This article was originally going to be titled something to the effect of "Jacking Off or Carjacking, Does Leah Bolstad Know the Difference?" Because at the time that the first draft was written Assistant United States Attorney Leah Bolstad had not yet demonstrated that she does in fact know the difference between the two and because this author had not yet seen "Making a Murderer" on Netflix. The comparison between jacking off and carjacking was going to be used to make the point that although both involve jacking of some sort the two activities could not be more different and Leah Bolstad had been behaving as if she had no idea what carjacking was.
Carjacking is defined under 18 U.S.C. 2119 as "Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle...from the person or presence of another by force and violence or by intimidation, or attempts to do so." The key elements of the offense that must be met are attempting to take by force and with intent to cause serious bodily harm. That is why when I read the case against Josh Stetzer I was shocked to see him being charged with carjacking for the attempted theft of an unoccupied vehicle. Specifically, Stetzer was accused of trying to steal a parked car when the owner caught him. Stetzer allegedly pulled a gun while fleeing the scene. Even if it were proven that he was trying to take the vehicle by force when the owner arrived and he allegedly pulled the gun, nothing suggested an intent to injure the owner. Fleeing the scene suggested just the opposite.
Maybe if Stetzer had been caught jacking off in the car she would have had a better case. At least then she could have properly used the words "car" and "jacking" in the same sentence.
On top of the so called carjacking, Bolstad thought it was appropriate to charge Stetzer with possessing a firearm just because someone claimed to have seen him with a gun. As a felon this greatly frightens this author because this author knows what it is like to fear guns being planted on or near him. Now this author must fear the possibility that anyone that wants to get this author in trouble can simply say that they have witnessed this author possessing a gun. One would think that to bring such a charge prosecutors would at least need to have caught Stetzer with a gun.
So, why would Bolstad file charges against someone for a crime they clearly did not commit and another crime for which there is no real evidence? Stetzer had been serving a 15 year sentence but won his appeal and got his sentence reduced to 5 years. As a result, he ended up in a halfway house called the Northwest Regional Re-Entry Center (NWRRC) a decade before prosecutors thought he would. They were not happy about that, so when he escaped they tried to get him as much time as they could to offset the effect of him winning his appeal. In addition to the new escape charge, Bolstad filed the carjacking charge the day before the statute of limitations for that case would have expired. It turned out that the alleged carjacking was for an incident that took place 4 years and 364 days earlier. This incident was something the United States Attorney's Office (USAO) agreed not pursue when he originally pled guilty to the charges for which he received the original 15 year sentence. In that case Stetzer pled guilty to being a felon in possession of a firearm under the Armed Career Criminal Act (ACCA), but agreed only to a contested sentence for which his appellate rights would not be waived, so by winning his appeal Stetzer did nothing that the USAO did not agree that he could do. He won his appeal because the Supreme Court decided Johnson v. United States 576 U.S. ___ (2015) and held that the residual clause of the ACCA was unconstitutionally vague, as a result Stetzer did not qualify for the ACCA and had to be resentenced.
Courts have traditionally held that vindictive prosecution takes place when the government retaliates by increasing the seriousness of the charges after a defendant exercises a constitutional or statutory right. Bolstad would not have charged Stetzer had he not won his appeal. Surprisingly and unsurprisingly, United States District Judge Anna Brown rejected Stetzer's vindictive prosecution challenge after Bolstad cited his new escape charge and stated that the escape changed the public safety needs to be considered regarding the carjacking case. This decision is surprising because the filing of the carjacking charge appears to be motivated by the success of the appeal and any public safety needs caused by the escape should theoretically be covered by legal remedies available for escapes. At the same time it is not surprising because judges are reluctant to grant vindictive prosecution motions, they do not want to question the motives of the USAO unless they absolutely must, judges in general dislike criminals, and as a result they like finding excuses to keep them locked up even if it means bending the rules. There really is no accountability for judges like Anna Brown. The most she has to worry about is Stetzer filing another appeal and winning. The end result are judges that lack the ability to systematically apply the law regardless of their personal gut feeling and they end up twisting the law to reach the result they want instead of simply saying that the law does not support what they want to do.
It is true that intervening circumstances can justify a late filing of a charge, but case law examples make it clear that such circumstances must impact the merits of the case. Stetzer's lawyer argued many such examples and this author read his motion in jail but does not have a copy available to make more specific citations (this author is relying on personal notes made in jail). Those cases made it clear that the intervening change needs to be something like new evidence without which Stetzer could not have been charged 4 years and 364 days earlier. Bolstad produced no such evidence. Still, Stetzer was concerned that there was be a good likelihood that Bolstad could find a jury that would not have cared if he carjacked the vehicle anymore than if he jacked off in it. A jury like that would convict him for being a criminal charged with a crime because juries like that want to find people guilty and their only real criteria is the question, "do I like this guy?"
Josh Stetzer seems to fall within a specific class of persons. Persons with criminal histories that fight for their rights. The Government likes to keep such people behind bars as long as they can by any means necessary. For prosecutors like Leah Bolstad just keeping someone like Stetzer in pre-trial detention is considered a victory whether or not it ultimately results in a conviction. In the District of Oregon there is no bail and it takes many months to resolve a case. The time and expense needed to just keep someone like Stetzer in pre-trial detention is worth it to the Government. This creates a system of pre-conviction punishment that is substantial. As long as Bolstad and others at the USAO believe that they are preventing crime by keeping people locked up on charges they know the person is not technically guilty of they will continue to provide examples to support the claim that this government is not a legitimate one. A legitimate government would care about the truth. The truth is that Bolstad has made a farce and mockery of the so called "justice" system that she swore to uphold. She has created a greater evil than anything Josh Stetzer may have created by turning a system that should protect all innocent people against an innocent man. This practice is an abuse of power more dangerous than any single alleged carjacker.
According to the BOP website Josh is now at USP Pollock.