Leniency With Portland Protesters Could Affect Jan. 6 Defendants Portland police arrest a protester in front of the North police precinct during a protest against racial injustice and police brutality on September 6, 2020 in Portland, Oregon. (Nathan Howard/Getty Images)
By Charlie McCarthy | Wednesday, 14 April 2021 10:03 AM
Leniency shown to defendants charged in last summer's Portland rioting could impact the cases of those similarly charged after the Jan. 6 U.S. Capitol breach, legal analysts say.
Prosecutors have approved resolution agreements in at least half a dozen federal felony cases stemming from the unrest and violence of anti-police protesters in Portland, according to Politico.
Defense attorneys and court records show the deals would give defendants a clean criminal record if they stay out of trouble for a specified period of time and complete a certain amount of community service.
The government's willingness to resolve the cases without criminal convictions is attributed to the transition from former President Donald Trump to President Joe Biden and related changes at the Justice Department under the new administration, according to lawyers.
In contrast, Trump and then-Attorney General William Barr took a hard line with accused lawbreakers involved in unrest and violence that spawned from protests alleging racial injustice after George Floyd's death in Minneapolis police custody.
"Obviously, there was a change in direction from Washington, and once they changed the U.S. attorney, that seemed to change the tone," said John Kolego, a defense attorney based in Eugene, Ore., who handled one of the Portland cases. "They had their marching orders from Barr before, but the tone is definitely changed."
Five cases in which deals were struck recently involved a felony charge of interfering with police during civil disorder.
Some defendants were accused of punching or jumping on police officers, with one person alleged to have shined a high-powered green laser into the eyes of officers trying to disperse a rioting crowd outside a police union building.
As with the Portland cases, prosecutors are citing interference with police in dozens of the criminal cases involving the Capitol breach.
The felony anti-riot charge has been employed in the Washington D.C. cases along with other charges, such as obstructing an official proceeding or assaulting police officers.
Violence in Portland and Washington, D.C., have been described similarly. For example, a woman in Portland used a wooden shield and hoses to strike a Portland police officer in the head while he was trying to make an arrest.
During the Capitol attack, suspects have been accused of using shields to shove police or obstruct their efforts to secure the building.
A woman in Portland received a deferred resolution agreement settlement after being indicted on a federal felony charge of pointing a laser at a small plane that the Portland Police Bureau flew during the unrest. The case against the woman will be dismissed if she complies with terms of the agreement.
A U.S. Attorney's Office spokesman in Portland said the resolutions reached were not being approved by Washington officials.
"There is no across-the-board standard being used to rule our protest cases in or out of consideration for a deferred prosecution agreement, and our office does not consult with Main Justice on when to use them," spokesman Kevin Sonoff said.
Sonoff added that Portland prosecutors were acting under the authority that former President Barack Obama's attorney general, Eric Holder, granted to assistant U.S. attorneys to craft resolutions considered appropriate in criminal cases.
Jeff Sessions, Trump’s first attorney general, revoked that policy in 2017. But the Justice Department returned to the Holder standards days after Biden’s inauguration.
"Undoubtedly, defense lawyers will point to everything they can to get the most favorable resolution for their clients," said Laurie Levenson, a former federal prosecutor who's now a law professor at Loyola Marymount University in Los Angeles. "Now, one thing they can point to will be the deferred prosecutions in Portland."
Prosecutors in Washington, D.C., however, will likely argue the events there were more serious even if the actions of the defendants were comparable.
"Attacking the Capitol is sui generis — it’s in a category of its own,” Levenson said. "One is the seat of government and the other is not."