Prosecutor?s comment prompts mistrial review
Christian Hill
The Olympian
March 26, 2007
http://www.theolympian.com/112/story/72714.html

The trial of 16 people charged with trespassing during a protest at the
Port of Olympia last year might end before the first witness is called
to the stand.

Thurston County District Court Judge Susan Dubuisson said she would
consider a request for a mistrial and announce her decision today.

Defense and pro se attorneys accused the prosecutor of making a comment
during her opening statement Monday that would damage their clients?
right to a fair trial.

Deputy Prosecuting Attorney Debra Eurich told the jury the gate to the
secure port property had been removed during the May 30 protest but
added that the co-defendants weren?t accused of that action.

Larry Hildes, representing four of the co-defendants, immediately asked
for a mistrial, saying the judge had explicitly barred any mention of
the gate during the trial and that information could taint the jurors.

?They are going to be coming back and wondering who knocked down the
gate,? he said after the jury had left for the evening.

All of the co-defendants are charged with second-degree criminal
trespass, which doesn?t involve damaging property.

Eurich told Dubuisson that she interpreted the judge?s order to mean
there could be no mention during the trial of how the gate was removed.
She added the removal of the gate was an important part of that
evening?s chronology of events because it informed jurors how the
co-defendants gained access into the fenced area.

?It?s part of the story. How are they to know?? Eurich asked Dubuisson.

The judge agreed with the defense and pro se attorneys that Eurich?s
statement implied the co-defendants had something to do with the gate?s
removal, but she said she was disinclined to declare a mistrial. She
said she?d review her notes Monday night and consider the request.

?I?m very concerned about it,? she said of Eurich?s comment, and she
added that if she didn?t declare a mistrial, she would at a minimum
instruct the jury to disregard the comment.

Eurich told the jury during her opening statement that the co-defendants
were arrested and booked after they sat or lay down on the ground in the
port?s secure area and refused to heed multiple instructions from
authorities to leave.

The defense and pro se attorneys countered that the secure area has
historically been open to the public, and an ?artificial line? was
created to quash the co-defendants right to protest peacefully. The
co-defendants sat or lay down on the ground to protect themselves
against violent behavior by law enforcement, Hildes said.

*Nearly 40 arrested*

Authorities arrested nearly 40 people during a 10-day period of protests
in late May opposing the Army?s use of the port to ship supplies for the
war in Iraq.

Eurich had successfully challenged Dubuisson?s earlier ruling that the
co-defendants could argue their action was necessary to prevent the
greater harm of the war in Iraq.

As a result, Dubuisson earlier told the co-defendants their political
viewpoint is irrelevant during the trial, and they can tell the jury
only that their arrest occurred during a demonstration against the war
in Iraq.

That instruction didn?t stop Hildes and the pro se attorneys from
criticizing the war and discussing their right to civil dissent before
the jury, which drew a flurry of objections from Eurich over the
relevance of the statements to the trial.

Dubuisson eventually chided Eurich for disrupting the proceedings with
her constant objections and reiterated her earlier instruction to the
co-defendants.

?I know you?re not happy about it, but that?s the way it is,? she said.

A 17th co-defendant, Jeffery Berryhill, was severed from the trial
Monday after his lawyer withdrew from the case. Berryhill will be tried
later.

Jury selection took all day Monday. Opening statements to six jurors and
two alternates began after 5 p.m. and lasted 45 minutes.

If convicted, defendants could be required to pay restitution and $300
each for court costs.

Christian Hill covers the city of Lacey and military for The Olympian.
He can be reached at 360-754-5427 or at chill@theolympian.com.