Sunday, August 12, 2012

"Winning"

The August 10 story in the Daily Astorian ("Judge gives a DUII win to city of Astoria," by Chelsea Gorrow) is largely accurate.

The story was written based on an informal e-mail from Judge Norblad to the attorneys for the DA's office (the Attorney General) and the City (Blair Henningsgaard) which I had not seen until contacted by the paper because my attorney in the AG's office is currently on vacation.

For several reasons previously discussed regarding the conduct of the city of Astoria's Municipal Court process with DUIIs, I have asserted that the DA's office does not cede control of DUII cases to Municipal Court and therefore all DUII cases must be filed in Circuit Court. The City refused to accept the DA's control over such cases. The purpose of this year-long litigation was to confirm State law which asserted the DA's control of DUII prosecutions.

Judge Norblad's order of May 22, reaffirmed in the recent email, confirms the DA's authority over DUIIs as stated in Oregon law:
"It is this court’s opinion the district attorney controls and directs prosecutions of DUIIs in all the courts in his county, and in this case, the city of Astoria. This would include all DUIIs filed under state statute or city ordinance."
The informal email that is the subject of the latest Daily Astorian piece addresses what might happen should the City persist in attempting to prosecute DUIIs in Municipal Court. Would the DA's office be required, as the City requested, to appear in Municipal Court? Judge Norblad made a distinction between the words "appear", which in legal terms means a lawyer must actually be in the courtroom, and "attend", which means a lawyer need only file the appropriate paperwork, and ruled that the DA's office must "attend". In such cases the DA's office would file a motion to dismiss and refile the charges in Circuit Court.

The small number of DUII cases in Astoria can be prosecuted by the DA's office without the need for more money or staff. The Attorney General's legal work -- about $25,000 -- was paid out of the DA's 2011-12 existing office budget by squeezing savings in administrative costs.

The only thing the DAs office gets out of handling Astoria's DUII cases is the knowledge that the cases will be handled equitably, with all due diligence, by full-time professionals who wear only one hat -- as prosecutor, defense attorney or judge -- and are not prosecutor in the morning, defense attorney in the afternoon and judge on Mondays, none of whom are elected.

The District Attorney's office cannot ethically continue to allow DUIIs to be prosecuted without a court of record. Prosecutions don't even exist outside a court of record and thus eliminate the legal concept of double jeopardy. Defendants in Municipal Court would therefore be required to stand trial again in Circuit Court. Two prosecutions, two defenses, two juries and double the APD officer's court time. It makes no sense as justice for the People nor does it make sense financially, except to the private attorneys.

There is nothing official that can be acted upon until both parties sign off on the language and the judge signs his order.

When the order has been signed by Judge Norblad, either the AG's office or I will send a letter to the City reasserting the DA's authority over DUIIs and requesting they be filed in Circuit Court. Perhaps the City will be sensible and respect both the Judge's order and, as importantly, the taxpayers by simply doing so.



12 comments:

  1. Can you publish the specific Norblad email?

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  2. It appears from your statement that you intend to file motions to move any DUII cases filed into the Astoria Municipal Court to the Circuit Court. A couple of questions remain:
    How will you discover that a DUII case has been filed in the Municipal Court?
    If the Municipal Judge refuses to honor your motion, what happens (and, considering the idea of a timely prosecution, doesn't it have to happen pretty quickly, ie: no time for another law suit?)?
    How does this situation affect the other cases filed into the Municipal Court that you may wish to have transfered to Circuit Court?
    And, by the way, thanks for being so transparent in this situation. It is good for the public to know our elected officials plans.

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  3. There are additional legal options should the City continue to spend scarce resources to keep DUIIs in Muni Court. We'll cross that bridge if we get to it.

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  4. No, I can't publish the e-mail. It's not appropriate. There will be an actual order later this week. That will state the terms of Judge Norblad's decision most of which is pretty well been published, albeit in pieces.

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  5. Is is possible for us to get information about the effect of you taking all Astoria's criminal cases and your plans to deal with them? I understand Astoria produces about 3,000 criminal cases a year, some of which go to you, but most are low level and go to the municipal court. Will the increase cause you to need more staff?

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  6. It is vaer hard to know how many cases because the City refuses my requests to tell me how many criminal cases they make, if they even know. But even with me doing ALL the City Attorney's job, not charging the city (and apparently the city planning on paying the city attorney the same for much less work) the answer is NO, I do NOT expect to ask for any more staff.
    Astoria command officers told me they thought about 150 additional charges, the vast majority of which are so minor the city attorney has reduced them to infractions.

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  7. Josh wrote"The District Attorney's office cannot ethically continue to allow DUIIs to be prosecuted without a court of record. Prosecutions don't even exist outside a court of record and thus eliminate the legal concept of double jeopardy. Defendants in Municipal Court would therefore be required to stand trial again in Circuit Court. Two prosecutions, two defenses, two juries and double the APD officer's court time. It makes no sense as justice for the People nor does it make sense financially, except to the private attorneys."

    Why is DUII misdemeanor treated different from other misdemeanors that are filed in municipal court. How do you "ethically" allow them to stay in muni court?

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  8. Well, Josh, good luck. The Oregon Annual Uniform Crime Reports show in 2010 Astoria handled 2253 crimes (156 person, 803 property and 1225 behavorial). From APD data it shows most of the property and behavorial crimes that were prosecuted went to the municipal court. This work also produced 680 arrests, most of which went to the municipal court. I really don't see how you can take on what appears to be a much greater workload without more staff and still provide at least the current level of justice. But, is there a website where you report the work of your office in cases handled by type so we can see how things are going?

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  9. Drivers who are under the influence of alcohol and/or drugs can destroy lives. They can irrevocably change not just the lives of the innocent drivers and passengers who meet the impaired driver on the road, but also their families and friends. My office, along with every other compassionate, ethical district attorney's office and the judges with which they work, takes DUII cases very, very seriously. The latest response by the City is just one more in a continuing line of responses that make it distressingly clear why it was so very important that these cases be removed from a court system that makes determinations based on personalities and emotion, not law and ethics.

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  10. This comment has been removed by a blog administrator.

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  11. Anonymous: Of course we do, every year, as part of the county's budget process. The District Attorneys office cannot act Anonymously. You can find our latest performance measures at the end of the budget, here: http://co.clatsop.or.us/assets/dept_6/pdf/6.%20public%20safety%20&%20justice%2012-13.pdf

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