This selective prosecution example features Assistant United States Attorney Gregory Ralph Nyhus in the selective prosecution of the owner of CopBlaster.com for creating CopBlaster.com. Selective prosecution is not just a statement of opinion. It is a technical term that requires one to show that a prosecutor had a discriminatory motive and the prosecution had a discriminatory result. Unfortunately it is far more difficult to get courts to enforce the law in selective prosecution cases than it is to prove selective prosecution or even make to make a prima facie case.
In this case the discriminatory intent was shown by providing the court with internal emails turned over by Multnomah County. The emails dated back a couple of months before the basis of the charges occurred. The emails were between former Multnomah County Sheriff's Office (MCSO) deputy Todd Shanks, Multnomah County Sheriff Michael Reese, Multnomah County Deputy District Attorney Kevin Demer, and Multnomah County District Attorney Rod Underhill. The emails indicated that a criminal investigation by MCSO Detective Kevin Odil was underway in response to the launching of the website and the owner threatening to expose problems at the Multnomah County Detention Center (MCDC) if improvements were not made while he was in jail for a violation of supervised release. This investigation was inappropriate because none of the accusations constituted a violation of the law. The emails indicated that MCSO, United States Probation Officer (USPO) Matthew Preuitt, and AUSA Gregory Nyhus were doing all they could to get a harsh sentence with the main goal of destroying this website. Then when the CopBlaster.com owner's arm was broken after throwing spicy chips at a deputy things changed. Nyhus took a bunch of unproven allegations of injury to file charges of assault with bodily injury. This charge created a presumption of dangerousness that legally required the court to favor pretrial detention without bail. There is no bail in federal court in the District of Oregon so the only choice is to release on recognizance or hold in detention. That alone was motive enough to pursue charges because no conviction was necessary for punishment to be administered. The emails between Preuitt, MCSO staff, and Nyhus made it clear that the main motivation for the prosecution was this website even though the website is not illegal. That is discriminatory intent.
The discriminatory effect was proven by finding cases of other similarly situated people that were not prosecuted. Those people were federal inmates in the Multnomah County Jails that had been referred to the MCDA for prosecution in state court for assaulting a public safety officer. To convict in those cases the elements also required assault with bodily injury on a deputy. The only difference was that in federal court the inmate would have to be in federal custody pursuant to a contract between the U.S. Marshals and MCSO. After getting a list from the MCDA of all inmates referred for APSO prosecution since 2002 it was discovered that five were in federal custody and of those five the owner of CopBlaster.com was the only one charged in federal court.
The law states that a prosecution is selective if it "had a discriminatory effect and that it was motivated by a discriminatory purpose." United States v. Armstrong, 517 U.S. 456, 465 (1996). The government acts with a discriminatory purpose when the prosecution "was based on an arbitrary classification such as race, religion, or the exercise of constitutional rights." United States v. Darif, 446 F.3d 701, 708 (7th Cir. 2006). See also United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972) in which the defendant was entitled to acquittal "if his evidence proved that the authorities purposefully discriminated against those who chose to exercise their First Amendment rights." Discriminatory effect can be proven by showing that the government declined to prosecute similarly situated individuals. Armstrong, 517 U.S. at 468. The defense can do so with "a credible showing of different treatment of similarly situated persons." Id, at 470.
With the written law so clearly favoring the defense in this case why did this defense fail? It failed because judges ultimately follow their gut. Their gut tells them that they need to do everything they possibly can to prevent people that exercise their First Amenment rights in ways that offend the police from being able to assault law enforcement personnel and then have the case dismissed by proving that the police were motivated by the speech. One could conceivable decide to give a speech intended to offend the police for the purpose of using it later as a means of defending an assault they were already planning. In this case the government tried to make an argument that those four other inmates did not have the same criminal history as the defendant but it was shown that at least two of those inmates had far worse histories. Discriminatory intent was not something Nyhus could disprove.
Unfortunately Nyhus won his argument against the showing of discriminatory effect based on the small sample size of similarly situated persons and the amount of time that transpired between most of those cases and the incident giving rise to the prosecution. That worked for him even though one of the similar cases took place after the events that led to the prosecution in this case. The court ruled in his favor even though the case law has made it clear that only a small number of people are needed. For instance in Steele there were only six similarly situated people identified that were not charged and the only other people charged were charged under identical circumstances. Steele involved a case in which only people that spoke out against the census were charged for not participating in the census. That case involved a higher percentage of people prosecuted than this case.
District court judges get away with such errors all the time because they would rather err on the side of the government and risk losing on appeal than to free someone charged with a violent crime. District court judges feel that their job to protect the community from violent crime is more important than technical legal questions and that it is better to leave questions of law for the appellate courts.
The court should have at least ordered additional discovery in this case. Additional discovery is warranted when the defendant can make a prima facie showing of selective prosecution. At that point it is on the government to produce discovery proving that selective prosecution did not exist in order to avoid dismissal. In Armstrong for instance SCOTUS held, "A defendant who is arguing that he was targeted for prosecution on the basis of race cannot compel discovery unless he or she can show that the government did not prosecute similarly situated individuals of other races." In this case others not prosecuted that did not exercise their First Amendment rights was shown but by saying there were too few the judge avoided having to order discovery.
This pretrial motion if won would have gotten the charges dismissed or at least more discovery in search of Nyhus' motives. In most cases only such discovery can prove discriminatory intent. A defendant that cannot show effect with some evidence of intent is typically denied the discovery that would include any proof of intent that might exist. Proof of intent is also rarely considered good enough absent a smoking gun like one in United States v. Mumphrey, 183 F. Supp 1040 (ND Cal 2016). In that case cops were on tape making racist statements in a case where only blacks were among defendants in a drug sting targeting an ethnically diverse area. This case concluded with a guilty plea to the lesser offense of assault without injury and an appellate waiver. Had the case gone to trial and there was a conviction this denial would have been appealed.