Eugene Weekly : Viewpoint : 8.28.08

The Fix is In
Public safety vs. truth and justice
by Carol Berg-Caldwell & Amy Pincus Merwin

A pattern of conduct to inflame the public, discredit witnesses or participants and suppress political dissent has been in high gear since the May 30 Taser incident in Kesey Square. The fix is in. 

Fix #1. The Department of Homeland Security conducted undercover illegal surveillance on citizens opposing roadside pesticide spraying and called EPD to the scene. The result: multiple Tasings, indictments, EPD media spin, “blue-washing” police misconduct and considerable taxpayer costs then and to come. 

Fix #2. EPD spokeswoman Melinda Kletzok immediately issued a press release stating “witnesses reported overhearing rally participants prior to the incident planning a way to provoke a call to get police to the area,” implying plots to provoke a confrontation. Those “witnesses” were one passerby who arrived as police were apprehending Taser victim Ian VanOrnum. This witness has now said his words were misrepresented by Kletzok.

Fix #3. DA Doug Harcleroad assigned Sgt. Scott McKee, EPD Internal Affairs (IA), to investigate arrestees, witnesses, police conduct — all. Consequently, three UO students were indicted — two on felony riot charges. Sgt. McKee’s multi-hat assignment is a blatant conflict of interest.

Fix #4. Typically with ongoing investigations and potential court cases, police are reticent to comment. Yet within days, EPD Chief Robert Lehner, in an email to City Council, exonerated all officers. Curiously, after first exonerating the officers, Lehner now states, “No comment.”

Fix #5. Lehner has the final say in the complaint process. When complaints are filed with the police auditor/Civilian Review Board, IA investigates. The auditor and her board review those results, issuing recommendations to Lehner. Ignoring this voter-mandated process, Lehner chose to exonerate the police, which could sway the public or jurors in potential criminal defense or police misconduct trials. 

Fix #6. Within minutes of the incident, many appalled witnesses asked police to take their statements. Police refused though they did accept a few witness statements favorable to the police. The refused witnesses then filed complaints with the police auditor. 

Fix #7. Three witnesses requested an independent investigation. Instead a grand jury convened. After adjournment, Harcleroad said “From everything our lawyer knows, there was no criminal activity by any of these police officers.” He further implied in a KEZI interview that since the grand jury reviewed the case and issued no indictments against police, the police were innocent of any wrongdoing. None of the many witnesses who filed complaints with the police auditor testified before the grand jury. The majority of witnesses who did testify were police, along with those few witnesses whose statements favorable to police were accepted May 30. We can reasonably surmise how this grand jury was influenced to impose such serious indictments that could affect the lives, forever, of three young UO students. Ian Van Ornum, Anthony Farley and David Parziale have all pled not guilty. 

The Oregon State Bar will be asked to investigate Harcleroad’s violation of this policy: 

“A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make extrajudicial statements that the lawyer knows or reasonably should know, will be disseminated by means of public communication and will have substantial likelihood of materially prejudicing an adjunctive [connected] proceeding in the matter.” 

Surely Harcleroad, DA for 23 years, knew his interpretations of the grand jury’s decision could have a “materially prejudicial” effect on court cases involving those arrested, recently indicted or potential police misconduct cases. Harcleroad’s inferences, added to Lehner’s exoneration of the police, could sway public opinion and influence jurors.

If this does go to trial, could their comments taint a jury pool? Should defense attorneys request a change of venue? Should judges grant this? Yes. Judges can rectify damages, and the Oregon Bar could discipline Harcleroad. However, damages to public perceptions of this case will be harder to correct. 

Lehner’s full exoneration of police disregards the voter-mandated external police review process, and his withholding of a citizen complaint from the police auditor on May 22 with the DA’s consent violates city ordinances. His actions require disciplinary action. His boss, City Manager Jon Ruiz, fully exonerated Lehner within days of this violation being revealed. If Ruiz refuses to impose disciplinary action, Mayor Kitty Piercy and council must require Ruiz to hold Lehner accountable for trampling the law and the will of the voters. 

Despite the DHS’s unconstitutional policies and tactics and Harcleroad’s and Lehner’s coordinated campaign to “blue-wash” officer misconduct, supercede the auditor and review board and influence the public and potential jurors, we believe justice will prevail.

The indictments are groundless and should be thrown out.

Amy Pincus Merwin is a journalist, anti-herbicide activist and witness to the May 30 Taser incident. Carol Berg-Caldwell volunteered with the committee on the first campaign for external police review.



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