Alleged tree thief claims protection by England’s Charter of the Forest
An 800-year-old English charter that was hugely consequential for establishing rights of people to use public lands also protects a rural Rolfe man accused of illegally cutting down and stealing dozens of trees from a wildlife management area in northwest Iowa, the man’s attorney argues.
That is among several reasons why Jason Levant Ferguson, 41, wants a judge to reverse a jury’s verdict last month that he is guilty of 51 charges for taking the trees without permission from public property in Pocahontas County.
His attorney, Kevin Fors, of Harcourt, argues that the provisions of the Charter of the Forest — issued in 1217 by King Henry III — were transferred by common law to the United States when it declared independence from England, according to documents Fors filed in state district court.
Fors points to a paragraph in the charter that says: “Every freeman may agest his own wood within our forest at his pleasure and shall take his pawnage.”
“When we have the need to depend upon these rights, they need to be there for our protection or our society will not endure and we will spiral into authoritarianism much the same as happened in the time before the Charter of the Forest,” Fors wrote.
Ferguson allegedly took more than 100 trees from the Stoddard Wildlife Management Area over the course of more than a year and planned to use the lumber to build a house, according to court records. One of the trees was a very old bur oak that was six feet in diameter at its base.
Claims news coverage tainted jury
The Iowa Capital Dispatch published a news article several days before Ferguson’s trial about timber thefts in the state that, in part, detailed the accusations against him. It was republished by several newspapers.
“This article was picked up by other sources and was so dominate that it became an issue at a political rally of presidential politicians in Pocahontas during the trial,” Fors wrote. He did not elaborate.
The article included information about Ferguson’s status as a felon and that a search of his property yielded evidence that someone was growing marijuana and manufacturing methamphetamine there. The article detailed how that evidence was suppressed because the search was improperly approved by a magistrate.
Fors said jurors would have likely seen the news coverage and that “the State” had colluded with Capital Dispatch to influence jurors.
“It is well known that in Russia the State uses the news to assert its position; this has been especially noticeable since the start of the war in Ukraine,” Fors wrote. “This is the first time I have been involved in a case where those tactics were used by the State so vehemently against my client.”
The Iowa Department of Natural Resources, which was the Capital Dispatch’s primary source of information about timber thefts, provided that information at a reporter’s request and had no influence over what the article contained or when it published.
Court records indicate potential jurors were asked whether they had seen news coverage of the allegations against Ferguson. The trial went for four days, and judges often admonish jurors to avoid news media during breaks in trials.
The Fort Dodge Messenger newspaper had published an article more than a year ago that detailed drug and weapons allegations against Ferguson.
Defense attorney claims he erred
Fors, who has been a licensed attorney in Iowa for nearly 40 years, also said he failed to object to a prosecution argument that Fors claims violated Ferguson’s right against self-incrimination.
“Defendant’s attorney has only been trying one jury trial a year since the beginning of the pandemic and as such was rusty and did not object to the testimony at trial,” Fors wrote. “This failure to object was a failure to provide the defendant with effective assistance of counsel.”
Fors said it was improper for the prosecutor to criticize the defense for not producing a witness to testify that Ferguson had previously had permission to take trees from the property, as he had claimed.
Fors argued that because Ferguson himself could have testified about the issue, the prosecutor’s argument insinuated Ferguson is guilty because he didn’t testify, which would violate the Fifth Amendment. He said his failure to object would most likely be the subject of a post-conviction appeal if a judge accepts the jury’s verdict.
Ferguson seeks an acquittal or a new trial. He is set to be sentenced next month and faces up to five years in prison for a felony theft charge and one year each for 50 timber buyer violation charges.
Pocahontas County Attorney Daniel Feistner, who is prosecuting the case, has not yet filed written responses to Fors’ motions. He told Iowa Capital Dispatch he anticipates the issues will be discussed at a hearing prior to sentencing.