Wednesday, September 29, 2010

Harney County DA Tim Colahan Declines to Prosecute--AGAIN....

Tim Colahan, Baker County DA Matt Shirtcliff's Go-To guy for possible Brocato prosecutions has once again declined to pursue a prosecution of Steve Brocato, Harassment in this case, or any other possible charge related to Mr. Brocato's aggressive behavior across the street from the Yervasi and Pope law office back on August 24th of this year. This is the second time in a row that DA Shirtcliff, citing a conflict of interest, has farmed out an investigation of Steve Brocato for Harassment, both of which have ended up with the Harney County DA, who declined to prosecute.

The first incident, you may remember, was when Colahan declined to prosecute Mr. Brocato after witnesses said he had seized an 8 year old disabled girl by the face back on May 19th, 2008. See: D.A. won't pursue claim against Brocato

See also:

Harney County DA Declines to Prosecute City Manager

Read DA Colahan's review of the latest incident on Scribd.

This time around, while seeming to avoid any mention of the charge "Harassment," which happens to be the possible charge referred to in the police report, DA Colahan clearly errors with a blatant and incomprehensible misstatement of the facts found within it. With reference to what he read in the "report" he states that "No other person is identified as witnessing this incident . . . ." Because the Police Report is readily available, anyone who is interested can see that there are four witnesses who stated that they saw Steve Brocato knock Jason Bland's hat off: Jason, Andrew Bryan, Milo Pope and myself. Given DA Colahan's inaccurate statement about a lone witness, I called Matt Shirtcliff's office to find out if there is another police report that DA Colahan might be referring to. His secretary asked him personally and told me he said that "He is aware of only one police report." The only other possible explanation I can think of is that for some reason, DA Colahan only read the first three pages of a six page police report. (The entirety of the above issue was not reported in yesterday's (9/29/10) offline Herald article, and they do not question the discrepancy between Colahan's erroneous statement and what's in the police report.)

In his review, DA Colahan declines to prosecute. He then begins to outline his reasoning with the sentence "Based on the report, there is no evidence of an assault having occurred." During the short discussion that follows, concerning Steve Brocato knocking Jason Bland's hat off, Colahan never once uses the word "harassment," even though it is the charge that is specifically mentioned in the Police Report by Officer Plaza ( "I told Bland he could file a harassment report if he wanted." ) Both of our local papers, while mentioning that DA Colahan wrote that there was no evidence of an assault, neglected to mention that no one ever said there was. The charge of harassment, which happens to be the offense mentioned in the police report, was ignored in DA Colahan's review. Another potential charge, such as "Initiating a false report" was not mentioned and apparently was not investigated.

I previously filed a complaint with the Baker City Police Department claiming that Milo Pope had violated City Ordinance 130.045 Public Urination. It can be found on

DA Colahan, agreeing with the local police department, states that "It also appears prosecution cannot be made under Baker City Ordinance 130.043 because the incident was not observed by a police officer." and later:
"It is clear that a private citizen may only commence violation proceedings for boating violations, traffic violations, wildlife, commercial fishing and certain agricultural weight violations. ORS 153.058(8). I am unaware of any provision in the Baker City Ordinance Code which allows for violations to be commenced by a private oitizen."

I too believe, after reading the statute, that it is clear that state law does not allow a private citizen to "commence" violation proceedings for a Public Urination violation in Baker City.(Seems pretty wacky to me, considering you can commence a proceeding alleging that someone ran a stop light or has violated any one of numerous city ordinances.) The use of the word "appears" by DA Colahan earlier leaves me to wonder if perhaps a prosecution could proceed if an appropriate officer were to "commence" a complaint. Chapter 40 of the Oregon evidence Code does allow photographs to be submitted as evidence under many circumstances, and it seems reasonable that if a citizen shows a police officer photographic evidence of a violation, that the police officer could then "commence" proceedings for a violation of the ordinance. Additionally, people file complaints about violations of the Property Maintenance Ordinance and point out evidence of the violation to officers all the time, and they quite often "commence" proceedings against the alleged violator.

In yesterday's (9/29/10) Herald article, Councilor Milo Pope, the great spinmeister, tries to say his behavior wasn't a violation of the public urination ordinance. According to the paper, Councilor Pope said: "it
wasn't public urination in the first place,
" he said. "It was in the dark."

You would think that a former Circuit Court judge and lawyer, Milo Pope, would know the Oregon laws, and the Baker City public urination ordinance in particular. Here it is (again):

Chapter 130: General Offenses

130.045 Public Urination

It shall be unlawful for any person to urinate or defecate in or upon any street, alley, public place, or in any place open to public view. [emphasis added]

- Milo Takes a Break

The important clause in the ordinance for Milo's case is "in any place open to public view." Milo was in plain sight of anyone walking by on either sidewalk, and could also be seen clearly by anyone in the alley or on the street in that often frequented downtown area across from Ace Hardware.. The photograph shows that his behavior was in fact "open to public view," and anyone familiar with the scene, like, for example, Milo Pope, knows that.

So. . . it was "public urination" as defined by the ordinance. Milo implies then that it is of no consequence, because, hey--"It was in the dark." But was it?

On August 24, 2010, the U. S. Naval Observatory sunrise/sunset table for Baker City, says that the sun set at 6:42 PM. Dusk or twilight begins at that time. As any one who has been out after sunset knows, the period of ambient light can continue for 30 minutes or more, but it varies with location and time of year. When this period of ambient light ends, it is officially "dark," as in "It was in the dark."

The photo of Councilor Pope taking a break in public view was taken at 7:04 PM, 22 minutes after sunset. The following photo, of Milo checking his cell phone was taken 8 minutes later, at 7:12 PM. It is clearly not "dark." In addition, even if it had of been "dark," which it wasn't, there are two street lights along 3rd at the Ace Hardware Parking lot, and a powerful lamp near the south west corner of the same store. There is an additional street light at 2nd and Washington. It is a fairly well lit up place--that is why Milo and friends could easily see me on the sidewalk across the street, and I them, even when it did become "dark."

- Milo Checks Cell

Why did former Circuit Court judge and still lawyer and Councilor Milo Pope apparently tell the Herald "it wasn't public urination in the first place," "It was in the dark."???

In today's Record Courier article on the subject, Mr. Pope states that "Those two village spies had no legitimate interest in knowing where I was during that time. That I was absent was obvious."

Just more spin. As both Jason Bland and myself have said previously, a major concern of ours was whether Councilor Pope was skipping a Council meeting to meet with former City Manager Steve Brocato, who happens to be suing the City and the four Councilors to whom Mr. Pope appears to have shown contempt. A lot of people think that is worth checking into and reporting on.

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