Chris Pentico's Sentencing

Chris Pentico's Sentencing

I showed up at the courthouse--and found a sign on the second floor, where Judge Swain's courtroom is, announcing that the Chris Pentico sentencing had been moved to courtroom 504. I suspect that they moved the sentencing because of the anticipated crowd--and it was a crowd. There wasn't a seat free, and the aisles were filled with folding chairs and standing people. I noticed Dan Popkey of the Idaho Statesman present, taking notes.

Rep. Pete Nielsen (R-ID) testified in mitigation of the sentence. (Essentially, arguing why the sentence should be light.) One of the claims made by the prosecution was that the governor's staff had asked to have Pentico banned. Nielsen testified that when he first heard about this ban, he contacted both Captain Rogers, of the capitol security detail of the state police, and Clete Edmondsen of the governor's office. Rogers at first didn't know who gave the order, and Edmondsen claimed to know nothing of it. (I believe that Nielsen passed this word back to Pentico at some point, which would at least give Pentico reason to be unsure if he was banned or not.) Later, Captain Rogers got back to Nielsen, and told Nielsen that Edmondsen had ordered Pentico's ban.

Nielsen also testified that in the almost four years that he had known Pentico, through Elmore County Republican Party activities, and at the legislature, he had never known Pentico to be anything but honest and polite in his dealings with others. Nielsen also turned over a letter to the judge to this effect signed by a number of other members of the legislature. (And remember: one of the original reasons for banning Pentico was that he made members of the legislature "nervous.") I don't know how many other members signed that letter, but I don't get the impression that it was more than a couple.

The prosecutor claimed that the reason Pentico was banned was that had repeatedly harassed staff in the Board of Education offices, and requested that Pentico be given a $500 fine ($300 suspended), 90 days in jail (85 days suspended), and a no-contact order with the governor's office, Idaho department of education, and a couple of other branches of the government, for some significant period of time. (I don't have the period in my notes, but I think it might have been two years.)

Pentico's attorney, Derr, is pretty old--beginning to get the shakes associated with Parkinson's. His statement wasn't spectacularly well delivered, and at one point, he called a witness out of the crowd, Wayne Hoffman of the Idaho Freedom Foundation, who had apparently worked at the Board of Education during the time Pentico was supposedly harassing staff (although he was never arrested or ordered to leave the premises during that period). After a few words between them, Derr changed his mind. Derr should have talked to Hoffman first before calling him as a witness, I think.

Where Derr did best was point out that the statute prohibiting trespass requires you to be told to leave and not return--and when Officer Pattis claims that he told Pentico that there were places that he was not welcome, and was not to return, these were not places that he had been at that day, and was not at them at the time of notice. More importantly and more eloquently, Derr asked if any officer could tell any citizen they can only exercise their First Amendment rights in writing, or with a police escort to and from a government office? There's an obvious chilling effect when you have to give 48 hours notice to the police that you wish to deliver a complaint to a government official. (This was the circumstances under which Officer Pattis says he told Pentico that he could hand deliver complaints to the governor's office.)

Judge Swain argued that the statute under which Pentico was convicted is defective, in that it treats both public and private property the same, but that he was obligated to "apply the laws to the facts." He also acknowledged that there was a First Amendment conflict in a situation like this--which suggests to me that he didn't read the Korsen decision as carefully (or perhaps as broadly) as I did. He did acknowledge that Pentico's conduct, assuming all the facts that he obviously believed to convict him, constituted a de minimis violation of the statute. Because of "the unusual facts of the case," such as Pentico's community standing, lack of criminal history, indeed, lack of any evidence of dangerousness, "no jail time" "no fine" "no court costs" and "no no-contact order." All of this was a withheld judgment for thirty days. If Pentico can stay out of trouble for that period of time, the conviction disappears.

I don't know if Judge Swain was influenced by the large crowd of well behaved people that showed up to make sure that justice was done. In one sense, I would hope that Swain was not influenced. Justice shouldn't be determined by popular sentiment. On the other hand, if there's something fishy about a case, and a defendant has this much of the public concerned about it, maybe it should influence a judge to rethink his position.

Clearly, Judge Swain was putting it back on the legislature to fix what he acknowledged was a defective statute. I approached Rep. Nielsen after adjournment, and indicated that he needs to introduce a bill next session to fix this. He agreed, and asked me to suggest some language. I told him I would think about it for a few days, and do so.

Pretty clearly, there are circumstances where it is appropriate to exclude someone from governmental offices. But those circumstances need to be pretty extreme--not just to make government officials and their employees comfortable. I would suggest that requiring a judge to issue a restraining order should be the first step, or perhaps the second step--something that provides for due process, and an impartial observer to decide whether a citizen's legitimate reason to enter public parts of government offices is exceeded by the legitimate needs of government to operate without intimidation or physical danger. Any ideas that you have: let me know.

UPDATE: Dan Popkey's article about the sentencing hearing was mostly correct, but what was left out is no surprise, consider Popkey's political leanings. The comments by the liberals that dominate the Idaho Statesman's comment board are unsurprising: lots of personal insults to Pentico, and general contempt for the First Amendment right of free speech and right to petition government officials for redress of grievances. If you aren't engaged in nude dancing, Idaho liberals aren't big on those protections.