OLYMPIA — Citing “gross negligence” by Thurston County prosecutors, a judge on Tuesday dismissed charges against 16 people accused of trespassing during a protest of a military shipment at the Port of Olympia last year.
The courtroom erupted in raucous celebration when Thurston County District Court Judge Susan Dubuisson announced the dismissal of the cases, after earlier in the 31/2-hour hearing saying she wasn’t inclined to do so.
“I make that decision with great regret,” she said.
The fact that prosecutors belatedly provided the co-defendants with new reports from Thurston County Sheriff’s deputies and detectives who were on the scene during the May 30 protest forced her hand, Dubuisson said.
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As a result, she continued, the codefendants didn’t have enough time to pursue leads in the newly disclosed documents to prepare their defenses before the first of three trials was scheduled to begin next week.
Speedy trial date loomed
All of the trials had to be under way by June 25, a schedule dictated by the co-defendants’ right to a speedy trial. Dubuisson had several options to remedy the conflict between ensuring a speedy trial and giving the co-defendants adequate time to prepare their defense, including delaying the trials.
She acknowledged that dismissal was an “extraordinary remedy” but ruled it was warranted because prosecutors’ belated delivery of the new reports was “gross negligence, not timely in a big way.”
Prosecutors had requested the reports from deputies and detectives who hadn’t filed a report in the lead-up to the co-defendants’ first trial. The proceeding ended in a mistrial in late March when prosecutors obtained confidential jury information from an unnamed source that had been obtained from an e-mail listserv maintained by the codefendants.
Without telling the co-defendants, the prosecutors had requested the reports from the sheriff’s office so both sides would have more information about the incident in preparation for the new trials, said Senior Deputy Prosecuting Attorney Jim Powers, the third prosecutor to become involved in the year-old case.
“Better to have information than to try to prepare in the dark,” Powers said during a later interview, and he added that the information in the reports would benefit the co-defendants’ cases.
Larry Hildes, an attorney representing five of the codefendants, charged that the real aim of the reports — drafted nearly a year after the protest — was to manufacture evidence and fill gaps to secure a conviction during the second trials, a claim Powers refuted.
“Once again, we’re in waters where we don’t know what else they got,” Hildes said, suggesting that more information pertinent to the case was being withheld.
The misdemeanor division received most of the 10 reports — including a year-old report that the sheriff’s office initially kept confidential — on May 22, Powers said.
The co-defendants received the reports within the past few days.
Powers said the delivery had been delayed because of his efforts to get up to speed on the cases and discuss with the other two prosecutors how to proceed with the new trials.
“This is not a proportionate response to the problem,” he said of Dubuisson’s dismissal. “A more balanced solution would have been to continue the case and give them time to prepare.”
Co-defendant Phan Nguyen, who represented himself in court, said the case never should have come this far.
“It should have been over a long time ago,” he said outside the courthouse, where other co-defendants were celebrating with hugs and photos.
Their prosecution has been full of twists and turns that are unusual for a misdemeanor case.
The co-defendants were among 22 people arrested during the May 30 protest.
Demonstrators opposed using the local port to ship military equipment belonging to a Fort Lewis-based Stryker brigade to Iraq. They didn’t want the region having involvement in what they deem an illegal and immoral war.
The co-defendants were accused of sitting or lying in the port’s secured operations yard and ignoring requests by authorities to move back. Each was arrested and later charged with second-degree criminal trespass, a misdemeanor.
Last year, Dubuisson ruled that the co-defendants could argue to a jury that their law-breaking was necessary to stop the greater harm of the war. The prosecutor appealed the decision to Thurston County Superior Court, and the judge there overturned Dubuisson’s decision.
The co-defendants then were tried as a group in one of the largest single jury trials held in Thurston County District Court, which ended in the mistrial. During the trial, the co-defendants argued that the boundary of the operations yard was arbitrarily set by authorities and included property traditionally open to the public.
Prosecutors can appeal Dubuisson’s decision to dismiss the cases to Thurston County Superior Court, but Powers said there has been no decision on how to proceed.
Earlier during the court hearing, the co-defendants had asked the judge to dismiss the charges on other legal grounds and had requested that Dubuisson recuse herself because she was biased against the co-defendants. She declined.
The Port of Olympia had sought $29,000 in restitution from anyone convicted of trespassing because of two damaged gates, staff overtime and associated cleanup, and overtime for law enforcement during the protests. The co-defendants were not accused of damaging port property.
Of the other six people arrested May 30, three accepted plea agreements — two before the first trial and one during the trial.
A juvenile charged with trespassing was sent through a diversion program that leads to dismissal of the charge upon completion.
Two others were charged with riot without a firearm. Both stipulated to the facts in the police report and can have the charge dismissed if they have no contact with the port and no arrests for six months.
Dubuisson had issued a bench warrant for Nicholas Bland, one of the remaining co-defendants, after he failed to attend court hearings.
Christian Hill covers the city of Lacey and military for The Olympian. He can be reached at 360-754-5427 or firstname.lastname@example.org.