Whatcom 3: County Judge Grant Rules Out Defense Evidence

Ahead of the May 7, 2016 Trump rally in Lynden, the Whatcom 3, Neah Monteiro, Josefina Mora, and Thomas Kaplan, were arrested for forming an anti-Trump blockade on Meridian St that had blocked most of the road for about 20 min. This also resulted in an edited, partial video of the action getting national airplay on Democracy Now (also available on YouTube). The State Patrol had made their own video of the incident, and had then destroyed it months after it, and other evidence, was promptly requested by the 3’s defense attorney. The 911 recording alerting the police to the blockade had also been destroyed. State Senator Doug Ericksen, now relieved of his job working for the Trump EPA, had been in charge of the campaign that had brought Candidate Trump to Whatcom County more than a year ago, and is suspected to have influenced the police reaction to the anti-Trump protesters.

On April 6, 2017, the Whatcom County District Court had allowed the Ericksen subpoena (ordering him to release evidence of his communications with police or testify in person) to proceed with no objection from the prosecutor, Mr. Pratt. Ericksen ignored the subpoena, responding only with a letter (expressing his opinion that the subpoenaed info was not relevant), rather than a motion to quash (that is, ask the court to cancel it based on a legal reason). Defense Attorney Larry Hildes responded with a motion to hold Ericksen in contempt, which is how a court compels obedience to court orders and subpoenas.

Observers and media packing the courtroom on May 12, 2017 had to wait almost to the very end of a long motion calendar to hear discussion on what will be done about Ericksen having ignored the subpoena. District Court Judge David Grant stated he will not enforce the subpoena absent proof that the info Ericksen has will be relevant and admissible. Stereotypical to a system where judges and prosecutors diminish the effectiveness of civil disobedience by strictly limiting the issues protesters can bring up in their defense (thus herding the jury toward convicting), Grant later said he didn’t see the relevance/materiality of the arrest decision because the 3 persons were charged with Disorderly conduct, not Resisting arrest. The judge preceded his explanation by stating the issues in the case were limited to, Did the 3 obstruct traffic w/o lawful authority. Hildes, seeming offended by this, on top of previous judicial rationale, argued that the decision to arrest and how police had carried it out was relevant if the police were biased against the protesters and had made the arrest for an improper reason.

Continuing the dismissal hearing to this will take place on this Thursday, May 25, at 1:30 pm sharp, 4th floor of the courthouse, District Court room #1. Grant also refused to give the Ericksen subpoena additional weight by refusing to sign it. After proposing that Ericksen be held in contempt, Hildes proposed issuing a renewed subpoena ordering Ericksen to appear at the hearing. Grant replied that Hildes, as a practitioner of law, has authority to sign subpoenas. He, the judge, had already made a finding Ericksen is a resident. (a legal technicality Grant used to avoid subpeoning Ericksen) In a phone conversation the next day, Hildes said he will not renew his request to hold Ericksen in contempt, not because the law didn’t allow it, but because the judge is not open to the idea.

A followup to this report, covering the response to destruction of evidence, will be posted on Northwest Citizen later this week.

About Luba Pekisheva

Contributor • Kendall • Member since Jul 19, 2013

Luba is a County resident. Among other things, she draws from several years of experiencing, and standing up to, abuses and absurdities found in the judicial branch of government.

Comments by Readers

Tim Paxton

May 24, 2017
Fine article on our fine courts  It is great that NWCitizen is covering this story in detail.  Grant is keeping possibly exculpatory evidence out of the courtroom? &

Fine article on our fine courts  It is great that NWCitizen is covering this story in detail.  Grant is keeping possibly exculpatory evidence out of the courtroom?   How is that  fair?

Isn’t Ericksen the guy who recently wanted to make peaceable assembly, an act of Terrorism?   He is truly a constitutional genius.   Can we expect commenting at NWCitizen to also  be terrorism soon?

Is this the same guy who recently actually blocked smooth, freeway like,  operation of our State Legislature by going AWOL to Washington DC to take a higher paying EPA job, while taking salary from local taxpayers?    Is Ericksen going to pay us back for all the votes he missed, or worse, possibly had taken for him while in DC?   Will we see a law about  Legislative Terrorism soon?  

I  look forward to more coverage on this interesting issue.

 

 

 

 

 

Luba Pekisheva

May 24, 2017
Was Judge Grant following the law when he “ruled out [possibly exculpatory] defense evidence”? Everyone that knows me knows I’m not shy when it comes to calling judges out

Was Judge Grant following the law when he “ruled out [possibly exculpatory] defense evidence”? Everyone that knows me knows I’m not shy when it comes to calling judges out for pulling dirty tricks, but the last thing I want is to take a cheap shot at him when he’s prohibited from commenting on a pending case. For us to be fair, even in the face of unfairness, my article needs some corrections and clarifications, both to I had written (because I obtained a copy of Ericksen’s letter), and what the editor had added.  Ericksen’s political “contributions” aside, conveying the game of chess between the County and Larry Hildes is a precision art and, as always, the truth is both good enough and bad enough. Because the next hearing is tomorrow, I’m publishing the corrected paragraphs as the next comment until John is able to get to correct the published article.

I think the published headline (which wasn’t the one I submitted with my article ) sets up the readers to either villify Judge Grant by making it seem he ruled out all defense evidence, or dismiss the article under the headline as not worth being taken seriously because a judge can’t rule out all defense evidence. There is already so much dehumanization and disconnect in the legal system that I don’t want anything published under my name to contribute to it.  Guess who gets hurt the most when a judge feels there’s no point trying harder to be fair because the public is too ignorant to grasp the intricasies of the law or appreciate that judges have to follow the law even in the face of “public clamor”? The defendants, that’s who.

Let’s think about what exculpatory evidence is lost because of Grant’s rulings; the video was destroyed by WSP while prosecutors were not complying with Larry’s discovery requests for months. What was lost by Grant’s refusal to lend his authority to have Ericksen show up and be questioned and cross-examined under oath?

Luba Pekisheva

May 24, 2017
Judge Grant Rules Out Defense Evidence Relating To Decision To Arrest The Whatcom 3 ...On April 6th, 2017, District Court Judge David Grant had left it to Defense Attorney Hildes to sign Judge Grant Rules Out Defense Evidence Relating To Decision To Arrest The Whatcom 3

...On April 6th, 2017, District Court Judge David Grant had left it to Defense Attorney Hildes to sign the Ericksen subpoena (ordering him to produce evidence of his communications with police) and allowed it to proceed with no objection from the prosecutor, Mr. Pratt. After court, Hildes stated that Ericksen will have to testify in person if the subpoena yields no documents. Ericksen responded only with a letter, rather than a motion to quash (that is, ask the court to cancel it based on a legal reason).  His letter contained 3 objections, that he was immune from “civil process” during the Legislative session, the subpoenaed info was not relevant, and that the subpoena was unreasonable, oppressive and asked harassing questions. Ericksen ended the letter by stating he has no involvement in the case and does not have any of the subpoenaed documents. Larry Hildes responded by asking the court to hold Ericksen in contempt, which is how a court compels obedience to court orders and subpoenas.

The 3 accused protesters, along with observers and media packing the courtroom on May 12, had to wait almost to the very end of a long motion calendar to hear the Ericksen subpoena discussed. Judge Grant stated he will not enforce the subpoena absent proof that the info Ericksen has will be relevant and admissible. Stereotypical to a system where judges and prosecutors diminish the effectiveness of civil disobedience by strictly limiting the issues protesters can bring up in their defense (thus herding the jury toward convicting), Grant later said he didn’t see the relevance/ materiality of the arrest decision because the 3 were charged with Disorderly conduct, not Resisting arrest. The judge preceded his explanation by stating the issues in the case were limited to, Did the 3 obstruct traffic without lawful authority. Hildes, seeming offended by this, on top of previous judicial rationale, argued that the decision to arrest and how police had carried it out was relevant if the police were biased against the protesters and had made the arrest for an improper reason.

               After foreshadowing that he will rule that the Democracy Now video is “comparable” to the destroyed police video and deny the motion to dismiss, Judge Grant gave Hildes a choice to “forge ahead” or take time to read the prosecutor’s memo (that the prosecutor did not serve before the hearing) and prepare a response to what was said. Hildes chose more time over getting his motion denied then and there. Judge Grant continued the dismissal hearing to this Thursday, May 25 at 1:30 sharp. The hearing will be held in Courtroom # 1 on the 4th floor of the County Courthouse.

               Grant also refused to give the Ericksen subpoena additional weight by refusing to sign it, though the Legislature was not in session. Hildes proposed issuing a renewed subpoena ordering Ericksen to appear at the upcoming hearing. Grant replied that Hildes, as a practitioner of law, has authority to sign subpoenas; he, the judge, had already made a finding Ericksen is a resident. (As I see it, this is an illusion that court action isn’t needed, since no one was stopping Hildes from sending futile subpoenas.)

               In a phone conversation the next day, Hildes said he will not renew his request to hold Ericksen in contempt, simply because the judge will not do it.

Michael Riordan

May 28, 2017
I, for one, am troubled by the destruction of potentially exculpatory evidence and the refusal of Judge Grant to take that destruction into account in these proceedings. From my (admittedly

I, for one, am troubled by the destruction of potentially exculpatory evidence and the refusal of Judge Grant to take that destruction into account in these proceedings. From my (admittedly distant) perspective, this would seem like grounds for an appeal to a higher, unbiased court. I look forward to the NW Citizen article about this issue.

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