Courts

Is Membership in a Conservation Organization Proof of Criminal Intent to Harm Cattle?

Prosecutors in southern Utah have argued that they can prove that the closing of a corral gate was the crime of attempted wanton destruction of livestock by pointing to a defendant's membership in a conservation organization. Today I argue to the Utah Court of Appeals that it should review the First Amendment implications of the prosecutors' maneuver.

|The Volokh Conspiracy |

This afternoon I will present an important First Amendment issue to the Utah Court of Appeals about the extent to which membership in an organization can be used as proof of criminal intent. The question arises out of a criminal prosecution launched by San Juan County prosecutors against Rose Chilcoat and Mark Franklin, who were camping in southern Utah a little over a year ago. After Franklin closed a corral gate on state lands, prosecutors filed second-degree felony charges against him, alleging that he had engaged in Attempted Wanton Destruction of Livestock, a second degree felony under Utah Code § 76-6-111(3)(d), by attempting to block cattle from access to their water supply. And the prosecutors also filed the same charge against his wife, Ms. Chilcoat, for allegedly "aiding and abetting" Franklin's gate closing.

Mark Franklin and Rose Chilcoat—Attempted Cattle Killers?

It turns out that closing the gate never endangered any cattle, because the cattle had easy access to water through a gaping hole in the fence just 50 yards away. And prosecutors concede that Franklin was aware of the hole within a minute or two of closing the gate. But undeterred, the prosecutors have argued that for a minute or two before then, Franklin acted with the specific intent to harm cattle in his felonious criminal "attempt" because his wife, Ms. Chilcoat, is active in an environmental (more precisely conservation) organization. She has had a leadership role in Great Old Broads for Wilderness, a grassroots organization of conservation advocates led by older women who work to protect public lands through education, advocacy, and stewardship. The prosecutors believe that Ms. Chilcoat's advocacy work shows that she is concerned about overgrazing of public lands in the West and, ergo, she wants to harm cattle on public lands. And, accordingly, that this intent can be imputed to Mr. Franklin to prove his criminal intent, and then she becomes guilty of aiding and abetting him because she had the same criminal intent.

The alert reader will probably see many difficulties with the chain of argument. But today, co-counsel Jon Williams, Jeremy Delicino, and I will be focusing on one aspect of the prosecution's theory: The First Amendment implications. As argued at length in our petition for interlocutory review, the First Amendment bars prosecutors from relying on a person's abstract political beliefs as a basis for criminal prosecution. For example, in Dawson v. Delaware, the U.S. Supreme Court reversed a criminal sentence based in part on the prosecution's use of evidence that a defendant was a member of the Aryan Brotherhood, a white racist prison gang associated with illegal drugs and violent escape attempts at prisons. Dawson held that admitting the evidence violated Dawson's First Amendment rights because "the evidence proved nothing more than Dawson's abstract beliefs." Dawson went on to conclude that, after reviewing the record in the case, "one is left with the feeling that the [membership] evidence was employed simply because the [finder of fact] would find these beliefs morally reprehensible."

Here the chain of reasoning that the prosecution attempts to use is even more attenuated than that the Supreme Court condemned in Dawson. Great Old Broads for Wilderness does not advocate illegal actions, but simply urges more careful stewardship of public lands. The prosecution's use of Ms. Chilcoat's membership in the organization appears to be nothing more than an attempt to air before the jury political views that are unpopular in southern Utah (as evidenced by this motion for change of venue that was recently granted). Indeed, there is considerable evidence that the San Juan County Attorney's Office is pursuing this prosecution for political reasons, as we argued (unsuccessfully) to the trial court in this motion to disqualify the prosecutors.

In the Court of Appeals, the prosecutors have filed a response to our petition, arguing the procedural point that the court should not grant interlocutory review in the case. In their view, the issues can be sorted out later—although this approach would appear to create a dangerous "chilling effect" on protected freedom of speech and association, by forcing Mr. Frankin and Ms. Chilcoat to stand trial on these flimsy charges. The court has scheduled oral argument on this preliminary question, and I hope to convince it to grant our petition for review to carefully sort through all the important First Amendment and other questions that are involved through full briefing and argument.

The case has attracted considerable attention, both inside Utah (as shown in these articles found here and here in the Salt Lake Tribune) and outside the state (as shown in this article in the Huffington Post). Indeed, even at the early stage at which this case currently stands, a number of leading environmental organizations (including the Sierra Club, the Center for Biological Diversity, the Grand Canyon Trust, Torrey House Press, and others) filed a motion for leave to file an amicus brief in support of our petition. The Court of Appeals denied the motion, holding that the Utah Rules of Appellate Procedure do not allow amicus filings at the early petition stage. Of course, if the Court grants our petition for review, then further filings would be permitted—allowing a full airing of all the issues. I hope that the Court will take that approach, review the case, and preclude the prosecutors' manuver—thereby preventing an obvious chilling effect on protected freedom of speech and association.

You can read more about Rose Chilcoat and Mark Franklin here. I'll pass along further developments in the Court of Appeals as they occur.

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  1. OK, so… why did the fellow supposedly close the gate then?

    1. The government has to show that the “why” was criminal intent. It’s not up to the defendants to testify against themselves. The principle here is not that they didn’t commit a crime, it’s that the state has to prove it in a permissable way.

      That said, this column is a bit disingenuous in that the couple acted together and were both charged. It’s not random that they looked into the wife’s activism.

      Also, I’m super-curious about the facts behind the felony witness retaliation charges, but I don’t have time to look into it.

      1. Yeah, I get that. I just wanted to hear if they’d said what their supposed reason was. Even if it was as stupid as “We felt like closing a random gate we didn’t own.”

        1. perlchpr, given that it was state land, why do you suppose the stockman owned the gate any more than Franklin and Chilcoat?

          More generally, western public range is extensively fenced and gated. Stockmen get allotments from either state or federal governments to graze livestock. Generally, the rest of the public enjoys access as well. That creates problems for stockmen. Ssometimes folks who know little about what’s going on don’t know which gates are meant to be open, and which are meant to be closed. Predictably, the stockmen get outraged, whether over closing an open gate that shouldn’t have closed, or not closing an open gate that should have closed, or opening a closed gate when that shouldn’t have happened.

          It gets more complicated. A corral near a natural water supply suggests a likelihood that the government, by policy, wants to keep the cattle out of the water. But could also mean the government means to convenience stockmen by giving them a place to deposit cattle near water, so that they can be watered by bringing water from the source. A corral with an open gate, and a big hole in the fence, suggests a stockman who doesn’t like the policy, or the effort to comply.

          Without knowing a lot more, you can’t guess what’s really going on. To me, it could be a prosecutor posturing for a sagebrush rebellion constituency. Or it could be environmental vigilantism, to enforce privately a policy the state has, but has also ignored.

          1. Ooh, this is a good one. Because it was public, this random guy is entitled to mess with it just as much as anyone else.

            Please go try this at a local school or library (I wouldn’t recommend a courthouse) — go in and start opening and closing doors and let us know how it goes.

            Predictably, the stockmen get outraged, whether over closing an open gate that shouldn’t have closed, or not closing an open gate that should have closed, or opening a closed gate when that shouldn’t have happened.

            Amusingly, one thing that people never get outraged about is leaving the gate as found it.

            Or at least personally I will disclaim any desire to hold anyone accountable for that non-action.

            1. Nope. Because for all the stockman knows, the last person through is the guy who improperly opened it. Not to mention, you can’t drive the public roads in many areas without taking responsibility for opening and closing gates as you go through.

              You seem to be assuming the stockman owns the public land, by the way. At least you have company. That’s what the stockmen like to assume too.

              And what are you trying to say with, “random guy?” What would a non-random guy be? Someone with a superior right to use the public land?

              1. Nope. Because for all the stockman knows, the last person through is the guy who improperly opened it.

                I mean, in this case we know who improperly modified it.

                Not to mention, you can’t drive the public roads in many areas without taking responsibility for opening and closing gates as you go through.

                Indeed. Which I’ve done. And the key bit there is to leave all the gates in the same position you found them in.

                You seem to be assuming the stockman owns the public land, by the way. At least you have company. That’s what the stockmen like to assume too.

                You understand that the owners of the public land administer it through a government agency. And that agency can, consistent with the legislature’s guidance, grant certain rights like grazing or mining or drilling for oil.

                And what are you trying to say with, “random guy?” What would a non-random guy be? Someone with a superior right to use the public land?

                A person authorized by the appropriate administrator of the public land to use it for a particular purpose.

                For instance, the public library allows local groups to use various rooms for meetings. An authorized person would be the members of the group scheduled at a particular slot. A ‘random guy’ would be anyone else.

                This isn’t really a hard concept.

      2. Does it take two people to close a gate?

    2. I’m pretty sure the why – or what, when, how – does not matter in this case. I mean, did you look at that picture that Cassell included?! The couple is adorable and looks just like my cute grandparents. Add in that excellent caption: “Mark Franklin and Rose Chilcoat – Attempted Cattle Killers?” and you have your answer; no, that couple certainly couldn’t be killers(!) of cattle. The image that is shown, when mixed in with my pre-existing views of happy, smiling, grandparents, does not comport with a claim of “attempted cattle killers.” Therefore, claim is wrong.

      I assume Cassell included that photo, in color and with caption, in his brief to the court.

      Cassell: “Your honor, if you’ll direct your attention to page 14 of my brief, you’ll find all the evidence needed to show my clients are not guilty.”
      Judge: “Yep, that couple is far too adorable to be attempted cattle killers. I’m satisfied. Case closed.”

    3. I think he said he was just wiping it with a cloth.

    4. Frankly, the trial means he wont’ answer that question. Regardless of his answer, it would be used by the prosecutors. His only defense is to simply not say.

  2. Also, I’m super-curious about the facts behind the felony witness retaliation charges, but I don’t have time to look into it.

    From the HuffPo story: “Chilcoat, 59, sent a letter to the Bureau of Land Management after the incident claiming Odell had “accosted” her and her husband and requested that her complaint be added to Odell’s file with the agency. She also asked BLM to investigate what she thought looked like illegal bulldozing activity on land it leases to Odell. But San Juan County argued that Chilcoat’s letter amounts to “retaliation against a witness, victim, or informant” ? an additional felony charge that would increase her possible sentence to 21 years in prison ? all for allegedly watching someone close a gate.”

    1. The San Juan County prosecutors have now dismissed the witness retaliation charge — apparently concluding, on their own, that they could no longer defend it .

      1. Paul, I’m not a crim defense lawyer, so I don’t know anything about the following…

        Assume this case does go to trial, and therefore in front of a jury. Can the defense use the (now-dropped) charge to show how ridiculous the whole case is? “Ladies and gentlemen of the jury. This was a witch-hunt from the very beginning. They even filed a frivolous “retaliation against a witness” charge because she had the guts to send a protest letter [giving the details of this letter], and that charge threatened her with up to 21 years in prison!!!”

        Or, since that charge was dismissed, can the defense be precluded from referring to it? If so, under what legal theory could that info be kept from a jury?

    2. IIRC (might be mixing up cases), she sent that letter before she was charged with anything.

      So she was “tampering” with a witness to a crime she didn’t know about. Probably a good reason it got dropped.

    3. Wait a minute. This is BLM land? The OP said at the beginning that it was state land.

  3. Without wishing to weigh in on this case, I found Justice Thomas’ dissent in Dawson v Delaware a lot more convincing than the majority opinion.

  4. This argument proves too much.

    Here is an easier case:

    X is a Crip, Y is a Blood. X has never met Y before X shoots Y.

    Should X and Y’s gang affiliations be inadmissible? They are the only thing that explains the shooting.

    1. One involves RICO activities and one involves constitutionally-protected activities.

      1. RICO is a method for prosecuting racketeers. Mere membership in an organization, even the Mafia or the Bloods, does not open one up to prosecution. And a single crime (like in my example), assuming no other predicates, does not open one up to RICO prosecution.

        Moreover, I find it disturbing that the government could label a particular group a “criminal organization” and have it treated different than other groups. I know we kinda do that already for “terrorist” groups, and I don’t feel great about that.

        1. Does the governmemt label domestic organizations as terrorist groups?

    2. Should X and Y’s gang affiliations be inadmissible? They are the only thing that explains the shooting.

      Dawson doesn’t say that you can never use first amendment activities against a defendant; it says that you can only do so if it’s relevant to an issue in the case.? So here, if there were some evidence that the organizations that this couple belonged to advocated that cattle ownership is immoral or the like, it would be proper to introduce their membership. But from reading the news coverage, it appears that the evidence is being introduced simply to poison the well; they belong to unpopular groups, not groups that preach this sort of conduct.

      ?”The question presented in this case is whether the First and Fourteenth Amendments prohibit the introduction in a capital sentencing proceeding of the fact that the defendant was a member of an organization called the Aryan Brotherhood, where the evidence has no relevance to the issues being decided in the proceeding. We hold that they do.” (Emphasis added.)

      1. I think I agree with that. An analogy would be to prior bad acts — where you look at whether the probative value outweighs the prejudicial effects.

    3. “They are the only thing that explains the shooting” is an argument from ignorance – a logical fallacy. And while not all logical fallacies are inadmissible in court, if that’s the entirety of your case, then yes, it should be inadmissible.

      Re: X and Y’s gang affiliations – yes, they also should be inadmissible even if they did not represent a logical fallacy. X intentionally shot Y. Presumably, you have proof of that statement. Why X shot Y doesn’t matter.

    4. If you need to fall back to “He’s a Crip and he was a Blood!” to get a murder conviction, you might have the wrong guy.

  5. Unfortunately your clients, through the use of their 1st Amendment Rights, weighs against your chicken little, clickbait, headline. It appears that while older in age, they apparently still act like 5 y/o children. This article kinda reminds me of your support for the mayor that violated the Constitutional 1A rights of many Houstonians.

  6. I have enjoyed some of Judge Cassell’s writings, but this post is a disappointment. As noted above, Dawson was basically a “that guy is so bad, you should find him guilty of this unrelated crime!” case. If Judge Cassell can’t see the relevance of membership in a conservationist (is that the new “environmentalist”) organization where the defendants just happened to allegedly further that agenda through direct action, then he isn’t trying very hard. And that’s a bit sad.

    Perhaps an advocate should have license to stretch a point on behalf of clients, but I find it weirdly dissonant to read such a ramshackle argument here. And even if I have that distinction exactly backwards, that isn’t exactly helping Judge Cassell’s argument here.

    1. There is a large gap between being concerned with over-grazing and being willing to kill cattle by depriving them of water, especially when the cattle are too few in number to have any real effect on over-grazing. If they had somehow managed to round up and remove thousands of cattle, that would be “direct action”, but the incident in question would be too piddling a contribution to qualify as any kind of “action”.

      And by the way, “conservationist” is not some new-fangled term for “environmentalist”. Rather, it is the original term, still in use, especially by people who do not necessarily want to be associated with more recent and radical movements or with more global concerns.

      1. Bill, assuming this is some kind environmentalist direct action, I doubt the issue is over-grazing. More likely keeping the cattle out of a water supply. Environmentalists have been pressing federal land managers with some success to improve policy to protect wildlife habitat in streams and ponds by keeping livestock out. Stockmen have been pressing back with great success, by ignoring the policies, and getting away with it. An open corral gate and a big hole in the fence could be an example of the latter.

  7. From District Court Judge Lyle R. Anderson’s “Order Disposing of Pending Motions,” Exhibit 2 of the prosecutors response to defense petition:

    “The court conducted a hearing on the following pending motions on May 9, 2018, by telephone conference with defense counsel and the prosecutor present in the courtroom” (1).

    “During the course of the hearing, the San Juan County Attorney, prosecutor for the state in this case, advised the court that counsel for the defendants contacted him in early to mid April, 2018, and informed him that they were prepared to flood him with motion on the approach to trial. None of defense counsel denied this communication. Whether a flood of motions was promised, it has certainly occurred” (2).

    On defense counsel’s motion to disqualify the prosecutor, Kendall Laws:

    “Laws then took the rest of April 17, and part of April 18 to try to find another prosecutor willing to take the case. The Utah Attorney General’s office told him they could not take a case adverse to Paul Cassell, one of the defense attorneys, because there were a number of cases where Cassell was representing the state. No other county prosecutor was wiling or able to step in, and Laws got substantial input from those prosecutors that no disqualification was required and that the defense effort most likely had the purpose of “cherry picking” a prosecutor” (4).

  8. On defense counsel’s motion to admit polygraph evidence of innocence:

    “Defense counsel are experienced attorneys. They are not naive. And yet they have filed a motion that asks this court to be virtually the first court in the United States of America to admit polygraph evidence of innocence over the objection of the prosecution. Invited to suggest when a hearing could be held on the motion, defense counsel offered two days when this court is committed to a jury trial for which a jury has already been summoned, and a third date in the middle of the District Court Judges Conference in St. George, Utah. Moreover, defense counsel was unable to offer any information about the availability of the polygraph examiner, whose current health situation was described as uncertain. … The long delay between administration of the test, and the filing of the Polygraph motions suggest that defense counsel are either not diligent or filed the Polygraph Motions with no genuine purpose or expectation to see them granted. A lawyer who truly wants the results of a December, 2017 polygraph admitted would have filed the motion in January, 2018, for a May trial. And he would have come to today’s hearing with information about the polygrapher’s availability for the hearing. It is difficult for this court to treat seriously something the defense offers almost as an afterthought, and at the very last moment” (7-9).

  9. And with regards to Cassell’s framing of the issue, here is the text from Judge Anderson’s “Ruling on Motion to Quash Bindover”, Exhibit 1 of the prosecutors response to defense petition:

    “The magistrate recognized taht the evidence that Ms. Chilcoat participated in the closing of the gate was circumstantial. It was based on: (1) A letter purportedly signed by Ms. Chilcoat, addressed to the BLM [Bureau of Land Management], produced by the BLM from Odell’s file with the BLM, stating that she had been in the remote portion of San Juan County during the three days in question, with Mr. Franklin. (2) The marital connection between Chilcoat and Franklin. (3) Ms. Chilcoat’s failure to deny any involvement with Franklin’s action in closing the gate, or express any surprise about those actions. (4) Ms. Chilcoat’s position with Great Old Broads for Wilderness, as well as her letter to the BLM, showthat she thinks the world would be a better place if Odell’s catte were gone. (5) The vehicle and the trailer used by Franklin belonged to Chilcoat. …


  10. Chilcoat argues that her position with the Great Old Broads for Wilderness cannot be considered as evidence that she wants Odell’s cattle removed from certain federal lands without violating her First Amendment rights. Chilcoat has the same right as every other citizen to speak out and petition the government. But if those words show a particular interest in the area where the government permits Odell to graze his cattle, and Chilcoat is present in that same area and complaining to the BLM about Odell’s cattle during the same three days where someone allegedly tried to deny those same cattle access to water, her position and her petition are relevant, and need not be disregarded just because they are otherwise perfectly permissible” (3-5).

    From reading Cassell’s narrative and then the prosecutor’s petition and the lower court judge’s rulings, I get the sense that Cassell is literally arguing a different case then the one being addressed by the prosecution and adjudicated by the judge.

    1. Not much sympathy in these comments for the possibility that the state may be using its power improperly.

      From your collective comments, it seems to me that you can conclude:

      1. Counsel for the defendants promised to file a lot of motions. It’s not clear to me why that’s relevant for the merits of those motions unless you’ve already assumed that they’re frivolous.

      2. The judge does not want to be “virtually the first” (i.e., “not the first”) to allow polygraph testimony over the objections of the prosecution. And the defense attorneys gave some dates for a hearing that didn’t work for him.

      3. Ms. Chilcoat was probably, but not certainly, in the area when Mr. Chilcoat closed the gate. Why this is dispositive of her likely participation in closing the gate is not very clear, and the judge takes into account her membership in an environmental group as evidence of the former point, which is already contested.

      4. Ms. Chilcoat belongs to an organization that does not advocate for the action her husband is accused of taking.

      This seems like pretty weak tea, and evidence of very little other than that the judge isn’t a big fan of the Chilcoats’ attorneys.

    2. This later comment from Judge Anderson is pertinent to these points. After noting our argument to the Utah Court of Appeals that the constitution places restrictions on membership in an advocacy group as evidence of illegal activity, Judge Anderson wrote: “This is a serious argument, and it is possible that this judge did not take long enough to consider it. . . . One can, for example, belong to a group that advocates against abortion, tries to circumscribe or even proscribe it, and teaches that it should be criminal to receive or perform an abortion. A member of such group should not thereby be subject to trial for the bombing of an abortion clinic for that reason alone. Other examples could be offered.”

      1. It would appear that we are both capable of using the copy-paste function to quote the district judge. I would imagine the difference is that I am not able to bill a client for the time I spent hitting ctrl-c followed by ctrl-v. As the defendants crowdfunding page shows, they have spent approximately $95,000 so far in legal fees, and I can only infer that your PR activities are part of that fee. However, I am inferring that from your public speech, so maybe that inference is impermissible. Just as your motion to recuse the prosecutor relied on comments he made on Facebook, which presumably are not protected free speech as you argue they can be used to infer bias. The whole free speech thing gets confusing.

        I would be interested in seeing a copy of the letters that Chilcoat wrote to the BLM (referred to as “BLM filings”), as these appear from the briefs to be relevant to the inferences made by the trial judge, but which you and defense council objected to as being allowed into evidence. It appears that what Chilcoat wrote in these letters, and the pictures she included, are pertinent to the prosecution’s argument. I cannot figure out though, from the briefs, motions, and lower court rulings, if Chilcoat wrote in one of these letters that “she thinks the world would be a better place if Odell’s cattle were gone.” This is referenced in quotes, but it is unclear if Chilcoat wrote this in a letter to BLM, or if it was an inference made by the trial judge.

  11. Lots of law I don’t know in this case. I have to wonder about rules related to closing gates on federal land. As the brother of a cattle rancher I know if you opened one of his gates you might well be subject to small arms fire; not to mention facing charges in local courts. I would also point out that cattle are not always the sharpest knife in the drawer and if a gate is closed , even if there is a close by hole in a fence the cattle may not use it.

    I am a regular user of National Parks and know of several where there are gates, and if you mess with them you are subject to fines. But what shocks me most is that with all the rules and laws on the books there is not one about messing around with gates on federal land.

    Disclaimer, I am all in favor of conservation and less grazing/mining/logging on federal land; but do know there are tons of rules and/or laws about how it is done.

  12. Why did the Utah legislature see fit to write such an intent requirement anyway?

    Seems it would be better for both the cattlemen and the 1A if they just criminalized messing with a gate absent proper authorization from either the owner of private land or the appropriate management body for public land.

    Which would kind of just codify a sort of general rule most people absorb in grade school — don’t mess with stuff that doesn’t belong to you and leave things the way you found them.

    1. nonzenze, just curious, and totally hypothetical?would it affect your view of this case if it turned out that by public policy that corral gate was supposed to be kept closed, and the fence kept in good repair?

      1. I would still think that it’s not a good idea for an individual not expressly authorized by the administering agency to close the gate. That’s not how things generally work — we’re not supposed to just go ‘fix things’ any more than I should go to the public school and fix the computers even if it’s public policy that computers in the public schools shall be fixed.

        [ Amusingly, I actually have done this, but you know, in conjunction with the folks that run the school, not by just going in and doing it on my own without getting permission from anyone. Even though it’s a public school. ]

        And as far as who should repair the fence, I guess it depends on the very specifics of the policy. If the law mandated good repair of the fence as a condition on the lessee, then the lessor should absolutely hold them accountable to repair it.

        And if this is all some crazy roundabout way of saying “cattlemen don’t respect their leases”, then I will proactively say. that the BLM (and State analogs) should absolutely hold them to their lease obligations and to compliance with all the relevant Federal (or State, as the case may be) laws.

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