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.