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Notes -
Patriot Front's Conspiracy to Riot in Coeur d'Alene Idaho
This is another post in what has become a series covering widespread lawfare against dissident-right activists, previously I have covered:
The arrest of the Patriot Front men on their way to protest in Idaho (seen here from their perspective) became a big news story, with the dox and mugshots widely published and applauded, even as anti-hate NGOs admitted that rioting was not the M.O of the group. At the time, even I didn't think the charges stood a chance of going anywhere, even if police wanted to argue for probable cause there was no way a prosecutor would dig a little into the group, see quite clearly they intended to protest in the exact way that have been documented to protest over a dozen times, and then claim that these men came to riot. But I was wrong, and charges were pursued on a single count of "conspiracy to riot."
30 out of 31 members pled Not Guilty and opted for jury trials, 1 member pled guilty to a lesser charge of disturbing the peace and was sentenced to 180 days in jail with 179 days suspended. The first jury trial of 5 members who pled not-guilty to conspiracy charges was concluded last week, where a jury of 6 unanimously found them guilty of conspiracy to riot. They were sentenced to 5 days in jail with 2 days served and banned from downtown for a year.
Having followed the trial in various news stories, the evidence provided by the prosecution seemed to solely entail potentiality, as in "these shields could be used to bash people, and the flagpoles could have been used to hit people from behind the shields." It was noted that the shields the men were carrying had scratches on them and the flagpoles were longer than normal as suspicious, even while the testifying officers admitted that other protestors were open carrying, and it is not illegal to have a shield.
It's notable here that the members were arrested on their way to protest, they did not even have the opportunity to leave the vehicle. All indications are that they planned to march in the exact manner they have done many times before. My confusion, even after following the coverage, is whether or not the prosecution is alleging that this behavior would have constituted a riot, or if they solely relied on speculation for how the shield and flag poles and such could have been used to riot. If the Patriot Front had made it to the park and marched, would they have been arrested for rioting? I don't think so, somehow stopping them before they even had the opportunity gave the prosecution more leeway to plant in the minds of the jury all the things they could have done when they got to the park. It's not clear how this conviction will impact the other trials.
Needless to say, civil rights organizations are not lining up to defend these men (in contrast, the "civil rights conspiracy" Charlottesville lawsuit was concocted in a Manhattan office with a multimillion, NGO-funded war chest, with a lead attorney who compared the lawsuit to the Warsaw ghetto resistance). The PF men have relied on public defenders and faith in the jury process.
FBI Whistleblower Reveals Malfeasance In Patriot Front Trial (?)
The one form of institutional opposition to this prosecution has come from an article published last week by the Idaho Tribune. This trial is only the tip of the iceberg. Not only were PF men arrested, doxed, and charged with conspiracy to riot, but their phones were handed over to the FBI by the State for data extraction. The prosecution claims it cannot present the phones to the defendants in their conspiracy cases, as the State no longer as possession of the evidence. It turns out, nobody from the State ever saw a warrant for those phones before, or since, handing them over to the FBI. Not only that, but according to a whistleblower an FBI SSRA in Idaho was removed from his position because he refused to a sign a warrant for the phones due to lack of probable cause:
IANAL, so I cannot tell how serious this issue is, but reading through this brief it seems Rousseau's attorney is claiming the phones contain potentially-exculpatory evidence and that the State has "parked" the evidence with an FBI based on a warrant that nobody has ever seen and has not been provided to the defense.
In these cases, from what I can tell the public defenders have done a good job and they are receiving a good defense, though maybe not the best money could buy. But I'm not sure what exculpatory evidence could be on the phone: it seems the prosecution wasn't even denying that they planned to march in the way they've done every other time, they were just arguing that their actual plans constituted a plan to riot.
Lessons Learned
So you're right wing, but anonymously shit-posting online isn't enough for you, you want to organize IRL. Maybe you want to march with your friends against a Pride event. Well you better be prepared to be arrested, doxed with your face plastered in national news, charged with a conspiracy, and have your phone be handed to the FBI. Some people on the DR argue that it's an "overly online" movement, but this case shows that IRL activism is at the moment not worth the risk.
Patriot Front has some cringe optics, Rousseau's speeches are really cringe, but if their activism is accomplishing anything, it's exploring the boundaries of legal right-wing expression, which is not where you would expect it to be based on 1A protections.
I am not familiar with the specifics of this case, but it is important to note that this is NOT notable. in Idaho, as is the norm:
State v. Medina, 447 P. 3d 949 (Idaho: Supreme Court 2019).
Hence, IF they agreed to riot, then the crime was complete the moment that anyone committed an overt act in furtherance of the conspiracy. That includes acquiring weapons, or a car, or many other acts. See State v. Averett, 136 P. 3d 350 (Idaho Court of Appeals 2006) ["In State v. Brown, 113 Idaho 480, 745 P.2d 1101 (Ct.App.1987), this Court stated that, "the overt act requirement is satisfied by slight evidence," and that the "act in furtherance of the conspiracy need not itself be criminal." Brown, 113 Idaho at 493, 745 P.2d at 1114. It is not required that there be a direct connection between the overt act of legally purchasing items used in the manufacture of methamphetamine and the criminal act of producing methamphetamine. The legal act of purchasing items necessary for the manufacture of the methamphetamine is sufficient to establish an overt act in furtherance of the conspiracy."].
Hence, it does matter that, as you note, "it is not illegal to have a shield."
Saying it's "NOT notable" is just flatly wrong, it is a notable fact of the case, even if it is technically true that a conspiracy doesn't require waiting until the act is carried out.
It's notable because, in an alternative universe where they did arrive at the park and marched as they had planned to and exactly in the manner they have been documented to march in every single other case, it would have been harder to allege a conspiracy to riot. So it's notable that the case is easier given that they did not have an opportunity to demonstrate that they were there to protest. It seems unlikely to me they would have been arrested for marching if they had made it that far, only stopping them before they could start gave the prosecution a case here.
You made a claim that the convictions are legally dubious. You based that on ostensibly "notable" evidence which is in actuality legally irrelevant.
This amounts to a claim that, when police have evidence that people are conspiring to commit a crime, they must wait for them to actually commit the crime before arresting them, in case the police are mistaken. Have you ever advocated that in any other context, in which members of your team were not the ones being arrested?
That's an extremely low bar, because nearly any human activity can be part of a plan to commit a crime. Visit a bank - maybe that's evidence you're casing it and plan to rob it. Go to work - maybe you're planning to sell drugs to someone you know at work. Buy a 2l soda bottle - maybe you're planning to turn it into a illegal silencer. Given the correct context, basically anything can be evidence of acts that haven't occurred yet. Maybe this is by design - certainly it would make the job of police and prosecutors a lot easier if they can convict based on a Minority Report-style supposition about what people 'intended' to do.
No, it is not an extremely low bar. Because first there needs to be an agreement between two or more people to commit a crime, and its existence has to be proven beyond a reasonable doubt. Then, there has to be an overt act in furtherance of the conspiracy.
Although circumstantial evidence can be used to prove the existence of an agreement, And here is what CA jury instructions say about circumstantial evidence:
Someone visiting a bank might be casing the place, but that is hardly the only reasonable conclusion. So, your concern is misplaced.
The trouble here is that if you’re of the right frame of mind, or can be convinced as such by the prosecutor, almost anything that a person says can be taken as pointing to a the reasonable conclusion that there’s a conspiracy.
Me going to a bank, when I have money problems, and perhaps talking or texting about banks and money problems can be taken several ways. And especially if the crime in question hasn’t been committed at all, it’s really hard to prove they were going to commit the crime.
Aren't you ignoring this part: "If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence"?
And that would depend on the framing the prosecution uses and the quality of the jury. If you select properly, choosing people who aren’t able to tell the difference between vague discontent and an actual plan. It’s not at all clear that the usual retirees and unemployed who usually populate jury pools are going to make the fine distinctions that would allow that standard to actually hold. Especially given that the PF imagery and public statements would be off putting to most jurors. If the prosecutor is smart, when he’s talking about the flag poles, he’s going to make sure that the fascist symbols are clearly visible. Those kinds of things can be provocative in the minds of jurors.
To go to the bank example, if you and I visit a bank, and then I text you about money problems, and how a sudden windfall of money would solve my problems, and you say something like yeah that would be nice, in the hands of a good prosecutor, that’s motive right there. Now either one of us caught with common items that could have some use in a bank robbery are potentially in actual conspiracy. After all, why would an innocent person have these items in their trunk.
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