July 28, 2013

Bill Nemitz: Case forecast to leave stain on federal justice system

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Writing for the majority, Chief Judge Sandra Lynch maintained that Strong knew exactly what he was doing as he went about defiling the restroom. Lynch also went out of her way to disagree with Judge Torruella's dissenting opinion that there's no proof it was anything more than just an accident.

"The dissent begins with the red herring argument that Strong accidentally lost control of his bowels, but that is immaterial to the pertinent question," Lynch wrote. "The relevant question is not whether he purposefully defecated his pants, but whether he willfully spread his feces all over the bathroom resulting in a nuisance, hazard and damage. Moreover, the refusal of the CSO (court security officer) to let Strong use the restroom before passing through security may have given Strong motive to soil the restroom."

(Now I'm no legal scholar, but since when does the phrase "may have" trump the phrase "beyond a reasonable doubt"?)

In his 31-page dissent, Torruella argued that the soiled surfaces in the bathroom are consistent with a man who had had an accident down below and was understandably "attempting at a frantic pace to clean himself and his clothing."

The trial magistrate's finding that Strong did it on purpose was unsupported by the evidence, Torruella wrote. Moreover, he added, the government was "unreasonable" in its claim that Strong further incriminated himself by failing to alert the marshals waiting outside that they might want to get out the Clorox.

"The reasonable inference to draw from this fact," opined Torruella, "is that Strong was embarrassed of what had transpired."

Countered Lynch: "Strong need not have contaminated 100 percent of all surfaces to support the conviction for what he did willfully do."

Is it just me or is this starting to sound like a "Saturday Night Live" skit?

But wait, there could be more:

Essington, who is court-appointed (and thus paid by you and me) to represent Strong, has been unable to reach him since his latest appeal was denied. But to preserve his rights, she said, she's now working on a motion for "rehearing en banc" -- meaning the entire nine judges on the 1st Circuit court would take a second look, not just the three-member panels that typically tackle most cases.

And if that doesn't work? Could this malodorous mess, perish the thought, ultimately land on the steps of the U.S. Supreme Court?

"At first, that idea sounds totally crazy," Essington said. "But whenever you have a published decision from a circuit court where there's a strong dissent, like there is in this case, it's certainly within the realm of possibility that the Supreme Court might be interested."

In particular, she added, the high court might zoom in on the part of Strong's case alleging that the courthouse rules were not adequately posted to alert visitors that while in the building they should not whatever. (No, the rules don't mention bodily functions. I went over Friday and checked.)

My calls to the U.S. Attorney's Office in Portland were not returned Friday. And as Essington noted, Strong currently is nowhere to be found.

Still, considering all the defendant has been through trying to clean up his reputation, it seems only right to give him the last word here.

"I still can't believe I'm sitting here today," Strong told the magistrate back in 2011. "I'm still embarrassed. I'm angry."

Imagine how he'll feel in jail.

Bill Nemitz can be contacted at 791-6323 or at:



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