A Few of Many Cases__

•   On 7/2/08 Dale Kellogg was pulled out of car, tasered, beaten, arrested and charged in a parking area of the Gathering.  He was jailed for 7 days; originally 7 charges were lodged against him, but at arraignment 3 federal misdemeanor charges went forward... 4 felonies were supposedly dropped but reserved for a Grand Jury.

•   On 7/3/08 the LEO's came on-site with undercover reports on a guy allegedly giving weed freely to lots of people; they tracked Fonty Fox, found him in Kid Village, and took him down hard.  They created much alarm among onlookers, then escalated the 'incident' -- drawing weapons and firing pepperballs & rubber bullets into the crowd... this had never happened at a Rainbow Gathering before.  

••  Skye Laurel Riggs and Rose Stanley were caught up in the Kid Village melee and given 3 citations each, for Interfering/Resisting/Inciting... Skye was tackled standing next to her tent, Rose was peppersprayed and taken down minutes later walking up the trail behind the kitchen.

•   On 7/6/08 Glenn Kamamura went through a police 'gauntlet' stop on the road near the gathering site, with the usual alleged traffic violation and illegal search of his car.  It wasn't there before, but the cops "found" (planted) a small bag of marijuana in his glovebox, and he was busted for it.

Support Strategies__

      Out of hundreds of 'Rainbows' subjected to petty busts and citations, the rest took pleas, paid collateral forfeiture fines, waived the civil rights issues, and went home; only this handful of serious cases remained past July.
The prosecution of Fonty Fox was handed over to the Sublette County Circuit Court, and loaded with controlled substance 'distribution' charges.  It was never alleged that he 'sold' any drugs, but it was a Big Bust anyway, with serious risks, and had to run its course.  
The other cases wound up in the U.S. Magistrate Court in Lander, a branch of the U.S. District Court of Wyoming, and sat there a long time, for other reasons.  

    It is significant that these defendants refused to accept plea deals and held out for fair trials, and that their cases dragged on with no action for so long.  By January 2009, PCU_/Free Assembly Project was assisting the defense investigations, securing usable witness affidavits and videos in their support, and providing defense lawyers with background info on gathering-related cases & issues.  

    In part our efforts were motivated by court & prosecutor delays, seeming deliberate – stalling these cases to wear down the defendants and get pleas, and duck the truth.  This kind of criminal process was itself punitive in effect, holding bad charges over defendants' heads, sustaining their fear & burdens, and abusing their speedy trial rights.  

    The Fox defense was a tough situation, but there were plausible constitutional questions on this manner of drug enforcement, and mitigating facts that could improve the outcome.  As for the federal cases, the intent and hope was to induce the US Attorney to drop them -- which should have been done at the outset.  Once again, the gambit was a show of strength in their defenses, positioning the lawyers to challenge the charges, putting facts on the table that the Feds would not want to fight in a court record.

Breaking the Stalemates__

    As the strategy played out over the following months, all these cases broke through their inertia and got moved... four were resolved, and one went to trial.

[[]]  The Kamamura case was the first to go down:  He had set up a strong position early on, filing a Plea of Not Guilty and Waiver of Arraignment in August '08:  With this he averted an extra trip back to court in Wyoming just for arraignment, by stipulating to the required elements of this proceeding.  It was also a means of challenging the targeted enforcement, illegal stops & searches, and making a record of the burdens of such prosecutions on First Amendment exercise – bringing these issues into the defense.
      However as time wore on, this Defendant wearied under the load – as often occurs these cases... part of the problem:  It was easier to deal with the bad rap than the good fight, and he figured he could not win a marijuana case on limited evidence, his word against the cop's.  So, he accepted a reasonable Plea Agreement in March 2009.

[[]]  Everybody heard about Fonty Fox, and the brouhaha that ensued.  There was widespread alarm at his treatment, concern for his future and wellbeing, how bad this bust could get... and he went through some tough pre-trial travails.  His attorney was prepared on the history of police harassles at the Gatherings, and the heavy-handed manner of his bust – so these issues were ready.  At the same time, clearly he wasn't a 'dealer selling drugs' – more like a Gnome Giving Ganja, and this was a different kind of dope case, maybe even a landmark 'sacramental use' defense.
      But the defining factor was Fonty himself, his character and conduct – an able artist and a most cheery affable fellow, and nobody could hold a grudge:::  not even the cops, not even the judge.  After 10 months of angst, he finally went to court in Pinedale... everyone was polite, and an amicable, generous settlement was reached in early May 2009.  True to form, Fonty sent out a gracious "Thank You Everyone!" letter that tells the story well, in his words.  [He provided some case docs, but not the final plea deal.]  

[[]]  The charges against Skye Laurel Riggs and Rose Stanley were clearly intimidating and retaliatory, escalating police provocations in the 'Kid Village Incident', then covering their violence with allegations of "interfering", "resisting", etc.  Then the Magistrate and U.S. Attorney in Lander left these charges hanging, lacking the facts to prove them and the guts to tell the truth.  
      By Spring 2009, Stanley was outraged and getting impatient... we found a witness video showing a female LEO attacking her with pepperspray for no reason (see JPG image).  This was authenticated by the maker and conveyed to her attorney, with a memorandum on its factual content, and the defense issues it raised.  Riggs got on-board, identified witnesses to her arrest, and some statements were pulled in.  By that summer a year had elapsed since the charges were lodged, denying their due process and speedy trial rights.  Both urged their attorneys to push their cases to dismissal, or go to trial.
      It worked:  In early September 2009, the misdemeanor charges against both Defendants were dismissed "without prejudice".  Typically, the paperwork from Lander was sloppy... 1 charge was missing from Stanley's Dismissal, Riggs' got no final Order, and nothing stated the conditions under which the charges might be reinstated.  But in effect, after 14 months the lies and threats under color of law finally went away.

[[]]  However Dale Kellogg was to be sacrificed, as the U.S. Attorney in Lander refused to back off on the criminal allegations against him.  As the other prosecutions collapsed, this was a transparent face-saving device, with obvious concern for civil liabilities later, based on unwarranted use of Tasers and violent force in this arrest.
      After the court's long stall on the case, and many months of preparation to resolve it, the situation finally came to a head in August 2009...  

Kellogg Goes to Trial__

      Kellogg's court-appointed lawyer kept wanting to wait it out, as if the case might just go away - but it didn't.  He was provided with witness affidavits and urged to push for dismissal, but nothing kept happening.  After a year of delay, the Defendant's speedy trial rights were being stepped on, and this raised the stakes on other 'due process' flaws that had plagued this case from the beginning. 
      Then suddenly, events unfolded quickly --

Finally in mid-August 2009 the lawyer came back with a bad Pre-Trial Diversion deal:  It was nothing like the settlement they had discussed, so Kellogg turned it down.  He was an honest man seeking justice... he wasn't going to stipulate to guilt if he was innocent, or waive rights he needed to use.

In response, his lawyer quit, filing a Motion to Withdraw on 8/28/09, and the Magistrate acted immediately with a 9/4/09 Order granting the withdrawal and reaffirming the trial date of 9/28.  The Defendant was given no chance to respond, and apparently the Court had no problem sending him to trial in three weeks without an attorney. 

In fact Kellogg got off a timely Response Opposing the Motion to Withdraw, but it crossed in the mail with the judge's untimely Order approving it, and was not filed until 9/10.  He then followed up quickly on 9/14, filing an Incomplete Exhibit and Witness List to supplement his Response, maintaining his innocence and making a record of available facts in defense – which his attorney never did.

The Court did not address the substance of these filings, but issued a terse new Order on 9/17/09, converting the 9/28 trial date to a Hearing for oral arguments on the motions, still requiring his appearance from out-of-state.  So around 9/21 Kellogg got notice by mail that he had to appear in Lander, Wyoming in 5 business days, without counsel. 

In this predicament, he filed 2 Motions on 9/23/09, by Fax and Mail:

••  Defendant's Emergency Motion to Dismiss Or For Mistrial
        This was a critical move to make a defense record – of factual grounds for dismissal of the charges, of constitutional issues in his arrest & prosecution, and of due process abuses mandating mistrial.  Attached was the Report of ACLU-Wyoming, 3 Oct.'08 – which examined the Kid Village incident and others at the 2008 Rainbow Gathering, and found a pattern of targeting and provocation of participants by Forest Service law enforcement.

••  Defendant's Provisional Motion for Continuance
        A last effort to avert a needless appearance on 9/28, calling for consideration of his Motion for dismissal or mistrial before any further proceedings.  It was significant that he was putting it all on the table, making a record and standing on it, challenging the prima facie case, and seeking relief from prejudicial errors - including the Hearing itself.

PCU_//\_Free Assembly Project took heed of this situation, faxing an urgent 'Friend of the Court' Letter on the morning of 9/28/09:  It affirmed the public interest in prosecutions related to 1st Amendment exercise, and strong concern at the irregularities and burdens of the Kellogg case.  At this juncture, it was important to put these questions to the Magistrate, and to make it clear that this case was being watched.
 
Again, the Court ignored the Defendant's filings, and went forward with the 9/28 "Hearing". 
This put him in a difficult and vulnerable position, forced to travel from Utah at his own expense, to appear for unknown reasons without an attorney present on his behalf.  
However the Court was also cornered in its own blunders, exposed by the pro se filings and letter on his behalf.  All the Magistrate could do in this proceeding was appoint new defense counsel and set the case for trial – none of which required an appearance.  By her 9/28/09 Order that day, another local Lander attorney, James Whiting, was appointed to represent Kellogg, and trial was set for 11/9/09, just over 5 weeks away. 

Adding to the confusion, the Court's 10/8/09 Notice confirmed that trial date but cited the wrong charges - the 4 felony violations that ostensibly had been dropped at the arraignment over a year before.  Given his experience with this Court, Kellogg had reason to fear that those charges had been maliciously reinstated - but it was just another dumb error.

When the new attorney came on, a settlement was still possible – but with a trial date looming, this had to be handled promptly.  Instead, he was distracted on other business, delayed in obtaining case files and witness affidavits from the first lawyer, and in reviewing docs provided on 'Rainbow' history & harassment issues.  Critical weeks were dithered away, then late in the game the U.S. Attorney pulled another 'bait-&-switch' move, coming back with a totally unacceptable deal on 11/2:  
Negotiations broke down a week before trial, and defense counsel was not prepared; the next day on a call with the Magistrate, an oral request for continuance was denied.  He was provided with a written Motion to Continue the trial, but he didn't file it.  

So on 5 days notice, the Defendant and available witnesses had to scramble and get to Lander, Wyoming.  Kellogg rode a bus from Salt Lake City; I drove for 'pcu_FAP' from St. Louis, bringing in two witnesses from North Carolina and Arkansas.  We arrived and found a place to stay the day before trial; we met with the attorney only once, that night before.

        U.S. v. Kellogg (Crim. No.  2:08-M-6513) went to Magistrate Trial on November 9, 2009:

Two FS-LEO's testified for the prosecution, depicting the Defendant as impatient, intruding on reasonable police work, and wildly resistant when contacted.  Two defense witnesses were in court, and two more testified by phone from New Mexico and Israel:  They observed the LEO's hanging around, vaguely menacing and obstructing traffic in a parking area, and how Kellogg's effort to pass by slowly was suddenly turned into a violent incident, with him dragged from the car, beaten and 'tazed' multiple times while fully subdued.  

Attorney Whiting missed opportunities to cross-examine the cops on contradictory statements, and did not intervene or object when the U.S. Attorney was viciously badgering his client on the stand.  He assured us that the necessary facts were in the record, so there was no need to parse them further.  By mid-afternoon, the Defense rested... Magistrate McKee announced that the ruling would come out at the end of the week... Court was adjourned.  
We relaxed that night, figuring that it went pretty well overall, and the LEO's had tripped on their own lies... then we rolled out of Lander the next morning.

The ruling did not come out that week, or the next... it was finally issued by the Magistrate on November 20, 2009, and the Defendant was notified several days later of the outcome --  Guilty on all 3 counts:
••  JUDGMENT AND SENTENCE ...re: U.S. v. Kellogg, 20 Nov.'09

Normally a post-trial Defendant is required to appear for sentencing, but a Waiver of Appearance was filed for Kellogg in December '09, to make this unnecessary.
Thereupon the Magistrate issued a final ruling in late-February, confirming the convictions, penalties & conditions imposed:
••  JUDGMENT IN A CRIMINAL CASE ...re: U.S. v. Kellogg, 25 Feb.'10

At the Defendant's request, Notice of Appeal was filed on 3/8/10... the case would go up on Appeal, first for review by a U.S. District Judge in Casper.

See a full summary of the Kellogg APPEAL (Appeal No. 1:10-mj-00053-WFD) based on the court docket to date -- with direct links to the major filings, downloadable for free, in the interest of good public information.

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