Single-Serving Stalinism

The State of Idaho remains perversely determined to steal five years from the life of Matthew Townsend as punishment for publishing a defiant but harmless statement on his Facebook page.  His supposed offense was to criticize Meridian Police Officer Richard Brockbank by name, demand the dismissal of an equally spurious “resisting and obstructing” charge filed by the officer, and to promise a “non-violent and legal shame campaign” employing “peaceful but … annoying” tactics in the event that charge wasn’t dropped.

The trial, which will be a Soviet-style exercise in seeking the imprisonment of a political dissident, will begin on January 19.

Townsend, who is active in the police accountability movement, was arrested without cause on February 2, 2015 after he chose to end a conversation with Officer Brockbank. At the time, Townsend was conducting an anti-tax protest while garbed in the attire of the Grim Reaper. Pretending that there was evidence of jaywalking on Townsend’s part (although the conduct described in his incident report doesn’t meet the statutory definition of that violation), Brockbank inflicted himself on Townsend to “educate” him, which in practical terms meant trying to browbeat him into admitting to a chargeable act.

After a brief and pointless verbal exchange, Townsend — declining to play his assigned role in Brockbank’s puerile little game – asked if he was being charged with an offense. When the officer refused to answer, Townsend shrugged and walked away, which he had every legal right to do. At the time, he was not under arrest and had not been told he was being detained.

Rather than being man enough to accept that tacit rebuke from one of his betters, Brockbank petulantly assaulted and abducted Townsend, filing a cover charge of “resisting and obstructing” rather than candidly admitting that he was punishing Townsend for the grave but unlegislated offense called “contempt of cop.”

On the eve of his hearing, Townsend published a Facebook post in which he promised to mount a “shame campaign” against his kidnapper and any public officials who collaborated in that outrage unless the meritless charge was dismissed.

“The State has 3 options,” wrote Townsend. It could “drop the charges and leave me alone” – which is the course of action honest and decent people would select; “Endure my non-violent retaliation (do you want to be the focus of my rage?),” or “Kill me and deal with those that know, love, and care about me. Make your choice.”

To the extent that a “threat” was involved in Townsend’s post, it was his recognition, and clear description, of the fact that everything done in the name of the “State” carries an implied or overt threat of lethal violence against those who do not submit. Rather than threatening violence against anybody, Townsend was underscoring the fact that the State and its agents were threatening him.

In an act of intellectual inversion worthy of the East German Stasi, the Meridian Police Department filed a felony “witness intimidation” complaint against Townsend in the hope of being able to arrest him at the hearing on the misdemeanor “resist and obstruct” charge.  District Judge James Cawthon, displaying sobriety and honesty all but unknown to those in his occupation, rejected the prosecution’s request that Townsend be taken into custody, ruling that nothing in his Facebook post constituted a threat of violence against anyone.

Displaying a now-familiar alloy of pettiness and viciousness, the Meridian Police Department and the Ada County Prosecutor’s Office went judge-shopping, and through an ex parte hearing obtained an arrest warrant that resulted in an after-dark raid on his home by the Ada County Sheriff’s Office on a Friday night.

The clear intention was to arrange for him to spend the weekend in jail, which – given that Townsend, unlike his tormentors, is gainfully employed in the productive sector – would have likely caused him to lose his job.

Bail was arranged and Townsend remains employed, which means that he is able to deal with at least some of the accumulating legal expenses that have resulted from this protracted exercise in official persecution.

Townsend’s legal costs thus far amount to nearly $10,000, and that figure will climb dramatically while implacable tormentors have the luxury of spending money extracted from the legitimate earnings of better people. He has already endured severe punishment without being convicted of an offense.

The conduct of trial Judge Lynn Norton thus far suggests that she is not only a partisan of the prosecution, but – as we shall see – is actually helping it frame its case in order to manipulate the jury into ignoring the lack of evidence regarding the key element of the offense.

In order to convict Townsend of “witness intimidation,” the prosecution would have to prove that he attempted to prevent Brockbank from testifying “freely, fully and truthfully” in any court proceeding arising from the resisting and obstructing charge. That requirement is the last of nine elements of the charge of “witness intimidation” specified in the Idaho Criminal Jury Instructions dealing with that offense.

In his motion to dismiss that felony charge, Townsend’s defense attorney, Aaron Tribble, pointed out that the only evidence provided by the prosecution of witness intimidation was the Facebook post, and that statement was utterly devoid of “any mention of testimony by Officer Brockbank.”

“There needs to be some evidence linking Mr. Townsend’s comments to Brockbank’s potential testimony,” Tribble continued. “The State has nothing to offer.”

It a great deal of time for Tribble to research and compose a legal memorandum in support of his motion to dismiss the charge. It took him a little more than ten minutes to summarize his most important arguments during a January 8^thhearing before Judge Norton.

It took twenty seconds for Ada County District Attorney James Vogt to make his case for Norton to dismiss Tribble’s motion.  Vogt didn’t achieve this through incisive reasoning scintillating eloquence, but rather by simply asking Norton to dismiss the motion without bothering to present an argument on behalf of the request.

The gravamen of Tribble’s argument was that the “evidence” assembled by the prosecution, which had just recently been made available through discovery, amounted to the single Facebook post. Since the evidence assembled doesn’t cover the most critical element of the offense, there is no logical, legal, or ethical reason to proceed with the trial.

Like most functionaries of her kind, however, Judge Norton defines her role in terms of facilitating prosecution, rather than administering justice – and Vogt knew how to capitalize on that inclination.

Here is a verbatim transcript of Vogt’s “argument” in the January 8 hearing on the motion to dismiss:

“Your honor, with respect to the missing element, I would just point to the fact that there has already been a finding of probable cause by the Magistrate, Judge Gardunia. Mr. Tribble can point to nothing in the record that can contradict that, so I don’t think there’s really much else to argue about with respect to that.”

That finding of “probable cause” occurred in April, months prior to the closing of discovery in this case, which didn’t occur until last December. The Ada County DA’s office, using a familiar prosecution tactic, didn’t finish discovery until after a critical deadline had passed for the defense to file motions before Judge Norton. Despite the fact that no new evidence of a crime was developed, and the existing evidence is inadequate to justify a prosecution, Norton promptly threw out Townsend’s motion to dismiss.

This isn’t to say that she didn’t consider that motion; indeed, there’s reason to believe that she examined it carefully in order to act as a coach and a consultant for the prosecution.  If Norton honestly found Tribble’s arguments

unconvincing, she needed only say as much and reject his motion. Instead, she presented a detailed discussion of ways the prosecution could overcome the fact that Townsend never threatened Brockbank or even mentioned his testimony.

“One thing that I would want to note is that Mr. Tribble does seem to argue that there must be direct evidence to support an element,” Norton commented during the hearing. Evidence can be direct or circumstantial” for intent to intimidate, she insisted, and “the law does not differentiate between direct evidence and circumstantial evidence.”

The only “circumstantial” evidence of “intimidation” would consist of speculation, inference, and imputed motives. As the official who would rule on admissibility, Norton has indicated that she intends to give the prosecution as much latitude as it may need to make a “circumstantial” case for an offense that — by statute and precedent — requires direct evidence in order to sustain a conviction.

“The jury can consider circumstantial evidence, looking at all of the evidence as a whole and not just looking at one particular statement,” Norton declared.

While the prosecution will apparently be permitted to impute “intent” to Townsend on the basis of things he didn’t say, write, or do, Norton insisted that the defendant’s actual words are not definitive evidence of his intent.

“Just because in this particular case there was a note in that particular Facebook post where he referred to – as almost as a caveat referring to `’non-violent’ – that doesn’t mean that that’s binding on a jury to actually decide that’s what his intent was, any more than an assault is remediated just because as the person pulls the gun away from somebody’s head they say `just kidding,’” Norton asserted, reciting an argument made by the prosecution during last April’s probable cause hearing.

The tortured analogy between pointing a gun at a terrified person’s head and writing a nasty note on Facebook offers decisive proof that both the prosecution and Judge Norton know this case is without merit: Under Idaho case law, Townsend could not be convicted of witness intimidation if he had pointed a gun at Brockbank – as long as there was no direct evidence that this was done to prevent him from testifying “freely, fully, and truthfully.”

In 2011, the Idaho Court of Appeals overturned a witness intimidation conviction in which relatives of a man facing a narcotics charge, acting on the suspect’s direct request, invaded the home of a potential witness and held her at gunpoint.

Saying that he was acting on behalf of “Michael” – that is, Michael O’Neill, the jailed defendant – one of the invaders told witness Sarah Phelps, “You’re f***ed; you’re going down,” as he thrust a .45 caliber handgun in her face.

The Appeals Court recognized that because there was no direct evidence that this violent crime was committed for the purpose of “affecting future testimony,” as opposed to “retaliation,” it did not meet every element of the offense called witness intimidation.

Of course, Sarah Phelps was a mere Mundane, rather than a swaggering, armor-clad dispenser of State-sanctioned violence. During the probable cause hearing in the Townsend case last April, Brockbank strode into the courtroom in full battle array for the purpose of testifying that he is an incontinent coward who had been frightened and intimidated by Townsend’s Facebook post. In his defense, I don’t believe that Brockbank committed perjury.

The purpose of prosecuting Matthew Townsend is not merely to enforce a “safe space” for delicate creatures like Richard Brockbank; it is to demonstrate the weight of the insubstantial entity called the “State.”

During the Great Purge of the Soviet Communist Party, the Soviet forebears of the personalities employed by the Ada County DA’s Office ran across a particularly recalcitrant Old Bolshevik named Kamenev who simply refused to confess – just as Townsend had refused to concede Brockbank’s claim that he had been jaywalking.

Offended by the Muscovite’s impudent assertions of innocence, Vyshinsky’s understudies could have treated him to a “Lubyanka breakfast” — a cigarette and a bullet to the back of the head. But without a confession, the exercise would have been sterile: The entire point was to extract a confession, and to display the broken defendant to the public as proof that the state was both infallible and pitiless. This wouldn’t be accomplished by executing a man who defiantly insisted on his innocence.

Seeking guidance in dealing with the recalcitrant suspect, NKVD official named Mironov  sought an audience with Stalin, who listened intently. After the troublesome case had been described in detail, Stalin sat in quiet thought for a moment before asking an unexpected question.

“Do you know how much our state weighs, with all the factories, machines, the army, with all the armaments and the navy?” Stalin inquired. “Think it over and tell me.”

Perhaps believing that Stalin was telling a joke – and the Dear Leader was, of course, renowned for his sense of humor – Mironov reacted with a nervous chuckle.

“I am asking you, how much does all that weigh?” Stalin repeated, his eyes narrowing as he emphasized every syllable.

Sweating and stammering, Mironov replied, “Nobody can know that, Yosif Vissarionovich. It is in the realm of astronomical figures.”

“Well, can one man withstand the pressure of an astronomical weight?” Stalin prompted the thoroughly intimidated underling.

“No,” Mironov answered weakly, no doubt cringing in anticipation of what was to come.

“Now, then,” Stalin concluded in a tone of voice that could freeze magma, fixing the NKVD operative with a malicious glare, “don’t tell me any more that Kamenev, or this or that prisoner, is able to withstand that pressure. Don’t come report to me until you have in your briefcase the confession of Kamanev!”

Meridian, Idaho in 2016 obviously isn’t Moscow, Russia circa 1936 – at least in terms of the extent and pervasiveness of government-imposed injustice. The fact that Stalinesque abuse isn’t commonplace doesn’t make single-serving Stalinism any less abhorrent.

In his Facebook post, Townsend pointedly identified “the State” as the entity seeking to put him in a cage, and expressed contemptuous and entirely commendable defiance toward that malignant entity. The Meridian Police Department, the Ada County Prosecutor’s Office, and Judge Norton are display same mindset exhibited by Stalin: They are using officially sanctioned violence to crush a political dissident, for the greater glory of the murderous abstraction they serve.

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