Thursday, October 25, 2007

Guest column: DA shares his view on ballot isssue

By Josh Marquis
For The Daily Astorian
Thursday, October 25, 2007

With Measure 4-123 you have the chance to cast a vote that will send a message about the importance of the independence of your elected district attorney.

In any community, perhaps particularly in a small one like ours, it's not unusual for prominent and influential citizens or their friends and families to become either the victim of a crime or the suspect in a crime. And we all know that it hasn't been so many years since many in the county felt that if you just knew the right person in the DA's office, a criminal case could be made to disappear.

The pervasiveness of that sort of thinking, whether it's really true or not, creates enormous distrust. Citizens may feel that the very fabric of a fair system of justice, in which everyone is equal before the law, is made of whole cloth. That was the environment when I was appointed district attorney in 1994.

It took a few years and the will and resources of previous county commissions to rebuild the office of the district attorney. My philosophy and policies of aggressive advocacy tempered with fairness have restored community confidence in the office and have instilled self-confidence and increased professionalism in the now 18 men and women who work for me.

Some of the decisions the district attorney's office makes are not particularly popular. We don't seek to be popular. Nor do we seek to be feared. We seek to be respected, and I think we are succeeding. Victims report great satisfaction with the way the district attorney's office represents their interests. We enjoy good working relationships with the police agencies, the judges and the many nonprofit agencies that provide support to law enforcement and victims.

Yet this is not enough for most of our current county commissioners. After several failed attempts to convince me to change my well-working philosophy and practices of conducting the work of the district attorney's office, they did the one thing they can do with alacrity: eliminate the supplementary pay the county has provided for the past 12 years - 15 percent of my annual salary. With no good reason. And no notice whatsoever.

I was hit square upside the head on May 14, when the majority of the commission voted to eliminate - immediately upon formal adoption of the budget the next month - my $13,900 annual supplement.

The county has supplemented my state salary for the past 12 years because I am a county department head, with all the duties of every other county department head. Thirty to 40 percent of my time is spent hiring, training and supervising the six lawyers and 11 support staff in my office, and managing the department's budget of $1.3 million of your county tax dollars - frugally and creatively, returning tens of thousands of dollars to the general fund each year.

The commissioners say they have no idea what I do or what my office does, despite very detailed annual budget presentations and a $10,000 workload study that they commissioned last year.

Ironically, while they say they have no idea what I do, they've asked me to file more cases, particularly felonies, because the state provides money to the county probation department when people are convicted of felonies and receive a sentence of probation.

The commissioners don't want a fair and impartial system of justice. They want a revenue stream.

I refuse.

Their response? Personal attacks on me and my family. Using your tax dollars to fight an enormously popular ballot initiative. Lying in the paper, at meetings and in glossy mailers.

You are probably sick and tired of this fighting. So am I. Since April I've invited them to come to the courthouse any day, or to meet with me in any forum they prefer. They refuse. They've even hired a Portland law firm, again using your tax dollars, to represent them so that I cannot even approach them at a public county commission meeting.

The only resolution these commissioners are interested in is one that forces me to resign my principles or to simply go away.

The message sent by your "yes" vote on Measure 4-123 is this: The office of the district attorney of Clatsop County provides a tremendous service to the county, and it is the elected district attorney who should make the decisions about how the office operates.

I thank you for your support over the years.



Josh Marquis has been Clatsop County DA since 1994, when he was appointed by Gov. Barbara Roberts. He was elected later that year in a contested election by a 3-to-1 margin and was re-elected in 1998, 2002 and 2006.

Wednesday, October 17, 2007

Q&A

Over the last few days I've been asked a number of questions by some of our local media. Here are their questions and my answers.

1. Does your office have access to a management software program that can generate data on the workload in your office?

The DACMS (District Attorney's Case Management System) contains the raw data from which questions can be asked and answered. The most important starting point is, "What do you want to know?" There is no one in my office with the capability of managing such software but I think the DACMS system could be programmed by an IT person to generate any number of reports. In many counties the IT department devotes an entire programmer to the DA's office because of the unique requirements of that office. Otherwise, the workload of my office is most easily measured by examining court data, although that does not include the many cases we screen out.


2. If you have this software available why not just give those workload measurements to the county?

As noted above, the software is available but is not currently configured to provide the measurements the county has requested.

However, the workload measurements were given to the county in the 2006 LGPI (Local Government Personnel Insitute) report. LGPI was selected by County Manager Scott Derickson, commissioned by Mr. Derickson and reported back to Mr. Derickson. LGPI used data that can actually be compared from one county to another -- usually data from the OJIN (Oregon Justice Information Network). Much of this data is very easily accessed. You can find a link to the LGPI workload study and its executive summary here.

Neither the Commissioners nor Mr. Derickson have ever told me what they want measured, despite a number of written requests -- better to say pleas -- from me. Do they want conviction rates? Do they want number of cases declined? Much of this information could be generated, albeit at some time and expense mainly to staff. But before we start generating any reports we have to know what they want. The DA's office is a very lean operation, with every single employee directly providing prosecution services. Ask the LGPI consultant, Diana Moffat, who prepared the study.


3. If you don’t have software of this type, does someone keep track of how many hours your lawyers put in?

No. Unlike law firms that bill by the hour, no DA's office that I know of keeps hourly billing. It is extremely time intensive. It makes a lot of sense when you are billing a client $2,405.00 and need to justify that bill, but it is meaningless in the public sector context. This is precisely where I, as the department head, spend time managing my staff, making sure they are indeed putting in the necessary time on the necessary duties. I am quite confident that the taxpayers are getting at least 50 hours a week from most if not all of my lawyers, and that those lawyers are working for the public during all of those hours.

There is a reason most counties pay supplements averaging $19,000 a year to their elected DAs: They are getting a darned good bargain for a county department head.


4. On plea bargaining: Who, besides Commissioner Ann Samuelson, has seriously suggested you not accept a felony conversion to a misdemeanor. You said you are feeling pressured to do so.

Besides a County Commissioner? Cora Lane, the Director of Community Corrections, has told me point blank that she wants more felonies simply because that is how she is funded.

Mr. Derickson and Central Services director Mike Robison attempted to glean what "percentage of plea bargains" were listed in the DACMS when they churned out their April 2007 report in an attempt to repudiate the April 2006 LGPI workload study. My question is: Why does the county manager want to know the rate of plea bargains?


5. Did you have a direct hand in writing measure 4-123? Did you advise the committee who has brought it forward for a vote?

I advised Commissioner Sam Patrick after he contacted me about his idea of a charter amendment setting the DA's pay. I talked about the need for any such effort to be separate from me and my control. Commissioner Patrick and Don Haskell asked me what sort of standard might best be used to determine a DA's salary. I told them that the Oregon DA's Association has been lobbying the legislature for years to peg DA salaries to that of circuit court judges, a common practice in many states (Texas being one that immediately comes to mind).

I have never said I had "nothing to do" with the formation of this committee. I said I was not the originator of it or its generating force. You would have to believe that people like Don Haskell, Sky Olsen and Larry Taylor would allow themselves to be manipulated to believe that my hand is behind all this. I was in China when most of the work putting the committee got started (as evidenced by the June 4 e-mail which was in fact sent from Beijing International Airport).

I have attended some of the committee's meetings and answered questions much like I am doing right now.


6. Did someone within the leadership of the state DA association have a hand in this?

No. Other DA's have been very supportive and written letters but no other DA has been involved in any way to my knowledge.


7. Does measure 4-123 have the potential to justify a statewide measure if it is successful?

Measure 4-123 has started the first-ever statewide conversation about DA pay, as evidenced by editorials in the Oregonian on August 1 and the Eugene Register-Guard shortly thereafter. Many DAs do not want the supplement issue messed with, most having good relationships with their County Commissions. Measure 4-123, if passed, will prompt the legislature to examine DA pay and finally do something about it.
By contrast, the act of cutting my supplement is of no interest any more than it was when it happened in Coos, Polk, or Hood River counties years ago.


8. Did you force this situation to further the goals of the DA association in linking DA pay to Circuit Court Judge pay? Are you the guinea pig?

Absolutely not. This situation is very uncomfortable for me with my colleagues, most of whom are treated well by their county governments. This has been sheer torture if evidenced by nothing more than my weight loss of almost 30 pounds over the past year, which I wish I could attribute to good health and exercise but is nothing more than sheer stress.


9. Why did we need a third circuit court judge in the first place?


Judge Phil Nelson and Judge Paula Brownhill two incredibly hard-working judges, have been lobbying for another judge for nearly 10 years. (Judge Brownhill started the lobbying hard with the Gleaves Commission.) Columbia County, with a similar population but much lower case filings, has had three judges for some time; and Tillamook, with about half our filings, has had two judges and a justice of the peace.

Bottom line is that the two judges were working 60+ hour weeks; the dockets were so packed that all lawyers -- prosecutors, criminal and civil -- were complaining; and citizens (victims, accused, and civil clients) were not getting a reasonably speedy timely resolution of cases.

Although I knew it would mean nothing more than more work -- probably with little or no funding -- I actively supported the third judge. At one point I was the only local attorney who went with Judge Brownhill to Salem to pitch the case. Sen. Betsy Johnson sealed the deal in the 2003 legislature when that body approved the creation of four new judgeships, one each for Clatsop, Umatilla, Clackamas and Jackson counties.

It's not hard to see the reason. Just go to the state court website for cases file for the last five years and you'll see that Clatsop has much more than its share - probably because of tourists and other transients (in the legal, not pejorative sense).


10. What impact has that third judge had on your office, and why do you need two more staff because of the third judge?

Pretty simple. Our workload is determined by two ends of the giant justice/sausage machine: crimes committed and people arrested at one end; and, at the other end, the court appearances (not just trials but arraignments, probation violations, motions, and on and on) at which the DA is required to appear.

Going from two judges handling criminal cases to three is very basic: It is at least a 30 percent and as much as a 50 percent increase in required court appearances for our prosecutors. Determining and confirming this was the whole reason for the LGPI study, selected and commissioned by County Manager Scott Derickson.


11. How many days do you and your staff spend in court?


Every single weekday the courts are open. On rare occasions the judges may have a civil trial or a reduced docket but virtually all the lawyers are in one of the three courtrooms every day. Plus, we have Grand Jury twice a week, which is for all purposes a "fourth" courtroom.

It is an extremely rare day that I do not personally appear in court. I have personally tried three jury trials in the last eight weeks and I deliberately do the daily in-custody arraignments. It's a good management practice because it's a way of guaging what is being filed and making an intelligent release recommendation to the judge, particularly now that there is no Release Officer. I can't simply ask the court to keep everyone locked up. I have to keep my eye on the jail population and matrix, which I take with me every day to arraignments.


12. How many days are there attorneys from your office (you or your deputies) in all three courtrooms?

As I have told Commissioner Pat Roberts many times: Almost every day one or more of my deputies are in all three courtrooms at different times during the day. We generate daily dockets that verify this.


13. How many hours do you or your office spend on civil commitments in a year?

I agreed to start doing civil commitments -- which had been "piece worked" out to County Counsel, apparently on an hourly basis -- in exchange for the Commissioners not giving me too much grief when I went from four to five Deputy DAs. I think that was about eight or nine years ago. We do not keep track of the hours we spend on them. The $10,000 figure that I stated at a County Commission meeting a few months ago is what county management told me they were spending back in 1998 or whenever. I'm sure it would be much more now.

Civil commitments tend to come in bursts. I usually personally handle them only because it requires some specialized knowledge about "AMI law" (referring to an Alleged Mentally Ill person.) I'd guess we do about 25 a year and they take about two to four hours each just in courtroom time. We never know about them until 24 hours before court, so we have to crash prepare for them. The courts just jam them in anywhere they can on their busy dockets -- another reason I personally take them because my deputies are already over-committed to their own court appearances.

Keep in mind we do a number of things that other county departments used to do:

(a) We manage the Medical Examiner program, at the request of Dr. Joann Stefanelli who was unhappy being managed out of the Health Department, which did virtually nothing, provided her nothing and charged the county $6,000 a year for "administering" the program. We provide Joann a car, a desk, phone, mailbox and private office and we charge the county nothing.

(b) We handle forfeitures, which are usually tied to drug cases. This is when the county, usually the Sheriff, is trying to seize what is almost certainly drug money. Normally this is a civil matter. The number of forfeitures have declined but we provide legal advice and court appearances for free.

(c) We handle Writs of Habeas Corpus -- suits filed against the Sheriff by an inmate for any number of reasons. These are fairly complicated civil cases. They are not common but require very specialized legal knowledge. My Chief Deputy, Ron Brown, is very well-versed in the law and we handle the cases -- again, for nothing.

(d) We appear at Juvenile Dependency cases -- not Delinquency cases, which we also do but those are kid crimes. Many DA's, citing time and budget constraints, do not provide Deputy DAs for these hearings which are very complicated and drawn out. Judge Brownhill handles these cases and considers them a very high priority. The legislature considers them important as well and has authorized several million dollars so assistant attorney generals can make some of these appearances.

(e) We provide training for local police agencies, almost always outside office hours and on weekends. The lawyers (and I) who do this don't get time off or pay for this. We consider this an important obligation to keep the seven police agencies in Clatsop County up to date on the ever-changing criminal law.

(f) By state law the DA is the Public Records arbiter for any requests of agencies below state government. I have to render a legal decision when a citizen of the press demands documents and the governmental agency declines to turn them over. Not a lot, but maybe a dozen a year.


Now here are some questions from me:

1. How do you think the DA's office is performing? Are we bungling cases? Do the police agencies feel well-served by us? The Sheriff's Department? The Oregon State Police? What about other community partners like the Women's Resource Center, DHS, the Juvenile Department and CASA? Ask them.

2. What do exit interviews from staff leaving the DA's office show? Are there grievances or complaints?

3. Has the DA's office generated any lawsuits the county has had to defend?

4. Is the DA's office winning important cases?

5. Do citizens feel the DA's office is accessible to them and can they reach the DA when they need to?

6. Do victims feel as if they have been served?