By his own account Mark Webber is a lot of things. He’s an entrepreneur, a volunteer, a pilot, a musician and a community organizer. One thing Webber says that he is not is a drunk driver, even if his record says otherwise. It’s this belief that’s led Webber on a crusade of sorts against the man who prosecuted him despite the fact that a breathalyzer test showed Webber had a blood alcohol level that was less than half of the legal limit.
Webber, who gets around these days on a pair of bicycles that are parked outside his modest bungalow house on K Street in Lakeview, isn’t the only person in town, or in Lake County, to take issue with the community’s veteran district attorney David Schutt, a tough talking prosecutor who is known for showing up to court with a sidearm and deriding visiting defense attorneys.
In May, Lake County residents voted overwhelmingly to show the 12-year prosecutor the door, voting almost 2-1 in favor of his opponent, a retired Grants Pass city attorney who grew up in Lakeview.
Many saw the vote as a referendum on what some residents, including Webber, say is Mr. Schutt’s heavy-handed approach to prosecution.
While the campaign is now over and Schutt’s challenger Ulys Stapleton waits to take the reins in January when Schutt’s term formally ends, opponents led by Webber say they aren’t willing to wait that long. Rather than let the election cycle take its course, they’ve mounted a recall campaign that could force Schutt out of office in a matter of weeks, not months.
It’s a time and money consuming effort that highlights how small town politics and personality conflicts can erode the authority of the top law enforcement official. It also underscores the difficulty of balancing public safety and civil liberties even in one of Oregon’s safest cities.
The Poster Child
Webber who retired to Lakeview from Southern California in part because of its low crime rate and leisurely pace, holds himself up as the poster child for overzealous prosecution. His story and the issue of DUII enforcement became a pivotal part of the campaign this past spring.
Webber said he was on his way home from an evening walk with his dogs, a ritual that he undertook daily, when he was pulled over for failing to come to a complete stop.
Webber divulged that he’d had a beer or two prior to driving and then failed a field sobriety test, which he chalks up to a bad foot that impedes his movement.
By the time Webber was booked in the nearby jail he blew .03, less than half of the legal limit of .08. However, under a provision that provides law enforcement officials and prosecutors wide discretion to determine that someone can be legally intoxicated even at relatively low blood alcohol levels, Webber was charged with DUII.
The idea behind the law is that different people react differently to alcohol and that some intoxicants such as marijuana and other drugs don’t show up in a breath test. But it leaves the door open for an officer to supplant observation for objective testing.
In Webber’s case, Schutt said the arresting officer saw Webber’s car hit the curb when he was pulled over, prior to failing the field sobriety, which typically involves walking and balance tests as well as an eye-tracking test.
“I have a police officer who saw him commit violations and then he failed the sobriety test,” said Schutt in a phone interview this week from his office in Lakeview.
But it took two juries to convict Webber of drunk driving, something that critics, including Webber’s opponent, say is a poor use of public resources.
Schutt says the conviction reinforces the fact that Webber was not fit to drive, no matter what his blood alcohol rating might have been. He touts the fact his office has not had one drunk driving fatality in the past decade. That’s compared to about 70 deaths statewide in 2010.
Schutt’s opponent Stapleton, who served as prosecutor in Klamath Falls and later in Lincoln County, said he heard from a significant number of people that Lakeview police and prosecutors were on a crusade that went beyond common sense, particularly when it came to DUII enforcement.
“People were afraid to come downtown and have a glass of wine with dinner for fear they would be arrested,” said Stapleton.
Stapleton, who is a member of the LDS Church and doesn’t drink, said prosecuting people for driving below the legal limit punishes the wrong people.
“We tell people to drink responsibly and they drink responsibly and we prosecute them anyway. It sends the wrong message,” Stapleton said.
He chalks Webber’s conviction up to the fact that Webber decided to represent himself at jury trial rather than hire a professional lawyer. According to Schutt, Webber claimed, among other things during the trial, that people who drink shouldn’t be prohibited from driving but rather should be required to drive slower.
“My opinion of lawyers is that they just take money from a situation until it resolves itself,” said Webber, who keeps a roll of “question authority” stickers in his living room along with a roll of “bad cop, no donut” stickers.
Visiting with Webber, it’s easy to see how he could dig himself a deep hole in a courtroom. A self taught handyman who made a living servicing industrial kitchen appliances, Webber tends to say whatever is on his mind at any given time. He’s also prone to conspiracy theories, including the notion that law enforcement is monitoring his Internet activity. (He had the service disconnected and now goes to the library, which is located just down the hallway from the D.A.’s office in downtown Lakeview.)
His Lakeview home is as scattered as his thoughts. The lone piece of furniture is a reclining chair that sits perched a few feet away from an old tube television hemmed in by dozens of VHS tapes.
Webber moved to Lakeview in 2004 to get out of the rat race and because of the world-class hang gliding just outside of town that allows him to indulge in his favorite hobby. He’s a practical joker who famously dyed his dog green to spice up the local St. Patrick’s Day parade for which he also served as the marshal.
While Webber is certainly fun loving, he’s also stubborn. He spent two nights in jail after his DUII arrest because of his failure to maintain an Oregon driver’s license, something he chalks up to poor customer service at the DMV. But he’s known more widely for another stunt that’s rubbed local cops the wrong way—an overturned ATV in the front yard of his “second” home in Lakeview.
It’s a display that Webber erected as a protest against the now defunct motor sports dealer that sold him the unit then refused to repair it under a recently expired warranty when it broke soon after the purchase. Webber capped off the stunt by affixing a makeshift mannequin to the overturned ATV, which at a glance resembles an accident scene to passersby, at least that’s what police told Webber when they asked him to remove the vehicle from his lawn.
Webber has refused. Instead, he took out an ad in the local paper offering to sell the “artwork” for several thousand dollars, which he claimed was a discount. According to Webber, police were not amused. Lakeview Police Chief Jeff Kamp, a Schutt supporter, declined to be interviewed for this story.
For his part Schutt says his reputation as an overzealous prosecutor is both undeserved and unsubstantiated. Critics have been long on generalities and short on cases of prosecutorial misconduct. While has had roughly half a dozen bar complaints brought against him, all of them have been dismissed save the most recent, which is under appeal from the complainant after an administrative review cleared Schutt of wrongdoing in an assault prosecution. Schutt points out that no district attorney has lasted much longer than a decade in Eastern Oregon and that no district attorney has survived a primary challenge in Lake County, where cases come and go, but grudges endure.
“When I took this job, I didn’t think I would retire here. And I’ve worked my three terms and it’s time to move on,” Schutt said.
If the eccentric Webber is the face of the recall election, then Orlando Gonzalez is the brains, or at least the spirit.
A retired Forest Service employee, Gonzalez served as the district ranger in Bly, Oregon, before finishing in Lakeview where he worked on civil rights issues for the supervisor’s office. By the time he retired, Gonzalez had taken his civil rights training outside the office and begun advocating for the rights of the Hispanic community in Lake County, a population that he felt was being targeted for discrimination and harassment by law enforcement.
However, it was Gonzalez’ own brush with law enforcement that turned him from an advocate into an antagonist, at least when it came to the local DA’s office. And this is where the story takes a turn of the small town soap opera type.
According to Gonzalez, his troubles with the DA’s office began when he and his wife, Bonnie, who is chronically ill, and for whom Gonzalez serves as a caretaker, had an argument on the way out the door to a doctor’s appointment. Gonzalez said his wife decided to call the police to intervene in what was a mild dispute. By the time police arrived cooler heads had prevailed.
Police, however, believe they had found evidence of a crime and charged Gonzalez’s wife, who breathes with the assistance of an air tank, with assault. According to Gonzalez’s attorney David Force, of Eugene, police alleged that Gonzalez’s wife cut him on the hand during the argument. Both Gonzalez and his wife deny that’s what happened. But police and prosecutor Schutt moved ahead with charges regardless.
That was more than two years ago and the case has still not been resolved, in part because Bonnie Gonzalez has been too sick to appear in court. According to Schutt, who declined to discuss details of the criminal case, Bonnie Gonzalez is now a fugitive, a notion that Force finds ridiculous, given that she’s been in the city attorney’s office since then to record depositions.
The couple is now suing the city and several police officers in federal court alleging a violation of their civil rights.
“Orlando is convinced that [the D.A.] has a vendetta against him and that may be part of it. Obviously the voters down in Lake County think that Mr. Schutt is a vindictive person…I don’t know the man personally or have an opinion as to what his motives are, but I think it’s utterly bizarre. You simply cannot prosecute someone for assault if both the victim and the other person say it never happened,” Force said.
Force said one aspect of the prosecution stands out as particularly egregious and that’s a decision by Schutt to seek a no-contact order, essentially a restraining order, that prohibited Bonnie Gonzalez from having contact with her husband, which would have prohibited him from serving as her medical caregiver.
Bonnie Gonzalez has since relocated to Albany making the criminal issue largely a moot point. However the threat of arrest and jail is something that remains as long as the DA refuses to dismiss the charges.
“My hope is, and there is no guarantee, that when there is a new DA, whether it’s by recall or the end of Mr. Schutt’s term, whoever is the new DA will look at this [case] and say obviously this is silly,” said Force.
In the meantime, Orlando Gonzalez and Webber continue to collect signatures in hopes of putting the recall question to voters.
The pair, working with other volunteer signature gatherers, turned in more than 600 signatures to the Secretary of States office in early June. However the petition was rejected on a technicality.
Undeterred, Webber and Orlando Gonzalez started another effort just two weeks ago that they hope to wrap up before the middle of July. Assuming the signatures are validated, that could set up a recall election before the end of August or early September, a scant four months before the end of Schutt’s elected term.
At this point, it’s a matter of principle as much as politics, according to Webber and Gonzalez.
“It’s a community problem and we have to solve it. We’re not solving it for Mark or Orlando, we’re solving it for the community,” Orlando Gonzalez said.
House Bill 2320 would require adults to wear lifejackets, even on non-motorized watercraft