“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 45th Parallel 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law that was no longer in effect at the time of the trial – and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 45th 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 45th Parallel 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.”
“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 45th 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 45th 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 6th,
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.
The real crime scene: Malheur County Courthouse in Vale. |
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 5th, 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 45th
Parallel investigation, and also personally escorted Esbensen to jail following
the June 6th 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 45th 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.
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Dum spiro, pugno!
5 comments:
Umm...if we had a US Supreme Court that actually functioned as the Constitution (its own flaws, not withstanding) specifies, would this sort of justice system (sic) outrage be allowed to occur?
@ non: where I hypothetically agree with you, the reality is that the Supremies are in fact functioning EXACTLY as intended by the founding statists. They're on the SAME SIDE . . . The State. Marbury v. Madison started it all off, just as planned. Hamilton's "Implied Powers" almost always got and gets the Supremies imprimatur, just as intended by amerika's founding mercantilists. Tyranny and Big Bro have been empowered and shielded nicely by their legalistic blah-blah. That worthless (to us mundanes) scrap of over-worshipped State-empowering, natural-rights-destroying POS parchment created it all with endowment of "authority", limiting nothing. Obviously! This has been amply exposed through the years by truly great americans, even at the time.
I was going to reply, but you stated it very well.
rkshanny,
Your points are well taking. The one sad part of American history being it happen was that it didn't happen sooner. That being the early morning meeting between Hamilton and Burr in Weehawken, New Jersey.
Going back a few years in recent times. When vice president Chaney shot the lawyer after having a few beers in a dove hunt, in Texas. Was the second time in history a vice president shot someone, vice president Arron Burr was the first. See there, history really does repeat itself!
Back on track on the current post. I wonder why that OR county gets away with what it is doing time and time again. Without the DOJ or the OR's AG doesn't step in with some kind of action.
hopefully Badxter will retire soon. But then his mini-me will step into his spot. Trained by Badxter; Mr. Shi*tcliff. The Good Ol' Boy Saga will go on... until it is stopped by people like Mr. Grigg who makes voters aware and hopefully DOJ or whoever is in charge of judges and DA's. It is so obvious the judges and DA's work together in these small (Baker, Malheur,Union) counties and many money hungry state paid defense attorneys whom clients have no chance at all but "GUILTY". Not very many people can afford to pay for an attorney like Gerber who wasn't afraid to speak up for her client. To actually defend him.
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