Leniency for defendants in Portland clashes could affect Capitol riot cases

Federal prosecutors’ show of leniency for some defendants charged in the long-running unrest in the streets of Portland could have an impact on similar criminal cases stemming from the Capitol riot, lawyers say.

In recent weeks, prosecutors have approved deals in at least half a dozen federal felony cases arising from clashes between protesters and law enforcement in Oregon last summer. The arrangements — known as deferred resolution agreements — will leave the defendants with a clean criminal record if they stay out of trouble for a period of time and complete a modest amount of community service, according to defense attorneys and court records.

Some lawyers attribute the government’s newfound willingness to resolve the Portland protest cases without criminal convictions to the arrival of President Joe Biden’s administration in January and to policy and personnel changes at the Justice Department.

Those moves seemed to step away from the highly public, throw-the-book-at-them stance that President Donald Trump and then-Attorney General William Barr adopted toward lawbreakers involved in racial justice protests that swept across the country last year following the death of George Floyd during an encounter with Minneapolis police.

“Obviously there was a change in direction from Washington, and once they changed the U.S. attorney, that seemed to change the tone,” said John Kolego, a defense attorney based in Eugene, Ore., who handled one of the Portland cases.

“They had their marching orders from Barr before, but the tone is definitely changed,” Kolego said.

Five of the Portland cases in which deals were recently struck involved a felony charge of interfering with police during civil disorder. Some defendants are accused of punching or jumping on police officers during the street battles. One individual was charged after being accused of shining a high-powered green laser into the eyes of officers seeking to disperse a riot outside a police union building.

The civil disorder cases are notable because the charge of police interference is also being wielded by prosecutors in dozens of the criminal cases brought over the storming of the Capitol on Jan. 6 by pro-Trump protesters. In the Washington cases, prosecutors have filed the felony anti-riot charge in tandem with others, like obstructing an official proceeding or assaulting police officers.

Some of the assaults described in the Portland cases bear similarities to the Capitol violence. Prosecutors said one of the civil disorder defendants, Alexandra Eutin, used a wooden shield and hoses to strike a Portland police officer in the head while he was trying to make an arrest. Several Capitol riot suspects are accused of using riot shields to shove police or obstruct their efforts to secure the building from the mob.

Another Portland case recently settled through a deferred resolution agreement involved Alexa Daron Graham, who was indicted last September on a federal felony charge of pointing a laser at a small plane that the Portland Police Bureau flew during the unrest. A court filing last month said the case against Graham would be dismissed in December if she complied with the terms of the agreement.

While Justice Department headquarters in Washington loudly touted the arrests and indictments related to last summer’s unrest, a spokesperson for the U.S. Attorney’s Office in Portland said the resolutions it is reaching in those cases were not being approved by officials in Washington.

“There is no across-the-board standard being used to rule our protest cases in or out of consideration for a deferred prosecution agreement, and our office does not consult with Main Justice on when to use them,” said Kevin Sonoff, the spokesperson.

However, Sonoff said the Portland prosecutors were acting under the authority that then-Attorney General Eric Holder granted to assistant U.S. attorneys a decade ago to craft resolutions they considered appropriate in criminal cases. Trump’s first attorney general, Jeff Sessions, revoked that policy in 2017, but days after Biden’s inauguration in January, the Justice Department returned to the Holder standards that Portland prosecutors are now citing.

“Under the 2010 Holder memo on charging and sentencing, AUSAs have broad discretion on how cases are resolved,” the spokesperson said, referring to assistant U.S. attorneys.

Laurie Levenson, a former federal prosecutor who is now a law professor at Loyola Marymount University in Los Angeles, said: “Undoubtedly, defense lawyers will point to everything they can to get the most favorable resolution for their clients. Now, one thing they can point to will be the deferred prosecutions in Portland.”

Still, prosecutors in D.C. can argue that what happened there is more serious even if the physical actions of the defendants were comparable.

“Attacking the Capitol is sui generis — it’s in a category of its own,” Levenson said. “One is the seat of government and the other is not.”

One defense attorney in Washington representing Capitol riot defendants said he planned to raise the Portland cases as negotiations begin between the government and defendants over those arising from the Capitol

“I think they’re very relevant,” said the defense lawyer, who spoke on the condition of anonymity. “The individual conduct is actually not all that different: You’re at a protest that turns into a riot. … The core conduct is the same, so if people out there are getting deferred prosecution for that conduct, then my guy should be.”

Nancy Gertner, a former federal judge, said she expected Portland comparisons as defense lawyers and the government jockey over the terms of potential plea deals.

“Sure, it would be relevant … but that feels very different than entering into the Capitol,” said Gertner, now a lecturer at Harvard Law School.

Gertner said many of the Capitol cases were headed for what she called a “no-time resolution,” meaning no prison time. But she emphasized that offering a deferred prosecution with no criminal record — like the Portland deals — was really up to prosecutors, who may be reluctant to agree to them amid lingering outrage over the Jan. 6 takeover.

“I can see prosecutors not wanting to give them — and a judge can’t,” she said.

There are already signs the Portland deals could create contrasts or anomalies with the Capitol cases. While the Portland defendants now face no jail or criminal conviction in connection with assaulting law enforcement, prosecutors in Washington have sought pretrial detention in virtually all the Capitol riot cases involving alleged assaults on police.

Judges have indicated they are trying to make sure that they avoid inconsistencies in the way they handle the hundreds of Capitol cases. It is less clear whether and how that principle will apply when comparisons are made with prosecutions unrelated to the Jan. 6 riot.

“It’s very important to me that individuals who are charged with similar conduct are treated similarly,” Magistrate Judge Michael Harvey said at a bond hearing on a Capitol riot case last week. “The challenge for judges on this court is to be consistent.”

Defense lawyers are not the only ones seeking to make comparisons between the cases stemming from last summer’s unrest and the Capitol riots — so, too, are prosecutors when they see it to their advantage.

Federal prosecutors in Oregon, Ala. and elsewhere are currently seeking to beat back challenges to the constitutionality of the use of the civil disorder statute in last summer’s wave of cases, including arguments that it was passed in the 1960s as part of a racist backlash against the civil rights movement.

Some defendants have argued that the recent use of the law echoes the abuses of a half-century ago because many of those charged were involved in racial-justice protests or are Black Lives Matters supporters.

To fight those defense motions, prosecutors have noted that the Justice Department is now using the same law to charge rioters at the Capitol. The implication is that undermining the law could jeopardize the newly filed Capitol cases, although legal experts say the Capitol civil disorder cases are on firmer ground because of the obvious federal interest in the building, federal lawmakers and the presidential election.

At least one of the Portland defendants who got a deferred prosecution deal, Eva Warner, had filed a motion challenging the civil disorder statute. She agreed to drop that challenge as part of the agreement to resolve her case.

The ad hoc resolutions in the Portland cases — some of which involve postponing action on the charges for as long as a year — are similar to more formal pretrial diversion programs in place at federal courts in Los Angeles, Seattle and Boston.

“Federal courts have programs to allow people to show they have been rehabilitated,” Lisa Hay, the chief federal defender in Oregon, told POLITICO. “I think the government should always look at the facts of the case and the individual charges. We are encouraged that the government is doing that in the cases here.”

The federal District Court in D.C. where the Capitol riot defendants are charged does not have such a program, chiefly because less-serious cases in the nation’s capital are typically routed to D.C. Superior Court, which does have a diversion program of its own.

Details of the deferred resolution agreements were not presented in the court files, which contain only occasional references to community service as part of the deals. Some such arrangements were struck in riot-related cases in Oregon last year, but they generally involved shorter terms of probation.

Deferred prosecution or resolution agreements are often used in state and local courts, but are more rare in federal courts. The Justice Department has generated controversy in recent years by using such deals to resolve investigations into corporations accused of being involved in criminal activity. That led to calls by some criminal justice reformers to offer such arrangements to individuals more frequently in federal criminal cases, although they have not become widespread.

“This is not common in federal court. This is unusual,” said Kolego, the Oregon defense lawyer, adding that his client’s deal calls for her to do 30 hours of community service and to keep out of trouble for the next year.

Kolego said cellphone video of the episode with Eutin last July contradicted details in a police report.

“I think the fact that we had the cellphone video indicated there was a high likelihood she’d be acquitted by the jury and led to a sort of creative solution to agree to set this over for a year,” the defense lawyer said, referring to the deal to delay a trial in her case for a year and then dismiss it. “I believe Ms. Eutin was innocent of the charge, but it was an agreement that worked for everybody.”