The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.