official report stating that Curiel had actually failed the polygraph examination – a fact that was not admissible as evidence against her, but would have been useful to the defense. Prosecutor Virginia Bond withheld that knowledge from Pearce’s defense counsel, most likely because it would have been used to raise questions about the Sheriff’s curious eagerness to ignore a much better suspect in the case.

As reported in a recent installment of NBC’s Dateline program, the Innocence Project was also able to document that following the attempted murder, Erica Curiel and her accomplices had paid a visit to the Riveras, a Caldwell family of long acquaintance, in order to wash their hands and dispose of their bloody clothing. Since the parents had come to the United States without official permission, and some of the sons were familiar with the inside of a cell, the entire family was vulnerable. 

After years of refusing to cooperate with the Innocence Project’s investigation, the family – in keeping with the father’s dying wish – explained that prosecutor Virginia Bond had intimidated them into silence about their experience with Curiel, threatening to ruin their lives if they disclosed what they had seen and heard.

Ms. Bond, who is now a criminal defense attorney in Payette, denies threatening the Riveras. Bujak, her former boss, told NBC that he believes the Rivera family’s account.

Last year, Pearce filed a petition for a new trial. On several occasions the Canyon County Court scheduled hearings, only to postpone them without explanation. Last March, DA Bryan Taylor, Bujak’s successor, offered Pearce a cynical and sadistic deal: She could either accept an early release from prison (after more than 11 years in prison) and strict probation for the balance of her 15-year sentence, or spend an interminable time in prison in the hope that the courts would eventually grant her a new trial.

This proposal, Bujak pointed out to me, is typical of the tactics used by prosecutors in both plea bargain and post-conviction negotiations.

“Nearly all convictions are secured through plea bargains, often involving people who are in pre-trial detention with very limited means to defend themselves,” he observes. “So prosecutors exploit the dynamics of a person’s understandable desire to get out of jail and avoid prison. And when they’re dealing with post-conviction challenges, they are in an even stronger position.”

If Pearce had pursued a new trial and acquittal, she would almost certainly have spent additional years – perhaps even decades – in prison. One condition of parole was that she admit her guilt, which she will not do.

Knowing that she was dealing with people equipped with inexhaustible resources and bottomless reserves of malice, Pearce accepted Taylor’s offer and was released from prison in March.  This allowed Taylor, an individual possessed of the pettiness and vindictiveness one would expect from someone in his profession, to sneer that “the only truly innocent person in this sad story of senseless violence is Linda LeBrane…. Today’s hearing closes the book on the question of Sarah Pearce’s guilt – which has been proven beyond a reasonable doubt and to the satisfaction of a jury of her peers.”

Peace remains a convicted felon under a form of house arrest. Additionally, she is required to pay LeBrane $50,000 in restitution through monthly increments of fifty dollars, and faces the prospect of being sent back to prison for a parole violation if she misses three payments.

It’s clear that Taylor and his comrades at the Canyon County Sheriff’s Office are eager to seize on any excuse to return Pearce to prison, where she may share the company of Erica Curiel. Several years ago, Curiel was convicted on narcotics charges. She was briefly paroled before returning to prison after assaulting her mother.  Despite – or perhaps because of – the fact that the Innocence Project has done all of the necessary legwork to build a case against Curiel, neither the DA nor the Sheriff’s Office has shown any interest in re-opening the case – since this would mean vindicating Pearce and exposing themselves to liability.

“One of the really nasty things about our current system is the fact that post-conviction appeals are civil motions, which means that an innocently convicted person can be compelled to admit guilt in order to receive relief,” Bujak observes. “This becomes an important risk management tool, because an admission of the plaintiff's innocence would result in huge liabilities for the government responsible.”

He holds out the hope that at some point a “strong judiciary” would bring about reform by “exposing the state to liability” in cases of false conviction. However, judges have an institutional incentive to limit accountability.

“Both judges and prosecutors enjoy `absolute immunity' for their official conduct,” points out Bujak. “They are not personally liable for their official misconduct, which means that they have no flesh over the fire, so to speak.” Judges – especially those elected to their positions – are almost universally disinclined to compel prosecutors to carry out their duty under the Supreme Court's Brady v. Maryland ruling by providing potentially exculpatory evidence to the defense. 

Although it is both an ethics violation and a crime for a prosecutor to withhold evidence, it is all but impossible to find an example of a post-conviction case in which a prosecutor has been sanctioned for such behavior. This is why, in the words of Judge Alex Kozinski of the Ninth Circuit Court of Appeals, we are seeing an “epidemic” of Brady violations nation-wide.

Last December, a panel from the Ninth Circuit Court refused to hear the appeal of Kenneth Olsen, who had been convicted by a federal jury of “knowingly developing a biological agent for use as a weapon.” That conviction rested on two pillars, each of which was fractured at its base and thoroughly compromised within.

The first was an extensive – one might say “Orwellian” – review of Olsen's online activity. Within the 20,000 pages of records obtained by the Feds could be found a number of searches related to such topics as “How to Kill,” “Silent Death,” “Getting Even,” “death by poison,” and similar subjects.

The second pillar of the federal case against Olsen was “expert” testimony from Arnold Melnikoff, a forensic scientist with the Washington State Police, who insisted that a bottle of allergy pills found among Olsen's effects had been “spiked” with ricin, a deadly poison that can be made quite easily and with little expense.

Olsen's defense counsel observed, correctly, that there was considerable evidence that Melnikoff “handled and extensively manipulated” the pills before delivering them to the FBI, which confirmed his findings. Melnikoff admitted that he had unceremoniously dumped the pills onto a laboratory bench that had been contaminated with ricin. This meant that it was impossible to determine if the ricin had been insinuated into the pills, or if the pills had merely acquired a patina of the toxin after being spread on Melnikoff's contaminated work station.

At the time of the Olsen trial, Melnikoff was being investigated by the Washington State Police for “misconduct involving courtroom testimony and/or case analysis” in his previous role as head of the Montana State Crime Laboratory. An inept hair sample analysis carried out by Melnikoff led to the wrongful conviction of Jimmy Ray Bromgard, who spent 15 years in prison for supposedly raping an 8-year-old girl before he was exonerated by a DNA analysis. Washington State's investigation discovered two more wrongful convictions in Melnikoff’s background, which led to his termination. An appellate court ruled that he was “incompetent and [had] committed gross misconduct.”

The Assistant US Attorney in charge of prosecuting Kenneth Olsen was aware of the investigation into Melnikoff's job performance, and the existence of a Washington State Police report documenting his egregious and habitual misconduct. Instead of providing this information to the defense, as he was required to under Brady, the prosecutor committed misprison of perjury by allowing the examiner's defense attorney to misrepresent the investigation on the witness stand. The singularly incurious trial judge ruled that Olsen's defense attorney would not be allowed to cross-examine Melnikoff – who at the time had been placed on administrative leave in Washington – regarding the investigation into his professional conduct.

“As a result,” summarized Judge Kozinski in a justifiably caustic dissent, “the government introduced the spiked allergy pills and the jury heard Melnikoff's testimony, all without ever being informed of these serious doubts about their reliability.”

As Kozinski observed, the prosecutor “stood before the district judge and uttered falsehoods about the WSP investigation [into Melnikoff's misconduct].” This matters not, insisted the Ninth Circuit Court majority, since that the jury might have convicted Olsen solely on the basis of the material provided through government scrutiny of his extensive internet activity – which did not yield evidence of actual intent to commit a criminal act against any identified individual.

The court's ruling against Olsen “is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice,” wrote Kozinski. “It effectively announces that the prosecution need not provide exculpatory or impeaching evidence so long as it’s possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here.”

“Some prosecutors don't care about Brady,” Kozinski concludes, “because courts don't make them care.” And the behavior of the prosecutor in the Olsen case is hardly “a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors' offices across the country..... Brady violations have reached epidemic proportions in recent years.”

Bujak, who is pursuing a quixotic gubernatorial campaign as a Libertarian candidate, is agitating for enactment of a bill that would deprive prosecutors and judges of “absolute immunity” and make them personally liable – both civilly and criminally – for misconduct resulting in an unjust conviction.

“There simply cannot be power without accountability,” Bujak maintains. “We’ve been living under a system in which prosecutors ruin the lives of innocent people with impunity. They punish those who dare to insist on their right to a trial, conceal evidence without professional or personal consequence, and then require wrongfully convicted people to prolong the fiction of their guilt in order to protect the people who had sent them to prison. This isn’t going to change unless the people who administer the law are forced to live under it.”

Bujak readily concedes that there is no discernible appetite in the Idaho Legislature to enact a prosecutorial accountability law. With his professional background and formidable skills as an advocate, Bujak could find other ways to do badly needed damage to a system in which prosecutors enjoy a conviction rate higher than that achieved by their predecessors in Josef Stalin’s Soviet Union.

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"It's Strictly Business": Inside the Prohibition Racket

In addition to being an engine of misery, corruption, and bloodshed, the War on Drugs should be seen as a multi-tiered criminal enterprise.

At the top echelon are found the political figureheads who recite pious bromides. That’s likewise where we encounter the bureaucratic scribes responsible for crafting those cynical pronouncements and the legislation that gives them substance. The operational level consists of federally subsidized, hyper-aggressive law enforcement agencies that carry out military-style raids and seizures. This includes squalid undercover police operatives and the petty criminals who act as “cooperating informants,” as well as the strutting armored sociopaths who act on that “intelligence” by terrorizing people in home invasions that are typically carried out before dawn or after sunset.

Beneath the lurid violence of narcotics enforcement can be found the gray, undistinguished local bureaucrats who are actually in charge of such task as stealing property said to be “connected” to drug trafficking, caging the people from whom it was taken, and dividing up the spoils. Official transcripts from several meetings of Oregon’s Malheur County Commission provide useful insights regarding the retail-level business of that vertically integrated criminal enterprise.

The Malheur County War: SWAT raiders arrest a drug suspect.

For nearly two years, the Malheur County DA’s office, working in collaboration with the federally syndicated High Desert Drug Enforcement task force, has been milking revenue out of a September 11, 2012 raid on the 45^th Parallel, which was a medical marijuana dispensary located in Ontario, Oregon. 

Police raids were carried out against both the co-op and more than a dozen “grow sites” in both eastern Oregon and western Idaho. A total of eighteen people were eventually charged with “conspiracy” to provide medical marijuana “for consideration,” under a version of the Oregon medical marijuana law that is no longer in effect.

During an April 9 meeting of the Malheur County Commission, Deputy District Attorney Michael Dugan, an ardent prohibitionist, explained that “Under Oregon law at that time you could not sell marijuana even to another medical marijuana participant.” (Emphasis added.)

“You have to have an enterprise or an organization,” elaborated Dugan to commissioners Don Hodge and Larry Wilson. “An enterprise can be a for-profit [or] a non-profit corporation, it can be a business, it can be an association however loosely assembled.” It isn't necessary to be directly involved in a specific illegal act in order to be “wrapped up in the RICO,” Dugan told the two commissioners. In fact, “it could be the three of us if we associated to do something illegal.”

 

Dugan at a press conference, September 2012.

The purpose of the April 9 meeting was to persuade commissioners to continue funding the prosecution of William Esbensen and Raymond Kangas, the co-founders of the 45^th Parallel, who were the final defendants in the case. On June 6 they were found guilty in a bench trial of conspiring to provide medical marijuana “for consideration,” despite the fact that the statute under which they were prosecuted was dead-letter law.

Interestingly, in an earlier jury trial two other 45^th Parallel defendants, Kelly and Kerry Rhoan, were found guilty on two RICO counts but acquitted on “conspiracy” charges.

That verdict “kind of makes me cross my eyes because in order to have a RICO you have to have … an agreement to associate, and conspiracy is an agreement to commit crimes,” Dugan recounted to the Malheur County commissioners. Somehow, the only jury that rendered a verdict in the 45^th Parallel case ruled that the defendants had created an association to do something that wasn’t considered a criminal act – in this case, to distribute a legally recognized palliative medicine to people who needed it.

As it happens, the purpose of Dugan's presentation on April 9 was to entice the commissioners into underwriting what amounted to a highly lucrative illicit enterprise: Prosecuting a RICO case without a clearly established “predicate offense,” through what appears to be a fraudulent county contract with the DA’s office, in collusion with a District Judge who had obliquely indicated her willingness to inflate the charges in order to impose draconian fines that would translate into larger profits for the county.

During the September 2012 raids, Dugan boasted, “we recovered” – that is, his armed accomplices stole at gunpoint – “a number of huge globs of money so to speak.” Among those “globs” was $53,000 in cash that was seized at Esbensen’s home in Boise, money that had no proven connection to the 45^th Parallel. That stolen money “was subject to federal forfeiture,” which means it was available for “equitable sharing to … local law enforcement.” The Malheur County Sheriff’s office “received about 40 grand of that; [Sheriff Brian Wolfe] could tell you more exactly, but that goes into his forfeiture fund.”

This was explained, once again, during the April 9 commissioners’ meeting. Roughly two weeks later, Malheur County DA Dan Norris reported to the commission that $15,000 from the Sheriff’s forfeiture fund would “contribute to Mr. Dugan’s employment costs.” What this means, of course, is that the money stolen from Mr. Esbensen without due process of law would be used to fund his prosecution on charges filed under a law that was no longer in effect.

Norris asked the commission to provide “an additional $15,000 from [the] General fund to continue to contract with Mr. Dugan” and said that he would “generate additional funds needed” to underwrite the 45^th Parallel prosecutions, which would cost “a total of $40,000.” How would the prosecutor “generate” the additional funds? Would he hold a bake sale, perhaps? Of course not: He “requested [that] monies from anticipated judgments in the 45^th Parallel case be put into the revenue side of his budget” – in other words, that the prosecution would proceed in the expectation of additional forfeitures and fines.

Significantly, before the commissioners heard DA Norris’s pitch they were favored by a presentation from Circuit Court Judge Patricia Sullivan. In what one veteran attorney described to me as a clear violation of judicial ethics, Sullivan lobbied the commissioners to provide increased “resources” – that is, funding – for the DA’s office. At the time, Sullivan was presiding over the 45^th Parallel case, yet she was advocating on behalf of the prosecution’s budget priorities.

Sullivan’s role in the case was also addressed by Deputy DA Dugan during the April 9 county commission meeting, in which he described the relationship between the severity of a RICO offense and the potential windfall for the county.

“I’ve got about $35,000 in prosecution costs that I’m asking the judge to impose against the first RICO defendant” – that is, William Esbensen – “add another 2,000 or [three thousand] for the second RICO defendant and it just keeps going up that way.”

“Now, these assets, other than money that you’ve recovered [sic], I assume you’re taking vehicles…?” inquired Commissioner Hodge.

“No, this is all cash, Don,” replied DA Norris, prompting an important clarification from Dugan.

“There are some land and houses involved; I’m not sure exactly how far we’ll go in terms of that,” Dugan stated. “I know that Mr. [Esbensen] owns a number of different properties in Idaho. County Counsel would have to be, I guess, assisting in terms of how we go about getting our judgments registered in Idaho and moving forward to recover [sic] some of the properties there.” Dugan told the commissioners that “you folks have to make the decision as to how much you want … to spend in terms of going after Idaho stuff” – that is, how far they want to pursue the theft of Esbensen’s property in the name of “asset forfeiture.”

As an incentive to carry out additional seizures, Dugan predicted that Judge Sullivan would be imposing significant “compensatory fines” against Esbensen and his partner, Scott Kangas. Getting those judgments would give the DA and the county counsel’s office funding to “do the house and foreclose on the house or do bank accounts, those sorts of things,” Dugan observed.

“We’re going to have a little bit … of an advantage because paying us is going to be part of their probation,” the deputy DA gloated. “The consequence of not paying that bill is more than say not paying your phone bill.”

This is entirely true: In the latter case, a legitimate business would simply cut off its useful service from somebody who refused to pay for it; in the former, a privileged extortion ring would kidnap a victim who failed to comply with its demands, and then put him in a cage.

Under Oregon law, Dugan continued, sentences are classified in severity “from one to eleven.” As an unclassified offense, a RICO conviction can be rated anywhere along that scale.

“I’m asking the judge to classify them [the 45^th Parallel charges] at an eight,” Dugan informed the commissioners. “We’ll see what she does. An eight would be a potential prison sentence with an optional probation, and if they want to do the optional probation you can bet your bottom dollar that the optional probation is going to require a lot of payment on these prosecution costs.” (Emphasis added.)

The pronoun “she” referred to Judge Sullivan, the only female judge in the jurisdiction. By showing up at a commission meeting about two weeks later to lobby on behalf of a budget increase for the DA’s office, she clearly indicated what she intended to do if she had continued as the trial judge in the 45^th Parallel case. As it turned out, Sullivan was forced to recuse herself from the case roughly a week after her participation in the April 22 county commission meeting – a development that had interesting consequences for the prosecution during the sentencing phase, as we’ll see anon.

Under the new medical marijuana law, Dugan pointed out to the commissioners, the county would be able to “impose a tax per gram and it’ll be paid… In Colorado it’s a 21 percent tax and they’re making millions of dollars.”

Until the commission decides how it will profit directly from the sale of medical marijuana under the new law, however, there was still the business of how to extract what revenue it could out of the prosecution of people under the old law. Norris emphasized that it would be necessary to fund Dugan’s efforts to “finish the 45^th Parallel case,” then he and the commissioners would “have more in-depth discussions about additional collections and additional use of that money to see things through and do forfeitures next year. Which I think from a business standpoint would make sense.”

The “business” Norris referred to, once again, is a clearly unethical, patently immoral, and arguably illegal enterprise. In addition to its apparent collusion with Judge Sullivan, the Malheur County DA’s office had a dubious contract relationship with Dugan.

During a February 12 county commission meeting, county administrative officer Lorinda DuBois pointed out that Dugan’s contract “was up December 31^st.” This would mean that he had no authority to act on behalf of the county until and unless a new contract was completed – and this was a matter of some urgency, DA Norris insisted, because of “some issues where attorneys in the drug case are seeking sanctions against the Sheriff’s Office and I don’t have anyone working on dealing with that issue. And it’s a time bomb ticking for the Sheriff’s Office. Mr. Dugan needs to be able to get back to work” – which he apparently couldn’t do unless and until a new contract was completed.

Or – perhaps he could, according to Norris.

 

Good question: Judge Joyce.

“Now, as long as we have a temporary authorization for Mr. Dugan to return to work we certainly can wait until next week to get the paperwork done,” he told the commission.

“Is that legal?” inquired County Judge Dan Joyce, who clearly saw a problem in that proposal.

“It will be fine,” insisted an official identified as “Ms. Williams,” because “his contract’s going to be backdated to January anyway.” This is because “you really can’t do an amendment; it has to be a new contract from calendar year to calendar year,” she explained.

Yet somehow a curious document exists bearing the unwieldy title “First Amendment to Employment Agreement Between Michael T. Dugan and Malheur County Recorded with Malheur County Clear as Instrument Number 2013-0597.” That document, an impermissible amendment to a backdated (which is to say, likely fraudulent) contract, specified that Dugan’s employment “shall automatically end on June 30, 2014 or when [he] has worked 541 hours, whichever occurs first.”

There’s reason to believe that Dugan had expended his allotment of hours before the 45^th Parallel trial was over. But that matter is academic if the backdated contract itself was invalid. Although some might regard this to be a matter of petty technicalities, it should be remembered that the defendants in this case were convicted of operating a criminal conspiracy to “deliver” a legally protect medicine in ways that supposedly violated arcane provisions of a medical marijuana law that is no longer in effect.

As noted earlier, Judge Sullivan’s participation in this case was central to the prosecution’s strategy. After Sullivan was replaced by Judge Gregory Baxter, Dugan prosecuted Esbensen and Kangas as level 4 offenders. Following their conviction, Dugan asked Judge Baxter to revise – or “backdate,” if you prefer – the offenses as qualifying for level 8 sentences, which would justify the imposition of heavier “compensatory fines” – with the threat of lengthy prison sentences as leverage.

Unlike Sullivan, Baxter didn’t appear sympathetic to the financial needs of the Malheur County DA’s office. He ruled that the defendants would be sentenced under level 4 guidelines, which meant two years of probation rather than a prison term. The final amount of “compensation” has yet to be decided, but it will most likely be a less lucrative pay-out than the DA’s office had anticipated – pending additional forfeiture actions, of course. 

Police state scrimmage: Malheur County SWAT rehearses a home invasion.

From teeth to tail, the 45^th Parallel case has been a criminal enterprise on the part of the prosecution. It began with the corrupt actions of Boise-based DEA Agent Dustin Bloxham, who committed multiple felonies (including interstate wire fraud and falsifying medical records in order to obtain an Oregon medical marijuana card) during the course of an unauthorized undercover operation on a medical marijuana clinic outside his jurisdiction.

One of the key witnesses for the prosecution, Tricia Gardner, is a repeat narcotics offender and serial check forger who continues to operate a medical marijuana facility in Ontario despite a county-wide moratorium. A former staffer at the 45^th Parallel, Gardner filed the necessary paperwork to open that clinic on September 10, 2012 – the day before the task force raided the co-op.

In November, Oregon voters will consider a measure that would de-criminalize recreational use of marijuana for residents who are at least 21 years of age. As Dugan indicated to the Malheur County Commission, the loosening of restrictions on marijuana use would require updating the local plunderbund’s business plan to emphasize taxation, rather than prohibition. In the meantime, they will have to be satisfied with using whatever means are at their disposal to wring the last trickle of revenue out of Esbensen, Kangas, and their fellow victims of the prohibition racket. 

A quick note... 

The gifted and principled writer Ilana Mercer recently paid me a very high compliment by describing me as "quixotic." Like the noble (albeit unbalanced) Knight of the Sad Countenance, I  focus my energies on battles against prohibitively stronger opponents. In my case, the giants against whom I contend aren't windmills. And unlike Don Quixote, I have a family for whom I must provide. I would be humbly grateful for any help you can supply. Thank you so much, and God bless.

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