The more I think about what happened today, the more I realize that not a whole lot actually happened. But there were some interesting bits that came up.
It had been my first time in the new courthouse that has just opened up in the last few weeks. Have to say, it was a lot less claustrophobic than the old one was. Courtroom was definitely built with the expectation that people don’t care about what happens in our justice system. Where courtrooms before could hold dozens of people in the gallery, this one had four benches, maybe fifteen or so people comfortably. With COVID restrictions, five people was starting to push the limit. The view from the 17th floor was amazing though, looking out over Naito Parkway, and the waterfront, and the bridges, it actually reminded me a bit of the first time I ever visited this town, seeing its beauty when it was lit up at night, and I knew eventually I wanted to move here.
This was the second hearing that I’d sat in today, the first one simply because I was at the right place at the right time, so I had an idea of what kind of temperament the judge had. He struck me as someone who seemed very fair minded, letting both sides explain themselves, asking clarifying questions, and overall not acting like someone who knew better than us (which is something I’ve seen from other judges in the past).
But things got a little weird when Mr. Swinney’s case started. As I’d mentioned before in Mastodon messages, his attorney looked a lot like what I’d expect a lawyer supporting a ‘back the blue’ type client to look like: nice suit, not much hair, and of course, he had a face covering that looked like the exact same thin blue line type flag covering that I’ve seen on a number of RRT officers while recording night time protests.
When Mr. Swinney was brought in, he definitely didn’t look like I expected him to. I’d never met the man before today, but looking at his mugshot and pictures of him at protests, it looked like his hair was even shorter, and it took me a minute to realize that his face covering almost perfectly contained his beard. He did have two deputies providing security, where the case I watched before only had one. I don’t know if it was because of the nature of the charges, or if something had happened in jail to warrant extra attention.
His attorney, Mr. Wolfe, immediately started questioning the validity of the case in the first case, claiming that he didn’t apply politics when choosing his clients (and having looked at the cases he’s recently working on, it does seem a variety), but that the DA’s office was engaging in a partisan tactic in charging his client. Screenshots of messages from Parler were claimed to be taken out of context, such as a statement that it only takes two seconds to load an AR-15 was diffused by a later sentence in the post that ‘we have to play by their rules’ (he neglected that later in the post Mr. Swinney states ‘if the mob gets violent however, and the police arent [sic] there to control them, we will handle it.’ and the threatening tone of ‘if you’re smart, you’ll leave us alone’), claims that his actions were justified from another post stating, among other things ‘they are throwing explosives at me’, and other claims. He tried to argue that in the Close Street Supervision report and follow-up, neither of the victims in this case stated that they feared for their physical safety from him, and that not only were his words taken out of context, but alluded that words alone do not have the ability to cause harm. He said that Alan Swinney is not ‘some charismatic leader’, which actually made me wince in sympathy for Swinney. I think most people like to think they have the charisma to sway at least some people to their way of thinking.
The deputy DA made his responses, reasserting the claim that not only were the charges themselves significant, but that his online presence makes him a ‘lightning rod’ for action from like minded people. The judge questioned this wording, and the DA agreed that it was an imprecise word, that being a provocateur was a more accurate legal term. And they may have a point. While I’ve only heard about him being downtown a few times, he’s definitely galvanized the support of a number of people to his cause, even stating online ‘my plan is to hit these little towns [like neighboring Sandy] and recruit, then we all go into Portland together’
The DA also expressed concerns about Mr. Swinney’s willingness to abide by supervision restrictions if he was released, using two quotes from the same Parler post (after apologizing for his crass language): ‘I don’t think I’m going to let them govern me anymore. Take the charges and stick em up your ass.’ and ‘I say again… All you lefty judges, DAs, city council, and mayors can get bent.’
Mr. Wolfe, on his rebuttal, again tried to point out that ‘They’re just words’, which earned him a raised eyebrow from Judge Ryan as he asked “Just … words?” It felt to me like the judge realized that while we have broad freedom of expression in the US, there are some times where certain things may be inappropriate or actually illegal. A number of the posts, if I was an active protester at the protests that Mr. Swinney has been active at, would make me feel like they’re directed at me, and are meant as threats of violence, justified or not.
Both attorneys were asked if they they had evidence or witnesses that they wanted to bring in for testimony, and they both declined, and honestly, it did both sides a disservice. Mr. Swinney on the stand, something his lawyer had floated as a possibility, could have given him a chance to turn the narrative. Probably not enough to get a pre-trial release today, but would have let him get statements on the record. On the DAs part, they kept trying to make arguments that didn’t have evidence in the record to support it, which didn’t seem to make the judge very happy. It’s entirely possible, as Mr. Wolfe had pointed out that the state’s memo had been provided to him late in the day Friday, and he hadn’t had the chance to properly respond to it, that he could have done more with more time.
There were only a few other people in the courtroom with me, one that I believe was an out of uniform law enforcement officer (between him having a holster, if not a firearm, in the courtroom, as well as the DA talking to him in a brief recess), someone that I know is close to the defendant, and another gentleman that I know nothing about. None of them spoke publicly in the hearing.
The judge took a few minutes to deliberate before denying the motion for release, which from what I’ve seen on Parler since, didn’t help the mood of his supporters. Comments have been made online about another hearing in the next week or so about a request to reduce bail, currently set at $534k, but at the time of writing, nothing is showing in the docket yet.
Ben Smith Murder Trial date set, victims and community prepare for the long haul
All court media and documents we have available can be found on our information page here.
Today was the first time Benjamin Smith, accused of a murder charge, four attempted murder charges and four assault charges was seen in court since his March indictment. Two previous status hearings had gone on without him due to medical issues requiring him to be hospitalized in OHSU for an extended period of time.
Today he appeared virtually from the Inverness jail, where a person familiar with him stated he’s “aged like 10 years in 3 months”. He told the court clerk that he was still unable to get out of bed without assistance and was wheelchair bound for the duration of the hearing.
When the hearing started, Judge Greenlick, who has been appointed to oversee all matters in this case through trial, offered to delay the hearing to allow for Mr. Smith to be transported to appear in person, which he declined.
With the preliminaries out of the way, discussions started on setting trial date, noting the fact that he legally has a right to a trial within 120 days. His public defender, Mr. Sarre, requested a trial date in the April to May 2023 timeline.
The DA, Mr. Vasquez (who successfully prosecuted Alan Swinney in his assault trial last year) said April was an option, but strongly requested a trial be held much sooner, in no small part because the victims in the case all desire this case to be finished and closed sooner rather than later, and dragging this out for the next year would cause undue pain to them.
Unfortunately for the state, after the defense pointed out the slate of other murder cases he was defending, including cases resolving in June, August, September and November of this year, the judge agreed to the April 2023 timeline. It was pointed out that the state is prosecuting a 2 year old murder case in February of 2023, and the 13-14 month timeline for Mr. Smith’s trial is actually in line with the normal timeline for trials similar to this. Mr. Sarre’s full docket, combined with the innumerable court delays caused by the COVID pandemic combined to thwart the will of the victims.
From there, questions were raised about the special needs for this trial, including the use being approved of what is called a ‘special jury panel’. We’re uncertain at the moment if there’s a special definition for it in Oregon, but generally, this is a special jury that is made up of people who are more knowledgeable to address complicated issues or serious felonies [FindLaw Legal Dictionary]. The jury selection process is expected to also take longer than normal due to the nature of the crimes as well as the broad media attention being brought to the case.
The state has confirmed that 99% of the discovery has been provided to the defense already, absent some transcripts related to one of the victims that is still being processed, meaning that discovery concerns seem to be less of a concern than other cases we’ve covered here. The DA also anticipates not needing to bring forward ‘404(3) evidence’, a reference to statute where past actions aren’t allowed to be used as evidence of these charges. To borrow from the Alan Swinney case, this would be akin to a number of the social media posts Mr. Swinney made suggesting his premeditation to assault racial justice protesters, causing most of his posts to be disallowed as evidence to the jury.
At the current moment, the timeline is looking to be something along these lines:
- Status hearing on July 22nd at 1:30 PM
- Normal pre-trial motions by the defense due Sept 9th
- Response from the state due Sept 23rd
- Hearing on any of these motions on Oct 14th
- The Jury special panel is scheduled for April 7th in the morning
- ‘In Limine’, or pre-trial motions, the afternoon of the 7th
- The trial itself, scheduled for weekdays from April 17th to May 5th of 2023.
Of course, these dates are subject to change, and we will be keeping an eye out for any updates that may come about in the meantime.
Public Records Law applies to District Coalition, Judge announces Friday
It’s time for taxpayer-funded organizations doing the public’s business to provide transparency and be recognized for what they are – outsourced government bureaus.
History was made that day in the mostly empty courtroom. A lone lawyer sitting at the bar, court staff in attendance. Everyone else, even the judge, was appearing remotely. But it did nothing to dampen the impact of the ruling the judge was about to make that Friday afternoon.
Summary judgement in favor of the plaintiffs in the Hiller-Webb and Tyvoll v Southwest Neighborhoods, Inc (commonly known as SWNI) case confirmed that the district coalition was, for purposes of state public records law, a quasi-government entity and was required to turn over particular records to Ms. Hiller-Webb and Ms. Tyvoll.
As Shannon Hiller-Webb (she/hers) stated in a press release: “I am proud to represent my neighborhood and advance the goals of residents of SW Portland. I became concerned when, as a SWNI board member tasked with financial oversight, I was unable to gain answers to questions and even when submitted as a formal records request, SWNI repeatedly denied access. My intent with this lawsuit is to ensure transparency for taxpayers as the primary funders of District Coalitions who were created to serve us all.”
Associate counsel and public records attorney Alan Kessler (he/him) concurred: “It’s time for taxpayer-funded organizations doing the public’s business to provide transparency and be recognized for what they are – outsourced government bureaus.“
Marie Tyvoll (she/hers) and Shannon Hiller-Webb’s stories may have only started in the last few years, but as attorney Rian Peck (they/them) detailed in a masterclass of research and legal writing, the history behind the public records issues and the need for such transparency went back longer than even this author’s been alive, to the very founding of SWNI and the form of neighborhood/district engagement with City Council as a whole.
District Coalitions and the history of SWNI
All the way back in 1974, the state of Oregon passed SB 100, creating a statewide ‘land use planning program’, requiring cities to plan for 20 years of growth in new households and jobs. In response, the City of Portland created the Office of Neighborhood Associations, creating a conduit for residents to ‘influence land use decisions in what had previously been the political realm of the real estate industry and downtown business interests’ (Historical Context of Racist Planning: A History of How Planning Segregated Portland, p11). Unfortunately, in the first five years, while 60 neighborhood associations had been created, the power dynamics of white affluent residents having all the effective power remained.
An additional 15 years later, in 1994, City Council adopted a new plan to address issues that had emerged in the previous 1980 Comprehensive Plan, a move designed to shift away from the simple expansion of single family residences in favor of multi-family zoning. The plan was anticipated to be completed by 2005, but was quickly beset by similar failures of unequal treatment as had been seen in the Portland living situations since it’s inception.
The first community plan study outside of Central City was the Albina area, where the African American community had historically resided, and had already been torn apart by the 1948 Vanport flood and interstate expansions in more recent years, resulted in the city attempting to ‘boost economic development and bring investment and improvements to Albina’, using it as an excuse to rezone significant portions of single family residential to higher-density zoning to help meet the projected growth goals. The result, as we know well now, was to set the stage for gentrification and push the already struggling residents out of the area, into the outer Eastern Portland and Gresham areas. Author Karen Gibson of “Bleeding Albina: A History of Community Disinvestment” explained it this way: “The occupation of prime central city land in a region with an urban growth boundary and in a city aggressively seeking to capture population growth, coupled with an economic boom, resulted in very rapid gentrification and racial transition in the 1990s.”
From 1990 to 2016, over 4000 households and more than 10,000 African American residents would be displaced from their homes as a result.
In 1996, when planners attempted to produce a similar plan for the Southwest Portland area, they faced two distinct issues. The lay of the land and various environmental issues would reduce the effects that land use planners could use in increasing the housing density in the area. But more importantly, the local community was enraged at the idea of redeveloping single family neighborhoods, and as the residents tended to be well-educated, higher income, typically white, and more organized and well-resourced than the residents in the Albina and Outer Southeast area, they succeeded in not only pushing back on almost every attempt to increase density in the area, but their work managed to derail the entire 1994 plan, forcing a shift from community planning to ‘area planning’, trying to target work in higher density areas.
SWNI, a non-profit organization founded in 1978 specifically to fill the need the City had asked be filled with the creation of the Office of Neighborhood Associations, played heavily in this tale, the 94 volunteer led neighborhood associations coordinating with 7 ‘district coalition offices’ to work with the city’s Office of Community and Civic Life to provide input from the communities on how the citizens feel about particular events in their areas. In 2020, when this lawsuit was filed, SWNI was one of five privately run district coalitions, the remaining two run by city managed offices.
However, SWNI was no stranger to controversy of it’s own. In addition to their successful attempts to derail attempts to increase living density in the southwest area, they had also been caught up in a 2011 embezzlement case where former SWNI employee Virginia Stromer eventually pled guilty to stealing well over $130,000 of SWNI funds dating back to at least 2004, an organization that in court records claims annually about 85% of their funding comes directly from the cities Civic Life department (most of the remaining 15% came from Portland’s Bureau of Environmental Services and West Multnomah Soil & Water). The embezzlement case, of which restitution has only seen a few hundred dollars of the over $200k owed, is something SWNI seemed to actively want to ignore ever happened, even going so far as board members who were active in both 2011 and 2020 hiding it’s existence from newer board members.
In the Present Day
The background helping bring the story to the current times, Ms. Hiller-Webb joined SWNI in 2019, as a representative of one of the local neighborhood organizations, where she jumped in with fervor learning the shorthand language 20+ year veterans of the board had been using, and working to try to make the organization more equitable and justice-minded (efforts that were ultimately denied by the broader board). This was around the same time that she first met Ms. Tyvoll, at a July 2019 SWNI organized picnic, where they connected over a desire for more inclusivity and equity in the area. During this time she started noticing financial information that, as a business owner herself, didn’t make sense, and when she started asking questions, board members began acting strangely, referring to it as ‘magic money’ and refusing to justify it’s purpose or use. January 2019 board minutes confirmed that excess taxpayer funds were being transferred to different accounts to avoid having to return unused grant money (taxpayer funds) to the City, causing the questions of mismanagement of funds to deepen drastically and quickly.
It was then that Ms. Hiller-Webb was urged to connect with former SWNI Board member and attorney Jim McLaughlin (he/his) who gave in depth information about the 2011 embezzlement case, an event which had apparently caused the ouster of not only Ms. Stromer, but also the forced his own departure from the organization, the victim of a slander campaign for his attempts to uphold the law. Ms. Hiller-Webb doubled down on the public records method of trying to get information to better learn about what, if any, mismanagement of funds was happening, when COVID began interfering with the day-to-day running of all of our lives.
When the Paycheck Protection Program (PPP) was released by the federal government, SWNI, knowing full well that it’s funding through the city was not impacted at all as a result of the pandemic, applied for funding, over the objections and with complete opacity to the numerous board members who asked to see the application both before it was submitted as well as after. In a declaration by Ms. Hiller-Webb, she stated that “SWNI created a Citizen Engagement Allocation Program, with the idea that it would move taxpayer-provided funds from Civic Life to a grant program that would create an artificial COVID hardship.” SWNI eventually received over $66k in federal funds, a loan which was later forgiven by the federal government. As Ms. Hiller-Webb went on to state “SWNI had more than sufficient funds to continue its operations, whereas many local businesses back in April 2020 – right after the physical distancing restrictions went into effect – had lost all their revenue stream, could not pay their employees, and were on the verge of and indeed some did shutter their doors permanently.” A move which has historically disproportionally affected BIPOC owned businesses.
SWNI created a Citizen Engagement Allocation Program, with the idea that it would move taxpayer-provided funds from Civic Life to a grant program that would create an artificial COVID hardship.Shannon Hiller-Webb, Court Declaration
This misrepresentation, combined with complaints made to Commissioner Jo Ann Hardesty by Ms. Hiller-Webb and Ms. Tyvoll among others, in her position as lead of Civic Life, caused the city to withhold funds to SWNI pending a forensic audit. That audit, completed November 2020, came back with ‘conclusions of troubling financial mismanagement’, and in March 2021, the city officially struck SWNI from it’s list of district coalition offices, replacing it with a government run version, modeled on the two existing offices the city had already been fielding.
Public Records, Private Organization
Public records provided under state records laws may seem like strange bedfellows for a non-profit like SWNI, but as Ms. Tyvoll testified to the court, it was something that SWNI had done regularly as part of their normal business, in fact one of her earliest interactions with SWNI being responding to a public records request about an event in the area. There was no pushback from SWNI, and the neighborhood organization that was under SWNI was ‘required’ to do the same, per Ms. Tyvoll. And it was part of that confusion that reigned when, as part of the process for appealing denied public record requests, Former Multnomah County District Attorney Rod Underhill initially denied to intervene in the case. Even when he eventually realized this was a question over a District Coalition and not merely a neighborhood organization, he agreed to a hearing over it, but still didn’t quite recognize the power dynamics that existed between the district coalitions and the city, ruling that, from his understanding, because SWNI did not directly control government policies, they were not a governmental body and thus were exempt from public record laws.
A win for SWNI, to be sure, but a short lived one, as in the few months after the case was appealed to the Multnomah District court, the forensic audit finding disturbing mismanagement and the eventual defunding of SWNI by the city all but gutted SWNI’s ability to exist. They no longer held the official position as being a district coalition, and no longer had the grant funding from the city to maintain the neighborhood associations that used to be under it. Those functions were all now handled by the newly formed city-run office of Southwest Community Services . In court, SWNI tried to highlight how, because of the defunding, there was no question that they were not a government agency and in no way responsible to respond to public records requests.
Attorney Rian Peck, representing Ms. Hiller-Webb and Ms. Tyvoll, however, disagreed, pointing out specifically how the simple move of defunding and removing SWNI from the list of Portland District coalitions was enough to make the organization effectively useless, writing in their motion for summary judgement: District Coalitions are not only the City’s mouthpiece to the people about what the City has planned for their neighborhoods, but they are also the neighborhoods’ representatives and advocates to City officials,” going on to state “If SWNI’s functions were not essential to the City’s unique form of governance, the City surely would not take it upon itself to perform the exact same functions in SWNI’s absence.”
If SWNI’s functions were not essential to the City’s unique form of governance, the City surely would not take it upon itself to perform the exact same functions in SWNI’s absence.Rian Peck motion for summary judgement
They also pointed out how, when the case was before the DAs office, SWNI relied on the City Attorney to defend them, a move that was ‘logically inconsistent with its position that it is an independent, private entity’, as well as the use the same public records law to extort money from the city for records that the city required from them, an incident where SWNI violated city standards to try to gain an additional $30,000 in revenue.
None of this was lost on the judge, apparent by the prepared notes it seemed he read from when he announced summary judgement in favor of Ms. Hiller-Webb and Ms. Tyvoll. While declaring SWNI, at the time the records request was filed, a public body for purposes of record request laws, he declined to extend the same designation to all privately operated district coalitions, citing their lack of presence in the courtroom. He did feel that his ruling would be relevant to them, however. He also ruled that SWNI improperly witheld the records requested, and ordered that they be given to Hiller-Webb and Tyvoll within 30 days, as well as awarding attorney fees.
In a prepared press release announcing the victory, lead attorney Rian Peck stated “Even though SWNI purported to represent its constituents’ interests, it refused to be transparent. Government without oversight is dangerous. I am proud to represent two of SWNI’s constituents in their hard-wrought fight for transparency.”
Ms. Tyvoll agreed, stating: “Access to public records is imperative for residents to hold City of Portland officials and those they fund and task with quasi-governmental roles accountable. My records request to SWNI was ignored and this allowed them to perpetuate and enable what the City of Portland Bureau of Planning and Sustainability (BPS) determined funded “…the historical, structural, and institutional racism that has created deep racial inequities that continue to harm Black, Indigenous, Latinx, and other communities of color.”(Letter introducing the Historical Context of Racist Planning: A History of How Planning Segregated Portland). The City of Portland provided SWNI with 85% of their annual funding and has effectively perpetuated and enabled white supremacy for 40+ years.”
The City of Portland provided SWNI with 85% of their annual funding and has effectively perpetuated and enabled white supremacy for 40+ years.Marie Tyvoll, Press Release
For an organization that’s had a historical record of misusing well over $400,000 in local and federal taxpayer money since the beginning of the 21st century, using it’s position to prop up predominantly white homeowner neighborhoods at the expense of the rest of the city, it seems that this may well be the closing of one of the final chapters of the organization. Even so, to look at SWNI’s website, they currently make no effort to acknowledge their status as an unofficial district coalition, effectively burying their heads in the sand and hoping the controversies will one day blow over.
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