The whole point of free speech is not to make ideas exempt from criticism but to expose them to it.

Saturday, March 12, 2011

The issues to be argued March 17 in the Wisecarver case

For background on this post, scroll down to "My sentiments exactly," then read it and the intervening posts. When I quoted Paine, I had no intention to write the intervening posts, but they are illustrative of what Paine was saying.

US District Judge Richard Battey told Marc Wisecarver's jury:

"A BIA employee who goes upon private property in the performance of his duty is not a trespasser,” and “conduct otherwise a trespass is often justifiable by reason of authority vested in the person who does the act, as, for example, an officer of the law acting in the performance of a duty."

When Marc Wisecarver kept referring to the BIA guy's actions as "trespass," Judge Battey presented both an attitude and jury instructions that assured conviction, then said Wisecarver had committed "perjury" by saying a government agents act was "trespass." Battey used "perjury" as a reason to deviate upward from federal sentencing guidelines, resulting in a near doubling of what the prosecution was recommending.

Following are the principle arguments I think Gary Colbath will present on behalf of Marc Wisecarver, based on his brief, which were just posted today, I think.

First, contrary to the prosecution’s repeated statements, (PB 26, 29, 30, 31), the record does not support the district court’s factual conclusion concerning Mr. Bourne’s authority to drive a vehicle upon private property posted no trespassing without obtaining prior permission from a landowner. While Mr. Bourne may have believed he had this authority, the record offers no support for such a belief. There is no evidence of BIA regulations or handbooks giving a BIA employee the right to go upon another’s property without permission. Mr. Bourne identified no BIA policy granting him that right, and the prosecution offered no testimony from any BIA official to support Mr. Bourne’s opinion.

Second, as demonstrated in the reply to the prosecution’s statement of facts, Mr. Hughes did not give Mr. Bourne permission to enter the land. Thus, the prosecution’s statements that he entered “with the consent of the majority owner,” (PB 28), and that “he had proper permission from the majority landowner,” (PB 30), are incorrect. Mr. Bourne testified that he did not speak with Mr. Hughes prior to driving the truck on the posted land.

Third, since this was a jury trial, the district court did not have the authority to decide the factual question of whether Mr. Wisecarver reasonably believed Mr. Bourne was a trespasser. Thus, the prosecution errs by arguing “the court was well within its discretion to instruct the jury that Bourne had a legal right to be on the land in performance of his duty.” (PB 27). Instead, Instruction 8 took the factual question out of the hands of the jury by telling them, in effect, Mr. Wisecarver could not have reasonably believed Mr. Bourne to be a trespasser since the district court instructed that he was not a trespasser.

The jury should have been told that whether Mr. Bourne was trespassing either was irrelevant or was a factual question for the jury to decide. Just because he was a BIA employee acting pursuant to his duties does not resolve the question of whether he had the right to enter posted property without obtaining consent or permission from a landowner or resident of the property. Otherwise, as a BIA employee, Mr. Bourne also could have claimed the right to enter the Wisecarver home without permission to establish a rental value for the home simply because it was located on the land. In either case, whether it would be reasonable for the homeowner to consider Mr. Bourne a trespasser in fact is for the jury to decide. The district court erred by removing this factual question from the jury.

I think this demonstrates that Judge Battey is particularly well named.

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