Airport police told attorney ‘we run the show’ before trespass arrest but jury acquitted him

A Multnomah County jury this week acquitted a criminal defense attorney of trespass — the second time in two months that jurors rejected a prosecutor’s claims that he committed a crime by refusing to leave the Portland airport.

Other defense lawyers attended the closing arguments Wednesday and waited for the verdict for Ernest Clarke Zacher, who worked two years with the Metropolitan Public Defender’s office and the past year in private practice.

Body camera video in the case showed a Port of Portland police officer telling Zacher that “we run the show” and an intoxicated Zacher divulging that he worked as a defense attorney and knew the police lacked probable cause. Zacher’s lawyers raised allegations of malicious prosecution, which a judge swiftly rejected.

A six-person jury spent four hours deliberating before it acquitted Zacher after a three-day trial. A trial in October ended with a hung jury.

Zacher arrived at Portland International Airport just before midnight on July 12 and proceeded to United Airlines gate E7. He had consumed six White Claw hard seltzer drinks before his arrival, according to court records.

Airline staff had denied him entry to the boarding ramp for his first-class seat to Washington Dulles International Airport via Chicago.

They testified that they had flagged Zacher, 44, as what they considered a “yellow light” concern and confiscated his boarding pass because he was belligerent, rude and pounded on the counter.

At first, airline gate workers told Zacher there was a problem with his seat assignment and directed him to sit to the side of the gate’s counter, his lawyers said. Ultimately, a United Airlines operations supervisor told Zacher he was canceling his ticket that night and would rebook him, Zacher said.

Later, one of the airline representatives decided not to rebook him and called the port police, according to court testimony.

Two officers arrived. As Officer Colby Wilkie pulled on rubber gloves and said hello, Zacher responded, “I have nothing to say” as he sat alone near the gate.

Body camera footage shows that Wilkie responded: “I don’t care. Give me your ID.”

Zacher refused to provide his name or ID, contending that police had no legal justification to demand them.

Wilkie said he was trespassing. When Zacher told the officer he wasn’t, Wilkie asked him why he believed that.

“I am a criminal defense attorney,” Zacher said. “I know how this works and you don’t have probable cause.”

Wilkie’s partner, Officer Marinna Ordiway, shot back: “We don’t care. We run the show,” according to the video.

Zacher started to smile at that. “So that’s great … that’s perfect,” he said.

Zacher, who was slurring his speech, remained seated by the gate as Wilkie ultimately gave him the choice to leave immediately or face arrest. Zacher sprung to his feet and extended both hands in front of him and was handcuffed.

At one point, Ordiway told him that she recognized him from court, quipped that he left his signature snakeskin boots at home and told him that he should “know better.”

Zacher, in turn, commented on her physical appearance and insisted that the officers call him “counselor,” according to the body camera footage.

Deputy District Attorney Eric Pickard argued that Zacher’s choice to be arrested was proof that he was guilty of second-degree criminal trespass.

“Nobody is above the law,” Pickard told the jury. “Who are we talking about here? We’re not talking about Nelson Mandela fighting against apartheid, but a guy who shows up to the airport late and thinks he’s entitled and is behaving like a jerk.”

Zacher no longer had authorization to be in the TSA-screened area of the airport, Pickard said.

Defense lawyer Alexandra A. Eason countered that the state failed to prove that Zacher knew he was trespassing. He believed that the airline was rebooking him on another flight, she said.

“In his heart of hearts, he believed he had a legitimate reason to remain there,” she said.

And while she acknowledged that Zacher wasn’t at his best, she said the officer’s “we run the show” remark should concern jurors.

“Mr. Zacher challenges authority … and the powers that be didn’t like it,” she said. “Just because they’re in a position of power doesn’t mean they’re right.”

Eason argued that Wilkie immediately escalated the encounter and failed to give Zacher any real notice or explanation of his expulsion from the airport.

Before the trial got underway, Eason and her co-counsel, Edward LeClaire, unsuccessfully argued that the decision by the Multnomah County District Attorney’s Office to retry Zacher amounted to vindictive and selective prosecution.

They characterized Zacher as a “zealous” defense attorney who had gone up against Pickard in at least three jury trials since 2022 and “beat the state” in each by obtaining not guilty verdicts on various charges.

Eason also alleged there was a disparity in how Pickard amended the elements of the trespass charge against Zacher a day before his first trial to include lower culpable mental standards – recklessness or criminal negligence – to prove second-degree trespass, compared to most other similar prosecutions that have required the higher standard, that a person knowingly committed the crime.

Since Pickard argued at trial that Zacher deliberately chose to remain in the airport unlawfully, “the jury should hold the state to the burden of proving” it, Eason said.

Pickard, who reviews Port of Portland cases for prosecution, told Judge Rima Ghandour that the defense had no evidence to subject him to “personal attacks and insinuated misconduct.”

“I did not pick Mr. Zacher to be a defendant in the case,” he said.

The judge privately reviewed emails sent within the district attorney’s office regarding its decision to retry Zacher on the Class C misdemeanor and then denied further requests from the defense for additional information to try to prove their allegation.

Multnomah County Senior Deputy District Attorney Kevin Demer said in an email that two judges “declined to find that our office proceeded in a manner that violated Mr. Zacher’s rights.”

“We apply the law equally to all individuals regardless of their occupation,” he said. “This case factually addressed specific airport rules and DDA Eric Pickard is the expert in that area.”

Demer added: “While we are disappointed with the outcome, we fully respect the jury’s verdict … It is our hope that (Zacher) changes his future behavior.”

Despite his arrest, Zacher with the help of friends booked a flight in first-class the next day on Delta Airlines out of Portland International Airport to Washington, D.C. , where he retrieved the luggage that had arrived from the flight he wasn’t allowed to take. Though he faced a 90-day exclusion from the Portland airport, he was allowed to show up and get on the plane, without loitering in the airport.

He made it to his final destination: a two-week National Criminal Defense College trial practice training institute.

While he was on pretrial release, the county sheriff’s office revoked Zacher’s special courthouse pass that had allowed him to avoid the Multnomah County courthouse’s main security entrance and lines of people going through metal detectors.

With his acquittal, he said he hopes to apply for one again.

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