Kangaroo Court

“If I don’t have my black robe on, I’m just like anybody else,” Oregon District Judge Gregory Baxter once pontificated from the bench. “But if I am wearing my black robe I expect my orders to be followed.”

Once he is clothed in the robes of the punitive priesthood, Baxter isn’t subject to the law, but rather its embodiment – or so he would have those not similarly attired believe.

Whatever Baxter might claim as his official job title, his actual role is not to administer justice, but to act as an arbitrageur for the prison and probation industry, and the political class whose interests it serves. That conceit was displayed to good effect during an August 28 “restitution” hearing following the trial of William Esbensen and Scott Kangas, two owners of the 45^thParallel medical marijuana co-op in Ontario, Oregon.

The judge had presided over a bench trial in which he had found Esbensen and Kangas guilty of “racketeering”  for supposedly delivering marijuana “for consideration.” That conviction was achieved under a law that was no longer in effect at the time of the trial – and that became an unpleasant memory last November when Oregon voters enacted Measure 91, which decriminalized most adult recreational use of marijuana.

The Malheur County DA’s office had sought prison terms for Esbensen and Kangas, but had to settle for probation. Now it was seeking “restitution” fees to pay the costs of the prosecution.

From Esbensen, whom the prosecution had characterized as the “ringleader” of a business enterprise that provided a legally recognized palliative medicine, the Malheur County DA’s office initially demanded $24,000 in “restitution” to defray the costs of prosecution, which were estimated to be in the neighborhood of $40,000.

“The statute which allows the court to assess prosecution costs to defendants convicted in RICO cases is unique,” Baxter explained during the restitution hearing. It is also true, he somewhat grudgingly conceded, that “Any cross examination into those costs … is fair game.”

That admission must have been welcome and unexpected news to Esbensen’s defense counsel, Susan Gerber. In a previous hearing, Gerber had tried to exercise that plenary right to cross-examination by posing a single question to Malheur County deputy DA Michael Dugan: “How much reimbursement or funding did you receive from the sheriff’s office as a result of your prosecution of the 45^th Parallel, totally?”

The words had barely been spoken before Malheur County DA Dan Norris, making one of his austerely infrequent courtroom appearances, sprang to his feet to lodge an objection.

Gerber’s question lacked “relevance,” Norris insisted, since any amount paid to the deputy DA by the sheriff’s office “still comes out of county coffers and has nothing to do with how much the defendants owe for the costs of prosecution.”

Pressed by Judge Baxter to explain the relevance of her question, Gerber pointed out if the DA’s office had been “claiming a specific amount they spent on the 45^thParallel and that they should be reimbursed that amount [but if] they’ve already been paid that amount or close to it … they’re double-dipping.” 

When Gerber explained that she intended to call Norris as a witness, Baxter’s composure evaporated.

“I am not going to do this,” he groused. “I don’t have time. I am jammed to the gills today and you’re bringing up new issues that no one has said a word to me about.”

Baxter announced a recess and stomped out of the courtroom – which in his case was in Baker City, where he was presiding by way of a video conference. This actually concluded Baxter’s work day, since he had no other cases on the docket — his claim of being “jammed to the gills” notwithstanding. He must have regarded this deception as a venial offense committed in the service of a worthy objective – in this case, preventing Gerber from examining the finances of the Malheur County DA’s office.

Within an hour, the DA’s office had filed a motion in limine to prevent Gerber from asking about “the use of County General Funds” in the prosecution of her client when the hearing resumed a week later.

“I’ve given a great deal of thought to these issues in preparation for today’s hearing,” Baxter explained at the start of the second session. “In fact, I almost never wake up thinking about cases but I did this morning; I woke up with extra time thinking about this case.”

While Baxter pondered – and perhaps even prayed about – this perplexing matter, the veil was taken from his mind and eyes of his understanding were opened.

“As I thought about this I likened it … to the allowance of requiring an adverse party to pay the attorney fees and costs of a prevailing party in a civil case,” Baxter began. He proceeded to share a parable in which a plaintiff borrowed money from family members and took out a mortgage to pay a retainer to his attorney.

After the plaintiff prevails in court, the judge will calculate the fees due to the victorious attorney and the losing party will have to pay that amount despite the fact that the plaintiff was “fronted” money by friends and lenders in order to pay the costs.

“Similarly, the Malheur County Sheriff’s office … or some other entity fronted money to the Malheur County District Attorney’s office in the prosecution of the 45^th Parallel RICO cases,” Baxter continued. “It does not alter the fact that the statute allows for the state to recoup the prosecution costs from the defendants.” Accordingly, “I am not going to allow inquiry into the monies that may have been provided to the DA’s office during the prosecution of these cases.”

Suffused with pious self-satisfaction over his supposedly Solomonic wisdom, Baxter pointedly ignored the proverbial pachyderm in the parlor:

The “other entity” who had “fronted” money to the prosecution was William Esbensen, from whom the MCSO and the DEA had seized – the more appropriate term is “stolen” – nearly $54,000 in cash that was found during a September 11, 2012 raid on his home in Boise.

The prosecution was never able to demonstrate that the money had been obtained through illicit means. Detective Brad Williams, the MCSO Deputy who headed the investigation and served the search warrant at Esbensen’s home, admitted under oath that none of the money used in “controlled buys” at the 45^th Parallel was found during the search.

These details were of no consequence once this act of armed robbery was baptized an act of “civil forfeiture.” The money – along with a little more than a gram of marijuana – was transferred to the custody of the Ada County Sheriff’s office and then forwarded to the DEA as part of the “equitable sharing” program. This is a form of multi-jurisdictional plunder in which the Feds skim a small percentage of the loot before kicking back most of it to its local affiliates – in this case, the Malheur County Sheriff’s Office.

In presentations before the Malheur County Commission, DA Norris and Deputy DA Dugan both mentioned the fact that their office would use “forfeited funds” to defray the costs of prosecuting Esbensen. That fact was also acknowledged in Dugan’s sentencing memorandum following the verdict.

Under the RICO statute, Gerber pointed out after Baxter issued his ruling, the prosecution “can certainly attempt to recoup costs regarding the investigation and prosecution as long as it’s reasonable. You know, if they’re receiving money from one party, and then getting money from other parties, they’re making a profit and that’s not `reasonable costs.’”

Baxter not only permitted the Malheur County DA’s office to “double-dip,” he imposed a peculiar form of double jeopardy on Esbensen, who was compelled to pay twice for the same prosecution – once through the funds that had been seized from his home, and a second time in the form of $18,097 in “restitution” costs imposed on him as a condition of probation.

This arrangement didn’t exhaust the depraved creativity of the DA’s office in dealing with Esbensen.

Immediately after the verdict was announced on June 6^th, Esbensen was taken to the Malheur County Jail, where he was held until September 10. During his incarceration, the deadline passed for Esbensen to pay the $18,000 demanded by the court. On September 5, the Malheur County DA’s office issued a notice of delinquency that demanded that he either pay the full sum, or make arrangements to pay it in installments, within ten days.

That letter was not received by Esbensen until November 11 – two months after his release. Thoroughly broke and understandably anxious, he scraped together a small amount and traveled to Vale to make payment arrangements. After all, according to the document in his hands – which was postmarked November 10—he had ten days to set up an installment plan.

Upon arriving at the Malheur County Courthouse, Esbensen was told by a “visibly shaking” county clerk that “she could not accept my payment – they were demanding the full amount,” he recounted to me. He was also slapped with a $5,000 collection fee.

While Esbensen tried to digest that unwelcome news, a sheriff’s deputy swaggered up to him and served notice that the DA’s office was seeking to revoke his probation and cancel the interstate compact that allowed him to report to a probation officer near his home in Boise, Idaho.

“What it came down to,” Esbensen concluded “is that the Malheur County DA didn’t want to lose control over my probation and my chances to fail.”

He had completed his jail sentence, which left him in limbo: Where would he have gone if his probation was revoked, and the interstate compact terminated?  The most obvious destination would have been the Malheur County Jail, a prospect that left Esbensen understandably terrified.

“I fear for my life,” he told me at the time. “If they put me in that jail again I don’t think I’ll be coming out alive.”

He remained on tenterhooks until January 5^th, when the DA’s office graciously allowed Esbensen to pay the full “restitution” amount – without the gratuitous collection fee – in exchange for terminating his probation outright. His ransom was paid with the help of a generous relative who, to use Judge Baxter’s idiom, “fronted” Esbensen the funds necessary to pay off his captors. The chief difference, of course, is that this benefactor used his own money, rather than confiscating the sum at gunpoint from an unwilling victim.

“It was always just about the money,” Esbensen remarked to me in the Malheur County Courthouse following his release from probation. “That’s all they ever wanted. It had nothing to do with protecting the community. It was just a shakedown operation by the `Malheur Mafia.’”

In late October, the Vale City Council voted to approve a tax on the sale of medical and recreational marijuana when Measure 91 takes effect later this year. Three members of the council also belong to the Malheur County Sheriff’s Office, which investigated Esbensen and imprisoned him for 100 days. One member of that cartel is Detective – and City Councilman – Brad Williams, who, as noted above, led the 45^thParallel investigation, and also personally escorted Esbensen to jail following the June 6^th verdict.

“Everyone knows that the State claims and exercises [a] monopoly of crime … and that it makes this monopoly as strict as it can,” wrote Albert Jay Nock in his indispensable work Our Enemy, the State.  As one facet of its sovereign criminality, the State “punishes private theft, but itself lays unscrupulous hands on anything it wants, whether the property of citizen or alien.”

It has been Bill Esbensen’s unsought privilege to examine that aspect of the State at close range, and to experience an unusually pure sample of its organized malevolence.

When he opened the 45^th Parallel in 2010, Esbensen behaved in a completely transparent fashion, doing his best to comply with existing statutes and regulations that were so complex and contradictory that they weren’t fully understood by the state Attorney General. He did this in the eager – and entirely misplaced – hope that his good faith would be reciprocated by the local political class.

After opening the facility, “we decided to have a town hall meeting and invite the sheriff, [and] the [Ontario] city police,” Esbensen testified during his trial. “We ran a newspaper article in the Argus Observer and invited the whole town to show up. We had speakers. We had a federal medical marijuana patient speak there. We had Lee Burger, a Portland attorney, speak there on the laws of medical marijuana.”

This wasn’t racketeering; it was entrepreneurial civic activism. To the politically protected predators who preside in Malheur County it was an invitation to indulge their appetite for plunder. Regrettably, that rapacious impulse will survive the effective end of marijuana prohibition in Oregon.