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To Crush a Cop-Watcher:

Prosecutorial Abuse in Ada

County, Idaho
By William Norman Grigg
Pro Libertate Blog
March 28, 2015
The prosecutor at Matthew Townsends March 19
preliminary hearing appeared to be auditioning for a
Daytime Emmy. Her subsequent performance, and that
of her colleagues, may be sufficient to earn a criminal
contempt charge.
Townsend, who is active in the Cop Watch (or police
accountability) movement, was arrested without cause
on February 2nd in Meridian, Idaho for the supposed
offense of walking away from a cop who wouldnt charge
him with an actual crime. On the eve of his hearing he
protested that mistreatment in a Facebook post
promising a shame campaign against his kidnapper,
Officer Richard Brockbank of the Meridian Police
Department and any public officials who collaborated
in that outrage.
The Meridian PD wanted to prosecute Townsend for
felonious intimidation of a state witness, a charge
without merit that summarily convicts Officer Brockbank
of cowardice. The intent was to have Townsend arrested
before or during the March 19th hearing on his resist and
obstruct charge.

Your Honor, the State has received information that Mr.

Townsend has been making threats to the Meridian
Police Department, intoned prosecutor Abbey Germaine
melodramatically. Based on that information and the
contents of that threat the State will be moving to revoke
Mr. Townsends bond. Well also be asking for a no
contact order in this matter in regards to the officer
involved in this case and any relevant family members
in that message.
The offending Facebook post expressed Townsends
intent to conduct a non-violent and legal shame
campaign that will be remembered.
Nothing therein could be construed as a threat of any
kind, let alone what is called a true threat as defined
in current case law under which the statement in
question would have to be evidence of imminent,
unlawful violence.
Seeking to disseminate his message, Townsend tagged
dozens of people including every significant media
outlet in Idaho, and several others nation-wide. He also
tagged everyone he could find who shared Officer
Brockbanks surname.
In Mr. Townsends desire to get the message out as well
as he could, he tagged a number of individuals,
explained the defendants court-appointed defense
attorney. He does not know these individuals. All he was
doing was using what Facebook would tell him, finding
every individual with the same last name as the officer,
and getting the message out.
There has never been any violence alleged, continued
the defense counsel. There has never been any threat
of violence alleged. It specifically says within the context
that was shown to the court, and was shown to counsel
here today, that hes [prepared to undertake] a

`shaming program. A non-violent program. Hes doing

exactly what Dr. Martin Luther King wanted to do hes
doing it in the age of social media. He is trying to shame
the government, which is First Amendment-protected
speech. What he did does not warrant an increase in
The intent of the Facebook post was to express a
message that shared his displeasure with the
attorney. That is absolutely the number one thing
protected by the First Amendment free speech laws.
As a reasonable person, Townsend realizes that by
tagging lots of people it apparently had the effect of
reaching a lot of people who dont have a stake in this
game, his attorney conceded. People who could be
juveniles or minors. He is happy to un-tag all of those
people. The one thing we want the court to be aware of
is that nothing that happens today should infringe on his
First Amendment right to communicate his displeasure
with the government.
That right includes the liberty to criticize, by name, the
individual who abducted Townsend under color of state
authority, as the defendants lawyer pointed out:
The officer involved in this case is a public official. It is
absolutely appropriate for him [Townsend] to continue
to use the name of that officer in his political speech.
Hes not going to the police station. Hes not going to the
police officers house. Hes not interacting with their
family, aside from this digital format. Hes happy to untag all of those people. I think this will address the issues
brought to the courts attention.
Ms. Germaines rejoinder was worthy of a junior varsity
High School debate competition.

Although the defendant has a First Amendment right to

freedom of speech, he does not have a right to commit
criminal acts while speaking, she insisted. In this case,
he did make direct threat against individuals, whether
these are cast in a violent or non-violent manner.
Germaine graduated from law school two years ago. This
isnt long enough to have forgotten the relevant case
law, which doesnt sustain her claim that a conditional
promise to carry out non-violent legal action can be
treated as a threat. This means she either never
learned that case law, or simply chose to ignore it.
Her voice groaning under the burden of affectation,
Germaine continued:
He states, and I quote, `I know where you live. That is
in direct correlation to the officer in this case, and the
officers family. Bond is appropriate in this case, Your
Honor. At this time, the defendant is a threat to the
community, and some bond is warranted.
Perhaps Germaine was hoping that youth, charm, and
apparent earnestness would overcome the deficiencies
of her argument. They didnt.
Judge Cawthon ruled in favor of the defenses objection
that prior notice of bond revision was necessary. I am
going to set the motion of the States for hearing on
March 30 at 10:30, Cawthon announced. And I will
require the state to file that motion and have it served
on [the defense] no later than Monday the 23rd.
A second hearing was necessary, Judge Cawthon
specified, in order to protect the defendants
constitutional rights in regards to any allegations of the
commission of a new crime [To] place him in the
position today of responding to those would be very
problematic from a Due Process point of view.

Having dispensed with the motion to revoke bond, Judge

Cawthon delivered a finding of fact regarding the claim
that Townsend had committed felonious intimidation of
a witness:
While it is concerning what the state is alleging, what
I dont hear is any threats related to any type of
physical harm, violence, things of that nature, to
the officer involved in this case, or his family. (Emphasis
Acting on the suggestion of Townsends attorney,
Cawthon ordered the defendant to un-tag the family
members of the officer involved in the case.
Since no evidence was presented that Townsend had
actually committed a felonious offense, Cawthon
declared, the court is imposing a pre-trial release
order in your case unsupervised, [on] conditions of the
court. Im not making you subject to the sheriffs office
on anything like that. And then we will come back on
the 30th and have this hearing related to the States
request at that time.
The evidence such as it was had been presented to
the trial judge, who made a finding of fact that it was
insufficient to justify revocation of bond. The prosecution
was not deprived of a remedy: It could present any
additional evidence against Townsend at the hearing
scheduled for March 30, unless it decided to drop the
Pending the second hearing, Officer Richard Brockbank
the poor, timid little thing would have to butch it up,
relying on his body armor, weaponry, and the intangible
yet impregnable shield of qualified immunity to protect
his vulnerable ego and sense of privilege against the
withering assault of Townsends rhetoric.

This would have solved the problem, if one had actually

existed. Instead, the Meridian Police Department and
Attorneys Office went judge-shopping.
A complaint was filed by Ada County DAs office citing a
carefully cropped and artfully dishonest rendering of
Townsends Facebook post. It was, in substance,
indistinguishable from the version of the post in which
Judge Cawthon had found no evidence of a genuine
threat. By way of an ex parte hearing, and in violation of
the existing order by the trial judge, an arrest warrant
was obtained against Townsend.
In addition to being patently unethical and undeniably
vindictive, this was quite probably illegal.
Rule 7 of the Local Rules of the District Court and
Magistrate Division for Idahos Fourth Judicial
District specifies that Ex Parte orders will be granted
only if (1) it clearly appears from specific facts shown by
affidavit or verified complaint that immediate and
irreparable injury will result to the applicant before the
adverse party or the partys attorney can be heard in
opposition, and (2) the applicants attorney has
certified to the court in writing the efforts, if any, which
have been made to give the notice and the reasons
supporting the partys claim that notice should not be
The trial court judge before whom the facts had been
presented had ruled that the supposed victim the
intrepid Juggernaut of Justice known to lesser beings as
Officer Richard Brockbank had suffered, or stood to
suffer, no injury of any kind as a result of Townsends
Facebook post.
The prosecution obviously did not make this known to its
hand-picked judge, nor did they give notice to the
defendant of the impending second complaint.

Although assistant Ada County DA Kari Higbees name

was on the complaint, Abby Germaine was the official
who routed the case to the County DAs office. She was
the one who developed the evidence such as it was
and was present when Judge Cawthon issued his ruling.
Interestingly, the officials behind this prosecution are not
willing to disclose the names of those who played the
most important roles therein.
Ms. Germaine did not directly respond to multiple direct
inquiries asking that she either confirm or deny that she
acted as prosecutor during the March 19 hearing. A
spokesperson for the Meridian City Attorneys Office
confirmed that they contract all of our prosecutions to
the Boise City Attorneys Office where Germaine is
employed in the Enterprise/Land Use division.
After I left a message on Ms. Germaines voice mail a
woman identifying herself as an attorney in the Boise
City Attorneys Office contacted me at 12:44 PM on
March 26 to tell me that because the Matthew
Townsend case is still pending, theres not much I can
comment publicly about it, including the name of the
prosecutor. When I asked for her name, that
spokeswoman replied, That, too, is confidential.
While nobody would confirm that Ms. Germaine acted as
prosecutor in the Townsend case, her name was called
by Judge Cawthon at the beginning of the hearing, as
recorded in the courtroom audio. She has just recently
begun her legal career. She is more vulnerable than her
colleagues, and in the event the matter gives rise to a
civil rights lawsuit as it should her name will be one
of the first listed in the complaint. She may be also left
to endure, by herself, the career-killing impact of a
contempt of court charge, and appropriate sanctions by
the Bar.

American Bar Associations Rule 3.8, which deals with

Special Responsibilities of a Prosecutor, instructs
prosecutors to refrain from prosecuting a charge that
the prosecutor knows is not supported by probable
Ms. Germaine had been informed by the trial judge that
no probable cause existed to charge Townsend with a
felony. She and her superiors did not disclose this to the
second magistrate, an omission that violates Rule 3.3 of
the Idaho Rules of Professional Conduct, governing
Candor to the Tribunal.
If Judge Cawthons findings were hidden from the
second judge, there should be hell to pay, opines Jerri
Lynn Ward, a veteran defense attorney from Texas. The
second judge is now a witness if Townsends attorney
files a motion for contempt.
Years ago in Texas, some CPS [Child Protective Service]
attorneys did the same thing in seeking the removal of
a child from parental custody, Ward recalls. The first
judge ruled `no, and they went to a second judge and
failed to tell him that there was already a ruling. They
got into a bunch of trouble over that.
In this case, Ward believes, if the prosecutor responsible
for Matthew Townsends arrest warrant misrepresented
facts to a second judge, her career should be over
which could apply to either Germaine, or Higbee, or both
of them.
Defense attorney Susan Gerber, who served as a deputy
state Attorney General in Oregon, offered substantially
the same assessment of the case, albeit in somewhat
empurpled language. J. Andrew Lauer, a former
prosecutor in both Colorado and Washington, presents a
more ambivalent view.

A second judge would owe more deference to an earlier

judges factual findings on a particular matter if there
were a contested hearing with witnesses, exhibits, and
such, where a judge had to decide who or what to
believe, Lauer points out. But if the first judge simply
reached a legal conclusion that even if what is alleged is
true, it is still not a crime, then thats an opinion that a
second judge could generally disagree with but should
be told about.
The prosecution did what was necessary to prevent the
second judge from being apprised of Judge Cawthons
ruling, and to avoid a contested hearing that had been
scheduled for March 30th.
Lauer believes that the
prosecution has the option of charging the defendant
sooner, in a new case regardless of how [Judge
Cawthon] would probably have ruled or will rule in the
scheduled hearing.
Waiting for an adversarial proceeding of that kind
wouldnt be satisfactory to the Meridian Police
Department and Attorneys Office. As Judge Cawthon
pointed out, the hearing was necessary to protect
Matthew Townsends due process rights, and require his
accusers to provide evidence of an actual crime.
By violating the law and existing ethical guidelines, the
Meridian City Attorneys Office, and the Ada County DAs
office, conspired no other word is suitable to
contaminate Townsends record with an illegitimate
felony arrest, in the apparent hope of caging him for at
least two days without the need to demonstrate that he
had committed any offense other than contempt of
In this fashion, to paraphrase a similarly abusive
prosecutor in another part of the Gem State,
punishment would be achieved even if the meritless
charges were eventually dismissed.

It should not be forgotten that Townsends original

infraction was to walk away from a police officer who had
refused to charge him with a crime. When Officer
Brockbank subjected him to an unlawful arrest,
Townsend did not resist in any way.
The worst facts in the police report include the officer
noting that Mr. Townsend had a sign that was conveying
a First Amendment message regarding the government,
and that he was doing it at an intersection, Townsends
attorney pointed out during his March 19 hearing. There
was no foot flight; there was no pushing, there was no
shoving, there was no fighting. He was in all other ways
cooperative except when he decided he no longer
wanted to have contact with the police which, of
course, we are absolutely allowed to do.
Although those who commit contempt of cop are
subject to severe summary punishment, that offense is
not found in Idaho Code section 18-1801, which lists
Criminal contempts. Specific mention is made,
however, of contempt of court through Willful
disobedience of any process or order lawfully issued
by any court (emphasis added). That applies to ruling
issued by Magistrate Judge Cawthon.
The real crime here, let it not be forgotten, is not an
offense to the supposed majesty of any court, but the
repeated violent abduction of an innocent and harmless
man as punishment for the peaceful exercise of his
rights. In this entire affair, Matthew Townsend has never
broken the law, and his official persecutors have never
obeyed it. No law forbids a citizen to walk away from a
police officer who refuses to charge him with a crime.
Nor is it a criminal offense to publish a Facebook post
demanding that a spurious charge arising from that
incident be dropped, and promising non-violent,

peaceful protest if that demand isnt granted. No law

authorized Richard Brockbank to arrest Matthew for the
first act, or Abbey Germaine to pursue a felony charge
for the second particularly in light of Judge Cawthons
finding that the second charge had no merit. We are
supposed to believe that those actions reside within the
discretion of public officials.Someone who is ruled by the
discretion of another is, to that extent, a slave.
The Best of William Norman Grigg
William Norman Grigg [send him mail] publishes the Pro
Libertate blog and hosts the Pro Libertate radio program
Copyright 2015 William Norman Grigg
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