**Update **DA ignores first amendment violations; Washington Post comments

Bryon Garrison
The DA denies mark on Arrielle Lipsen's neck came from the butt of a rifle.
The DA denies mark on Arrielle Lipsen's neck came from the butt of a rifle.

District attorney Rod Ponton released a statement late Wednesday, denying once again the allegations made by Ilana Lipsen, and corroborated by business owner Tom Cochran, regarding the heavy handed behavior of federal agents during a raid on the Purple Zone on May 7th. Ponton referenced the letter that Lipsen wrote as a condition of her release, as evidence that the statements made by her and Cochran were not true. Ponton stated “assertions previously made in this matter by Ilana Lipsen or Tom Cochran are not true. Ms. Lipsen has published a public retraction of her previous statements, and apology.”

The letter Lipsen was forced to write and the handwritten instructions on what to write from U.S. Magistrate Judge B. Dwight Goains.
The letter Lipsen was forced to write and the handwritten instructions on what to write from U.S. Magistrate Judge B. Dwight Goains.

Big Bend Courier broke the story about the unusual bond requirements and the explosive follow up article when a witness came forward  to testify of the alleged heavy-handed behavior by federal agents. The story gained national attention, went viral and got the attention of the Washington Post.

The public retraction, as we have learned, may be a violation of Ms Lipsen's First Amendment rights, according to Washington Post columnist, Eugene Volokh, who weighed in on the matter after the story went viral in recent days. Volokh is a highly respected lawyer who writes about free speech for The Post. Volokh states, “[I]t’s an order compelling speech, on threat of imprisonment, which would itself normally be a First Amendment violation; but on top of that, it was issued without a trial, and thus without any final factual findings supporting its validity.”

Mr. Ponton asserts that Lipsen was not compelled nor coerced to recant her allegations, however, there is a document that seems to suggest otherwise. This document requires Ms. Lipsen to recant her previous statements, disavow statements made by Tom Cochran and apologize to federal agents as a condition of her release from custody.

Ponton said, “Ms. Lipsen and her sister were indicted by a federal grand jury last week. Ms. Lipsen voluntarily signed her retraction letter after consulting with her defense counsel in federal court, no coercion was involved. Ms. Lipsen told the federal judge that she wanted to sign the letter. Her federal charges are pending.”

Mr. Volokh also had an opinion about this. “I’m aware that, once someone is convicted, courts have considerable latitude to impose speech restrictions as a condition of parole or probation and might even be able to impose speech compulsions. But that is after someone’s guilt has been proven beyond a reasonable doubt in a criminal trial. The defendant here hasn’t been convicted of anything; she continues to be presumed innocent until proven guilty.”

Volokh makes another interesting point in his Washington Post article. ”Here, the conditions seem to be tied simply to correcting what the magistrate judge thinks are factual errors,” he states. “But a court can’t just compel someone who hasn’t been convicted of any crime to recant her accusations against government officials. If the statements are found to be false at a trial, that might lead to damages, liability or criminal punishment — or potentially even an injunction. If Ms. Lipsen is found to be guilty of some other crime, it’s possible that some speech restrictions could be imposed on her as a condition of any probation or parole (though I’m not sure that these restrictions properly can be). But absent any such trial and verdict, the bail condition seems to be a clear violation of the First Amendment.” 

A clear violation of the First Amendment. That is a strong indictment of those who have sworn to uphold the Constitution.

Mr. Ponton doubled down on his accusations against the Lipsens. “The material seized on 5/7/2014 from the Purple Zone was not an herb, its exact chemical compound is being tested by a DEA laboratory. Agents did not behave badly during the lawful search on 5/7/2014. The alleged FBI investigation is over, it resulted in the indictment of Ariel Lipsen for assaulting a federal employee,” Ponton stated.

There appears to be a problem with these public assertions about the nature of the evidence and testing procedures and the veracity of the statements by the Lipsens. The following is taken from the United States Attorney Manual states 1-7.550 “Because the release of certain types of information could tend to prejudice an adjudicative proceeding, Department personnel should refrain from making available… Observations about a defendant's character; Statements, admissions, confessions, or alibis attributable to a defendant, or the refusal or failure of the accused to make a statement; Reference to investigative procedures, such as fingerprints, polygraph examinations, ballistic tests, or forensic services, including DNA testing, or to the refusal by the defendant to submit to such tests or examinations.”  

This is not about whether the Lipsens are innocent or guilty, that should be decided in a court of law. The Lipsens are entitled to due process. This is about the alleged violation of First Amendment rights and abuse of authority by government officials. Today it's the Lipsens. Tomorrow, it could be anyone, the butt of a rifle at our throats, an over-zealous agent telling us that he doesn't need to show us a f—g warrant, and a judge demanding we recant statements and apologize to those who have (allegedly) violated our Constitutional rights.       

 

 

 

 

 

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