Tuesday, February 24, 2015

A grand jury reform bill?

Guest column: State doesn’t need grand jury reform bill

For The Daily Astorian
There is a growing effort in Salem, led by Rep. Jennifer Williamson, D-Portland, to make a “basic reform” that would “increase transparency” of grand jury proceedings.
SB-365, co-sponsored by Sen. Jeff Kruse, R-Roseburg, proposes to record all questions and answers in grand jury proceedings and make them immediately available to the defense attorneys.
The proposal has gained the approval of The Oregonian  and is on the fast track to approval.
But, like many bills, SB-365 is a solution to a problem that doesn’t exist in Oregon. The only documented case of grand jury abuse in Oregon in the last quarter century happened here in Astoria in 1993. That summer, then-District Attorney Julie Leonhardt, angry at the Astoria Police for not giving “special treatment” to her boyfriend on a reckless driving charge, somehow got the grand jury to charge two police officers of felonies which they had never committed and for which there was no evidence. Leonhardt’s plan fell apart quickly because Oregon grand jury indictments, then and now, must bear the names of any witnesses who testify.
Leonhardt was barred from office by the governor, indicted, recalled, convicted, jailed and eventually disbarred.
Grand jurors are seven people picked at random by court staff. They serve together for two months, act as a check and balance on the power of the district attorney and take an active role in asking questions and deliberating on the cases that come before them. I’ve asked several former grand jurors their opinion of this bill. They think it’s a lousy idea.
If the bill passes, every question by every grand juror, every answer by every witness, will be recorded, primarily to give defense attorneys the opportunity to challenge indictments and to confront victims with any inconsistent responses. My educated guess is that a substantial number of vulnerable victims, who are often terrified of the court system, would simply refuse to testify. The bill will have a particularly chilling effect on victims of child abuse, sex abuse and domestic violence.
SB-365 will not bring Oregon into line with more than 30 other states. Most states, including Idaho and California, forego grand juries in favor of preliminary hearings, a public minitrial without a jury. They are time-consuming and expensive, but do “preserve” testimony, should a witness vanish, refuse to testify again or claim later they can’t remember. Should SB-365 pass, many prosecutors, including myself, may well decide to conduct preliminary hearings on tougher cases. Although the method is different, the outcome is the same: recorded testimony.
You can’t simply drop a $40 recorder on a table and call it good. Each of the three courtrooms in Clatsop County is outfitted with microphones and a recording system that is operated by the courtroom’s judicial assistant. Each recording is marked, timed, logged and secured. The county bore all the cost of including a dedicated grand jury room when it renovated the courthouse a few years ago. Installing a recording system would likewise be on the county’s dollar.
The Oregonian admitted that, “It’s worth noting that secrecy in itself is not a bad thing. The confidential nature of grand jury proceedings means that those who are about to be indicted won’t have advance warning and take off, for instance. Those whom the grand jury declines to indict are never publicly identified, either — saving them from being unfairly stigmatized.”
No prosecutor, no grand juror, wants to charge an innocent person with a crime. We simply don’t have a history of that happening, either in Clatsop County or Oregon. The cost of this bill, both in money and in the trust of victims, is too high. If the legislators truly want to create more “transparency,” why not change the evidence code to allow jurors to know a defendant’s actual criminal history?
At the heart of any “reform” should be an existing injustice. SB-365 is a solution in search of a problem. It only addresses No. 1 on the wish list of the one group who will benefit from it, criminal defense attorneys.
Hundreds of Clatsop County citizens have served as grand jurors just while I’ve been Clatsop County’s district attorney. They are your friends, family, your neighbors. Ask them about what they think of the idea,and how difficult it is to get people often at the worst moments of their life tell their story truthfully and completely.
Joshua Marquis was just sworn in last month to his seventh term as Clatsop County District Attorney.

Monday, February 9, 2015

New Yorker Festival, October 2011

In October 2011, I was one of four panelists invited to discuss capital punishment at the New Yorker Festival. The panel also included Innocence Project founder Barry Scheck, death penalty opponent Danalynn Recer, and crime victim's advocate Marc Klaas.  CNN's Jeffrey Toobin moderated the event at the Directors Guild Theater in Manhattan, New York City.

The video has recently been posted to YouTube. Here it is in full, about an hour and a half of a very interesting debate.

Monday, November 17, 2014

Parole Board not the place to re-adjudicate guilt

The Parole Paradox
Should prisoners for whom there is strong evidence of innocence be required to admit guilt to be granted parole?

Parole Boards Shouldn’t Provide Incentives for Claims of Innocence
NOVEMBER 13, 2014

Joshua Marquis is the district attorney in Astoria, Ore., and co author of "Debating the Death Penalty."

We are approaching a point in our criminal justice system where even the guilty are regarded as innocent, and no one is responsible – unless there is absolutely, positively, 100-percent perfect DNA evidence available. And even then, well, there are always legal technicalities.

The justice system is a work in progress and not perfect. There are a tiny number of people who have been convicted and were in fact innocent. But a parole board, where virtually nothing about the case or the victims or the evidence is important, is not the place to re-adjudicate guilt.

Many decry the decades-long appeals convicted murderers get, but that is how the wrongly convicted get justice, not from a overly sympathetic parole board.

It’s not surprising then that more prison inmates smell freedom amid all this confusion. They read the news. They talk to one another. They know the trends. They know it’s now possible for even a guilty man to be cast as the victim – especially if the guilty man claims innocence.

"Truth in sentencing” laws have eliminated many parole boards. Parole hearings in Oregon are only for inmates sentenced before 1992. They generally limit the district attorney and the victim's representative to 15 minutes each to address the release of the man who profoundly affected the victim's life. The inmate and his representative can go on for hours.

Nothing changes for the victim no matter what the killer wants to tell the parole board. And when does the victim get parole? Likely, never. "Closure" is an elusive concept.

What’s troubling about the stories of murderers who insist on their innocence after pleading guilty 25 years ago, is how the stories turn those killers into celebrated victims who – unlike the dead victims – can give interviews and talk about their years in prison. It feeds the myth that our prisons are full of innocent men, when in fact our prisons are full of criminals who were finally caught.

The claim that so many are actually innocent is largely an urban legend, seriously undermined last week when the supposed innocence of Anthony Porter, a former Illinois death row inmate, fell apart.

At a murder trial, a defense attorney once asked jurors,"Is mercy earned or bestowed?" I argued that in order for mercy to be bestowed, it must be earned.

Read the Opinion on the NY Times website.