Sunday, October 22, 2017

Speech to Parents of Murdered Children

Thank you for inviting me back for this solemn memorialization of this wall and the sad task of adding names to the wall of remembrance.

I need to say a word of remembrance for possibly the greatest pioneer of victims’ rights in this state - Dee Dee Kouns, who died last week at 89. Dee Dee and her late husband Bob never ceased fighting for murder victims -- their daughter and the all too many other victims represented on these walls and by those of you here today. I remember Dee Dee from the tough political days of the mid-1980s, when those who stood up for victims’ rights were accused of trying to undercut civil rights. Times have changed.

Since I last spoke to you we also lost Hardy Myers, long-time Attorney General and champion of victims’ rights. Bob and Dee Dee had a great deal to do with changing Hardy's view of the rights of victims, so thank you Dee Dee, for all your work.....for all those years.

Thanks to Clackamas County DA John Foote, who was Dee Dee’s good friend for many years, right up to her sudden death this week. John has been an outspoken leader in the prosecution community on behalf of victims’ rights. You here in Clackamas County are lucky to be represented by him, but I suspect you don't need me to tell you that......!

As I approach the end of my career in trying to hold accountable those who tear and attempt to destroy the lives of others, I am reminded of the advice I gave a newly hired Deputy District Attorney, something that happens less often as the profession of prosecution becomes much more of a career and a lifelong mission and less of a stop-over en route to seven-figure salaries and second homes.

That advice is never to say to a family member 'I KNOW WHAT YOU ARE GOING THROUGH.” Unless she or he has had the have horrible experience of losing a family member to murder, they cannot say "I KNOW WHAT YOU'RE GOING THROUGH."

Over the 32 years I have been prosecuting homicide cases I have come to form deep, long-lasting relationships with the family members of murder victims. I never cease to be amazed by their grace, their dignity, and most of all their incredible eloquence.

But sitting through trials with family members, explaining the decades-long appeals process, or attending the scene of a brutal murder when the smell of blood, like copper, never seems to leave, is NOT the same as what you and other family members have been through.

I detest the phrase "closure" and find myself snapping back at legislators or attorneys who use the expression too easily, implying that like an expiration date on a bottle of prescription medicine, the family can expect to have resolved all their feelings by some arbitrary date or juncture in the justice process. The criminal justice system can...sometimes....achieve a measure of FINALITY, but never "closure."

For over 20 years I prosecuted a brutal killer named Randy Guzek. The name Guzek matters little. The good people he gunned down in the summer of 1987 were Rod and Lois Houser. Like virtually all murder victims for whom it has been my honor to speak as the prosecutor of their killers, I never knew Rod or Lois in life. In the strange world of homicide investigation and prosecution I only came to know them through the stories, photos, and memories of their surviving family members...in their case their two adult daughters, their brother and nieces and nephews.

Guzek had already been tried and sentenced to death when I became Chief Deputy DA in Bend, in 1990. I was hired, in large part, to re-try Guzek after all of Oregon's death sentences were overturned in 1989. In 1991 I slowly gained the trust of the Houser family during the second trial, where a second jury gave a second sentence of death. I moved on in 1994 to the job I hold now, as DA of Clatsop County, in Astoria, but I made a promise to the Houser family that if they needed me, I'd come back.

It was sooner than I thought. In 1995 the case was overturned again. I moved back to Bend for a few months to prosecute Guzek for a third time. Again the jury sentenced Guzek to death and again the Houser family endured with dignity and gave the testimony that shone the little light the law allows on the lives (not the deaths) of Rod and Lois Houser. Doug Houser, Rod's brother and one of the most prominent lawyers in this part of the nation, had the jury - and me - in tears as he told how as kids he and his brother made a pact that whoever died last would take the ashes of the other to a remote but beautiful lake in the Willamette National forest -- Duffy Lake.

But the 1995 trial brought neither closure NOR finality. In 2005 the Guzek case went to the US Supreme Court, where our side won unanimously. That did not stop a FOURTH trial, held in 2010 - 22 years after the first trial. At that point about $3 million had been spent defending the murderer Randy Guzek. Many of the original witnesses and even some members of the Houser family had died, but Doug Houser and Sue Shirley, the victims' daughter, were there every day.

The fourth trial resulted in a fourth death penalty. Of course the case went to the Oregon Supreme Court, who finally have denied Guzek's direct appeal. This last February the United States Supreme Court denied cert - meaning they declined to review the conviction or sentence.

Of course most of you know that is NOT the end of the case. Guzek will now claim Post Conviction Relief, that one of his five teams of lawyers rendered so-called "inadequate assistance of counsel"
But last summer the family of Rod and Lois Houser asked me to hike with them the three miles off the trail head in the Cascades that leads to the silent but beautiful Duffy Lake, where Doug Houser said a few words in memory of Rod and Lois.

I recall another homicide prosecution of a driver who was drunk and high on drugs when he came around a corner on the Sunset Highway in Clatsop County and slammed into a van driven by a father whose wife and two children were in the car. As all too often happens, the drunk was essentially unhurt while the father and mother died instantly. One of the children died shortly after at the hospital in Portland. The sole survivor was the young son, Ben. I went to his relatives’ home outside Portland to discuss a possible resolution of the case with his guardians – his aunt and uncle, and to assess whether the boy could handle getting on the witness stand, if necessary. I’m not a father and I’m honestly not great with kids so I was trying to find a common point of reference with Ben. It turned out we both loved cats. He explained he couldn’t have a cat because his relatives were allergic, and his cat lived in the house where nobody lived any more. I had not really considered the enormity of his loss until that moment. I realized that before he was in 7th grade his entire family was stolen from him, violently and without cause.

Ben’s family did not particularly want to go through a trial, but I was able to secure a 15-year prison sentence under Measure 11. Most cases do resolve by plea, not trial, saving a family the anguish and uncertainty that comes with a trial. The sentencing was – nonetheless – very emotional. The victims played a memorial video in court and gave the defendant a fancy bible into which a family photo had been embossed. The Portland TV stations were all in court and afterwards they asked me if I was surprised by the Christian forgiveness the family expressed for the man who killed three members of their family. I replied that I was moved by their willingness to forgive, and I didn’t think I would be so generous. Buta criminal trial isn’t about forgiveness, it’s about accountability. To quote the Bible at MATTHEW 22:21 “Render unto Caesar the things that are Caesar's, and unto God the things that are God's".

The drunk driver received their forgiveness, in the personal and spiritual sense, but it is not the State of Oregon’s place to grant forgiveness.

I come from a family who have been pursued by governments meaning to do ill to my ancestors. My mother’s grandfather was a Mormon polygamist chased into the wilderness of southern Utah by the US Army during the “Mormon Wars” of 1858. More recently my father and his entire family fled Nazi Germany in the 1930s to avoid persecution and death for being ethnically Jewish.

Today is part of what an observant Jew (I am not a religious person of any denomination) would call the “DAYS OF AWE” –5 days after Rosh Shonna, Jewish New Year and 4 days before YOM KIPPUR, the “Day of Atonement.” In that faith God keeps “books” on a person’s life and the ledger can be altered by particular acts of atonement during these “days of awe.” Events like these always remind me of a tale recounted by Canadian writer Anne Michaels in her book FUGITIVE PIECES. She tells the parable of a rabbi, renowned for his wisdom and great knowledge, who is invited to travel to a nearby, wealthier congregation to speak. For reasons known only to the Rabbi, he dresses as a poor peasant on the train journey and is treated poorly by some of the passengers, who turn out to be members of the congregation that invited him.

After the rabbi’s speech , members of the congregation come to him and ask his forgiveness for their thoughtlessness and poor behavior. He smiles sadly and tells them he cannot. As the Day of Atonement approaches they re-engage the rabbi and ask him how, he – a holy man – can deny them forgiveness on of all day this Day of Days, YOM KIPPUR.

He shakes his head and tells them the only person who can forgive them is the man on the train, and he no longer exists.

As Anne Michaels writes: “Nothing erases the immoral act. Not forgiveness. Not confession. And even if the act could be forgiven, no one could bear forgiveness on behalf of the dead. No act of violence is ever resolved.”

But if you can find it in your heart to forgive, I applaud you. That is your choice, morally and spiritually. Sometimes it can be a healing act, not just for them but for you. But don’t let anyone or any institution bully you into thinking you are required to give that forgiveness. It is yours to give or with-hold. In a society that increasingly finds ways NOT to hold people accountable for their thoughtless, even cruel acts, you have the freedom and right to give or with-hold.

It has been my honor to work for over 35 years as someone who helps support victims, demand accountability on their specific behalf in court, and in the community in policy discussions. Join me today in remembering all those whose names were added to the wall, the names already there and those who just left us, like Dee Dee Kouns.
####

Joshua Marquis
Clatsop County District Attorney

Monday, October 2, 2017

History Matters

In 1934, Oregonians passed Measure 302 which made several changes to felony trials : (1) It allowed a defendant to not have a jury trial; (2) It allowed a jury in most (but not all) felony trials to render a verdict of either guilty or not guilty with the concurrence of only 10 out of 12 jurors; and (3) a unanimous verdict remained a requirement for conviction, but a not guilty verdict could be reached with the concurrence of only 10 of 12 jurors.

In the last year, some "activists" have spread the claim that 1934's Measure 302 was a "racist and unfair" law mainly because Louisiana had similar laws. But Louisiana's law differed in an important way: Guilty verdicts for Murder are allowed on jury's 10-2 vote.

Several lazy journalists have simply been taking dictation from the activists. They've written articles claiming that the US Supreme Court (SCOTUS) was set in this year's session to hear a case from Louisiana that would "change Oregon law." Except it would not have, because the case was about a man who had been convicted of murder on a 10-2 verdict which, as noted above, is not and never has been allowed in Oregon.

SCOTUS validated Oregon's Measure 302 most recently in 1972, and many times since has declined to consider cases challenging the 10-2 not guilty verdicts. Including today. The Supremes did not include the Louisiana case on its list for their new term beginning today.

What follows is my response to an article published in the University of Oregon Law Review, which simply shrugged off my many criticisms about the author's historical deceptions about Oregon in the 1930s.



History Matters: A Response to Prof. Aliza Kaplan
Joshua Marquis
November 27, 2016

In an article prepared for the Oregon Law Review, Professor Aliza Kaplan paints a picture of Oregon, from its beginnings to the later years of the 20th century, as a cesspool of racism and bigotry, a society and government of the 1920s and 1930s dominated by a powerful Ku Klux Klan, anti-immigrant, overwhelmingly white, Protestant, and religiously bigoted, Thus Professor Kaplan sets the stage for another in a long line of heretofore unsuccessful attacks on non-unanimous jury verdicts in Oregon criminal cases.
            Also being used to provide some academic veneer for a motion in a pending case of Prof. Kaplan’s, the article repeats cliches about how non-unanimous verdicts deny critical due process rights to defendants and are particularly susceptible to unfairly targeting racial and ethnic minorities. Conveniently enough, Louisiana is the only other state to allow non-unanimous verdicts, and so Prof. Kaplan smears Oregon prosecutions with the chronicle of racism and injustices in Louisiana’s genuinely dark history.
            In 1972, in Apodaca vs. Oregon, the US Supreme Court affirmed the right of the states to allow non-unanimous verdicts. Oregon’s rule was the result of a process of progressive reform over a couple of decades, leading to its adoption by popular initiative in 1934. But this history eludes any comment by Prof. Kaplan. Then again, the professor chooses throughout her article not to cite the findings of the majority of the court, instead choosing to cite those dissenters who agree with her position, along with a highly dubious series of inside websites run by the same Criminal Defense Bar of which Ms. Kaplan is such an outspoken member. (In a serious law review article that would be like me quoting other articles I had written as proof of an underlying fact in a footnote.)
            Professor Kaplan's obvious lack of knowledge about the history of Oregon populism and progressive reform at the beginning of the 20th century can only be the result either of poor scholarship or of an attempt to deliberately mislead the reader. This gets even worse as the article progresses, where Kaplan grossly misstates a number of voter-driven criminal justice reforms, once again citing her own organization, the Oregon Innocence Project, as the authoritative source.
            Prof. Kaplan recounts a little-known case involving Jacob Silverman, a Portland man who was charged in April of 1933 with first-degree murder for the deaths of a man and a woman. One “hold-out” kept the jurors from unanimously agreeing on either first-degree or second-degree murder, so the jurors agreed on the lesser charge of Manslaughter, for which Silverman received a three-year prison sentence.
            Prof. Kaplan then claims that a vile, anti-Semitic mob, also known as the Oregon electorate, was so outraged that the one "hold out juror unwittingly became the poster child for Oregon Ballot No. 302-03.”
            Much is missing in Prof. Kaplan’s argument. The measure, which passed on a 58-42% margin, allowed Oregon criminal jurors either to convict or to acquit on a 10-2 vote, in all but murder cases. It cannot be much of a leap to assume Prof. Kaplan would be okay with a 10-2 verdict of acquittal.
            Missing also is the most obvious fact: Silverman’s case would have resulted in the same verdict of manslaughter whether he had been tried before or after Measure 302-03.  At the time of Silverman’s trial, all criminal verdicts required a unanimous vote to convict. The manslaughter conviction was clearly a compromise to which the one hold-out juror was willing to agree.
            The irony is that Kaplan is claiming that the racist and anti-Semitic mob mentality of 1933 Oregon was so outraged that the verdict in the Silverman case lit the spark that gave rise to Measure 302-03.  Ballot measure 302-03 specifically excluded murder, which, as it does to this day, requires a unanimous vote by the jury to convict.
            And what’s more, the measure also expanded criminal defendants’ rights by allowing trial by judge -- avoiding “the mob” of a jury -- with the judge’s consent.
            As bad as the legal "scholarship" is here, what is worse is either the deliberate ignorance or the deliberate omission of the facts of political life in Oregon in the first third of the 20th century. That racism existed in Oregon in 1910, 1938, 1985, 2017 is undeniable. The question is whether it was as pervasive and perverting as Kaplan claims.
            Readers might be interested to learn that the Governor of Oregon during the relevant time period, 1931-1935, was the only person ever to be elected as an Independent: Julius Meier, a Jewish man whose family, along with that of the Frank family, founded the iconic Meier & Frank department stores. (Frank's descendant, Gerry Frank, continues to write about Oregon life and politics in the Oregonian and other venues.)
            Like many Oregon politicians of the early 20th century, including earlier Governor Oswald West (1911-15), Meier was considered to be a progressive and a reformer. Meier organized the Oregon State Police, drawing on the advice of noted Marine General, two-time Medal of Honor winner turned political radical Smedley Darlington Butler, turning it from a rag-time bunch of game wardens into the statewide professional organization it remains almost 100 years later. Meier also advocated for removing partisan politics from the judicial system
            There’s no question that there was a political resurgence of the Ku Klux Klan in the 1920s across northern states, lasting essentially until the Great Depression. The Klan had advocated boycotting the Meier & Frank stores, and the Oregonian could be a vile newspaper, stirring up racist and anti-Semitic passions; in fact, the editors opposed Meier’s election.
            But if Oregon was such a viciously anti-Semitic place as Kaplan asserts, how on earth did a reformer like Meier get elected?
            And Meier was not an outlier. His predecessor as Governor was Albin Norblad. Sr., of Astoria, Oregon, considered “too progressive” by his fellow Republicans. Norblad formed a Pardons Board and personally interviewed inmates seeking relief.  Norblad was preceded by Gov. I.J. “Ike” Patterson, who directed the state prison system to house adult and juvenile criminals separately.
            In fact, a discussion of the “Progressive” era of American politics must include William U’Ren, a now little-known reformer who served a single term in 1898 as a state representative from Clackamas County. U’Ren invented the direct referendum, the recall, and the direct popular election of U.S. Senators.
            This minutiae may seem irrelevant to Prof. Kaplan, intent on creating a very different Oregon, perhaps cut from the same cloth as D. W. Griffith’s notorious 1915 silent movie Birth of a Nation, which glorified the KKK and slavery, and was originally titled after its source book, The Clansman.
            Context and history matter, so when Kaplan starts speculating about a spate of voter-driven reforms that were passed by voters in the 1980s and 1990s, she mischaracterizes most of those changes as well.
            Kaplan runs the Oregon Innocence Project – the second of such projects after the initial 2005 iteration at the University of Oregon Law School failed -- not for lack of volunteers, willing professors, or earnest law students. It failed because it lacked a critical ingredient: innocent convicts. When the group’s determined effort failed to turn up even one “innocent” over the course of a few years, the group quietly shuttered. The new effort is better funded, and is advertised by advocacy groups as trying to roll back the very “truth in sentencing” and victims’ rights enacted by Oregonians, measures that Kaplan thinks of as mob rule. Some call it democracy.
            As Kaplan describes the very small number of cases in the United States in which DNA advances have freed people who truly did not commit the crime (14 men from death row, 9 of whom had already been released off death row or out of prison entirely; about 340 overall for all crimes), she fails to mention the history of DNA in Oregon and elsewhere. It was prosecutors who fought, courtroom by courtroom through this nation, to get this new and remarkable technology accepted -- over the fevered objection of defense lawyers. In Oregon, a Clatsop County murder case, State vs. Futch , 324 Or. 297 (1996) finally established that DNA evidence met the state’s Daubert-like “Brown/O’Key” scientific standard for admissibility.
            Prof. Kaplan makes short work of a series of voter-passed and Oregon Supreme Court-approved criminal reform measures. She refers to Measure 11 as ”restricting the legislature’s ability to reduce voter approved sentences.” But Measure 11, which requires sentences ranging from 70 to 300 months, depending on the crime, has had the net effect of reducing racial disparities in sentencing by prohibiting judges from considering whether a defendant is from a “good family.” And in 2000, an attempt to repeal Measure 11 was rejected by a 3 to 1 margin, dwarfing the original passage rate of merely 2 to 1.
            Kaplan entirely brushes off  Measure 69, which ensconced voter-passed statutory victims’ rights into the Oregon Constitution as Article 1, Section 43.  She refers to Measure 71, which requires judges to consider both a defendant’s likelihood of appearing in court and the risk they pose to the community as “limiting a judge’s discretion in pretrial release decisions.”
            Perhaps most egregiously, she refers to Measure 57, a complicated sentencing measure jointly sponsored by the state’s Democratic legislative leadership and the state’s district attorneys to head off a mandatory minimum measure as a law that “appeared to be disguised as an anti-drug trafficking bill, [but] established mandatory minimum sentences for repeat property, identity, and mail theft offenders.”
            Kaplan is either being lazy or deceptive, or both. Measure 57 did not impose a single new mandatory minimum sentence, save one the Democratic leadership insisted on including involving the delivery of huge amounts of methamphetamine, designed to make the measure look “tougher” than a competing measure offered by Kevin Mannix, a former legislator who had authored many crime laws and sought to be seen as “tougher on crime” than others.
            In conclusion, Kaplan deliberately leaves out one important fact: Oregon is likely the only jurisdiction in the nation allowing a not guilty verdict to be reached by only 10 of 12 jurors. The effect of Measure 302-03, passed in 1934, has not increased guilty verdicts. It has simply reduced the number of hung juries.
            As the saying goes “god and the devil are in the details.” 
            So is the truth.




Friday, August 18, 2017

Butane hash oil explosion sentencing

If this had happened in a basement downtown, we could have had a fire of 1922 proportions. The point is...WHERE THE HELL IS THE REGULATION?
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Two sentenced in Astoria butane hash oil blast
By Noelle Crombie ncrombie@oregonian.com
The Oregonian/OregonLive
Updated on August 18, 2017 at 12:32 PM Posted on August 18, 2017 at 11:21 AM

Two men were sentenced Friday to three years of probation for their roles in a butane explosion last fall in Astoria that injured two people.

William "Chris" West, 41, and Jason Oei, 45, entered Alford pleas in Clatsop County Circuit Court to third-degree assault, a felony, and reckless endangerment, a misdemeanor. Under such pleas, a defendant doesn't admit guilt, but acknowledges prosecutors have enough evidence for a conviction.

West and Oei were making butane hash oil for their business, Higher Level Concentrates, when the space filled with the flammable gas and exploded. At the time, the company was on a state-approved list to process marijuana for the medical market.

A construction worker, Jacob Magley, 34, was working in the building when the blast occurred. He spent a month in a Portland burn unit recovering from his injuries.

Magley is suing 11 businesses and three people for violations of workplace safety laws. He filed the suit in Multnomah County and is seeking $8.9 million in damages.

Magley listened in to Friday's court proceedings by phone and declined to give a statement.

Clatsop County District Attorney Josh Marquis said the case represents the first felony conviction tied to a legal cannabis extraction business.

But Marquis, who opposed Oregon's marijuana legalization efforts, said the case isn't about cannabis.

"This is really not a drug case; this is a case about recklessness and an industrial accident," he said after the sentencing.

Attorneys for the men didn't immediately respond to requests for comment.

Higher Level Concentrates operated during a transitional period for Oregon's marijuana program when the health authority oversaw cannabis processors. The business wasn't inspected by regulators. Those businesses have mostly transitioned to the Oregon Liquor Control Commission, which has stringent fire and safety requirements in place for those businesses.

Marquis said the two had what's known as a closed loop extraction system designed to keep butane from escaping into a room, but they abandoned it because it "had sort of fallen apart on them."

Instead, he said, they used a more primitive and dangerous approach called "open blasting," which allows the gas to fill a room.

He said investigators found hundreds of butane canisters, all of which were "crudely punctured," despite labels warning not to tamper with the containers, Marquis said.

They started pouring the butane into the system "and literally throwing (the cans) into the corner," Marquis said.

It doesn't take much to ignite a butane blast. Something as mundane as a light switch can set off the odorless gas.

The business was fined $5,300 for a series of workplace safety violations related to the explosion. Oregon OSHA cited it for failing to ventilate the building, failing to have an adequate electrical system and failing to obtain city permits.

-- Noelle Crombie
ncrombie@oregonian.com
503-276-7184; @noellecrombie

Read the piece on the OregonLive website.

Wednesday, August 16, 2017

Oregon makes drug possession a misdemeanor

 
By Andrew Selsky
Associated Press
Published on August 15, 2017 5:21PM
“The message it sends is this is just not that big a deal,” Marquis said. 
The district attorney called heroin and meth “scourges” in Clatsop County and communities across the nation. “They’re not just a minor problem. They’re a huge problem,” he said. 
Marquis said felony drug possession charges often acted as leverage to steer drug abusers into treatment and drug court. “We know that people don’t seek treatment until they either bottom out or they have no choice,” he said. “By making it a felony, it does threaten people with some consequences.”
SALEM — A bill signed by Gov. Kate Brown on Tuesday makes personal-use possession of cocaine, heroin, methamphetamine and other drugs a misdemeanor, not a felony.
Oregon joined just a handful of other states in defelonizing drugs under the new law, which was supported by some law enforcement groups and takes effect immediately.
Clatsop County District Attorney Josh Marquis, who spoke out against the idea at the state Legislature, said possession of the dangerous drugs is now as serious as shoplifting or minor vandalism.
“The message it sends is this is just not that big a deal,” Marquis said.
The district attorney called heroin and meth “scourges” in Clatsop County and communities across the nation. “They’re not just a minor problem. They’re a huge problem,” he said.
Marquis said felony drug possession charges often acted as leverage to steer drug abusers into treatment and drug court. “We know that people don’t seek treatment until they either bottom out or they have no choice,” he said. “By making it a felony, it does threaten people with some consequences.”
Jo Meza, owner of Amazing Treatment, a rehab center in Salem, applauded the new law. She has seen the damage caused by drug addiction in her 30 years in the field.
“There’s a huge crisis out there, and locking people up is not going to work,” Meza said.
Looking to kick their addictions, patients ascended a flight of stairs into Amazing Treatment, located above a Mexican restaurant and a barber shop in downtown Salem.
Inside the center, someone had drawn a syringe on a whiteboard with the words “No more.” Above that was a quote by philosopher Friedrich Nietzsche: “Many are stubborn in pursuit of the path they have chosen, few in pursuit of the goal.”
Meza said imprisoning first-time offenders with limited or non-existent treatment opportunities is not a solution. But the goal can be achieved with treatment for six months to a year with support from recovering addicts and training in how to remove oneself from the environment that led to the drug abuse, like a circle of addicted friends or relatives, she said.
“Jailing is not helping the problem,” Meza said. “All you’re doing is putting a Band-Aid on it and ripping it off when they get out of jail.”
Among the law’s supporters were the Oregon Association Chiefs of Police and the Oregon State Sheriffs’ Association, which said felony convictions include unintended consequences, including barriers to housing and employment. But the two groups, in a letter to a state senator who backed the bill, said the new law “will only produce positive results if additional drug treatment resources accompany this change in policy.”
“Reducing penalties without aggressively addressing underlying addiction is unlikely to help those who need it most,” the groups warned. Another measure appropriated $7 million that can be used to pay for drug treatment.
Linn County District Attorney Doug Marteeny had tried to convince lawmakers to dump the defelonization of dangerous drugs from the legislation, which also targets police profiling.
“To change the classification of this behavior from a felony to a misdemeanor is tantamount to telling our schoolchildren that tomorrow it will be less dangerous to use methamphetamine than it is today,” he wrote.
Those who have a prior a felony conviction won’t be afforded misdemeanor consideration, nor will people who have two or more prior drug convictions or possess more than user amounts.
The new law also directs a state commission to develop methods for recording data concerning police-initiated pedestrian and traffic stops. The measure is aimed at ensuring police aren’t stopping people based on racial or other profiling.
Marquis described the legislation as a “wolf dressed up in lamb’s clothing” because the drug provisions were tacked on to the profiling language, which had broader support.
The Daily Astorian contributed to this report.
Read the article on the Daily Astorian website.

Monday, June 19, 2017

Recording Oregon's grand juries is wrong

The bill that would require recording all grand jury testimony is about to pass, will likely add about $150,000 to Clatsop County costs and will have a particularly chilling effect on the testimony of domestic violence and child sexual abuse victims...




Recording Oregon's grand juries is wrong
By Guest Columnist
By Joshua Marquis
Posted on June 18, 2017 at 7:00 AM

Clatsop County District Attorney Josh Marquis argues that recording grand juries will have a chilling effect on justice.  

Spencer Weiner/AP
When it comes to public safety, Oregon has long led the way on progressive policies: Allowing small amounts of marijuana in 1973. Creating some of the nation's first drug courts in 1991. Providing citizen involvement in grand juries, where criminals are charged. Now criminal defense attorneys and a phalanx of well-financed lobbyists who oppose victims' rights are pushing to record grand jury proceedings and make these secret proceedings public.

Their clarion call is "transparency," a new buzzword that, ironically in this case, obfuscates the truth. The fact is that defense attorneys want a new tool to badger and intimidate witnesses, prolong litigation and tie up courts with procedural challenges.

Rather than being honest with the public and the legislature, they enlist surrogates like Irene Kalonji whose commentary "Police killed my son and I deserve to know the truth," was published in The Oregonian's Opinion section on June 6. Kalonji wrote that 19-year old son barricaded himself in a room with a rifle in 2016 and "told emergency responders that he was going to die, threatened to shoot children, and said he believed someone had been sent to torture and kill him." After hours of negotiations with law enforcement and mental health professionals, the standoff tragically ended with his death.

Though not required, the district attorney presented the case to seven grand jurors. Again per Kalonji's commentary, the grand jury concluded that a young man who everyone agreed suffered significant mental health issues "committed suicide by police."

The outcomes Ms. Kalonji seeks are simply not relevant to the debate over recording grand jury proceedings. The legal purpose of an Oregon grand jury is not to bring closure for victims, witnesses or family members of the accused. The grand jury is a reality check for prosecutors, who have been known to "fall in love" with a case only to be told by citizen grand jurors it lacks legal merit. A main reason grand jury proceedings are "secret" is to protect the reputations of those who are accused, but not indicted.

Further, recording grand juries will have a chilling effect on justice. What domestic violence victim will be willing to share her story when she knows that a recording of her statement could be handed over to the man who beat her or her children just days earlier? Even the most optimistic among us know how tragically that could end.

For decades, grand juries have operated inexpensively and efficiently. Adopting recording that would achieve the current judicial standard could exceed $10 million. Recording equipment would be required in every county, expert clerks would be required to operate and service the equipment, and the thousands of hours of recordings would need to be stored for years.

Assuming the legislature adopts this dangerous, misguided policy, most district attorneys, including myself, are likely to reserve grand juries for unusual cases. Instead, we will conduct preliminary hearings, the way California, Idaho and more than 20 other states have to bring cases to trial.

Preliminary hearings offer the most transparency, yet take much more time and could cost the state as much as $10 million annually for a process, which currently isn't required.

Why "fix" a system that isn't broken? In 1994, I was appointed by Gov. Barbara Roberts after my predecessor lied to the Clatsop County grand jury to falsely charge two police officers for crimes they never committed. Her secret indictment and subsequent conviction reassured citizens that the grand jury system works.

There is no chance that recording grand juries will prevent the next violent interaction between a troubled teenager and law enforcement. Rather, it could mean the mental health services Christopher Kalonji desperately needed will be even further out of reach for others. Instead of sinking millions into a solution for which there is no problem, how about the legislature invest the millions on desperately needed mental health services? We might then have a chance to prevent the next tragedy, instead of just recording its aftermath.

Joshua Marquis is in his seventh term as the Clatsop County District Attorney. He also served as president of the Oregon District Attorneys Association in 2001, as well as vice president of the National District Attorneys Association.

Read the column and its comments on the Oregonian's website.

Don't surrender to heroin and meth addiction

The ACLU and it supporters dominated the Wednesday, June 14 hearing on HB 2355-A, chaired by Sen. Jackie Winters. Despite driving 280 miles round-trip and signed up as the only opponent willing to testify, I was not permitted to testify until over an hour into a 90-minute hearing -- and then was reminded the committee's time was too short for me to explain.

This part of an otherwise not controversial racial profiling bill would reduce virtually all heroin and meth cases to misdemeanors. The "harsh penalties" in Oregon are possible jail sentences of up to 10 days, rarely actually served, for the fourth or fifth PCS Heroin conviction.

Most disturbing, and unmentioned in this story, is the almost certainty that by removing felonies as the coercive lever that drives most addicts into drug court, drug court will simply cease to exist.
Supporters of the bill were candid in their belief that law enforcement has no real role at all in limiting open heroin or meth use and addiction.

I'm not prepared to abandon all those humans just yet....

Bill in Oregon Legislature would reclassify some felony drug crimes as misdemeanors

A bill being considered in the Oregon Legislature would change the way small-scale drug crimes are treated in Oregon.

HB 2355 is aimed at reducing unjust profiling in Oregon. However, the part of the bill that deals with drug crime classification has drawn most of the controversy.

"This bill runs up the white flag," said Joshua Marquis, district attorney for Clatsop County. "It surrenders to heroin and meth addiction. The message we're sending, not only to criminals but the community, by de-felonizing these drugs is, 'it's just that big of a deal.'"

Marquis says a felony drug crime, simply by the nature of its severity, acts as a deterrent to future drug use.

"We're talking about providing the incentives, frankly the coercive tools to force people who are in addiction into treatment," said Marquis.

The ACLU of Oregon fired back at that assumption.

"The idea that there isn’t still some penalty associated with not going through your treatment and not actually doing the things you’re supposed to do when you get this misdemeanor, that’s just absolutely false," said Kimberly McCollough, policy director for the ACLU of Oregon. "The war on drugs has failed. We need to start treating drug use and addiction as a public health issue."

The debate over drug crime classification has overshadowed the main goal of the bill -- reducing profiling in Oregon. The bill would require law enforcement agencies collect data on the age, race, ethnicity, and sex of a person contacted during a traffic or pedestrian stop. That data would then be reviewed by 2020 and it would be used to develop strategies for reducing profiling. Drug crime classification became part of the bill during task force discussions.

"The drug war is inextricably tied up in and intertwined with the issue of profiling," said McCollough. "In order to find out who's using drugs or who possesses drugs there's a real incentive to try to search folks. What we found is that profiling is often amplified, that disparities are often amplified in those discretionary decisions to search someone."

The bill is still in committee but proponents are optimistic about its eventual passage.




 


Thursday, March 30, 2017

Public safety, not percentages

 





Guest column: Public safety, not percentages 

We evaluate each case person by person

By Joshua Marquis
Special to The Daily Astorian
Published on March 30, 2017 12:01AM


In journalism, research and trial law, you learn that the questions asked are as important, sometimes more so, than the answers. Recent articles in The Daily Astorian have discussed a state program called “justice reinvestment” without asking some pertinent questions.

One might assume from some of the glossy graphs from Salem that Clatsop County is sending a stunningly high percentage of people to prison.

A deeper dive shows otherwise. On a statewide average, 24% of felons were sent to prison last year following conviction. In Clatsop County, that rate was 21%. Nineteen Oregon counties send felons to prison following conviction at a higher rate than does Clatsop County.

Where Clatsop County’s prosecutors and judges are tougher is in a smaller set of cases known as downward departures. In these cases my office will recommend giving the offender a second (and often third, fourth or fifth) chance by agreeing to probation — if the offender will agree to serve a set number of months in prison (generally less than 24) should a judge determine their probation is not properly fulfilled.

Clatsop County sends 14% of its felons to prison in this manner, a rate still lower than four other counties, including the most populous, Multnomah.

Judges are the only ones who can send people to prison and are only mandated to send felons to prison for first-degree Measure 11 crimes such as murder, manslaughter, sexual abuse in the first degree, or rape in the first degree. In 2008, prosecutors and Portland-area legislators formed an unusual alliance to pass a more sensible measure to beat out Measure 61, which would have also mandated prison terms for many first-time burglars and car thieves. Measure 57 was supported by almost all of the state’s elected district attorney’s, including myself.

The Legislature’s response? They suspended Measure 57 at their next regular session, claiming it would cost too many prison beds. Then in 2013, they hammered out the justice reinvestment plan, again rolling back portions of the measure. (Several legislators, like our own state Sen. Betsy Johnson, did not support crossing the voters.) In theory, money that would not be spent on state prison beds for second-time home burglars or four-time identity thieves, would be diverted to the counties for local programs.

But justice reinvestment creates a negative bounty, essentially paying parts of the justice system to not send repeat property offenders and drug dealers to prison.

Clatsop County felons often chalk up four or five violations before a judge says “enough” and revokes their probation. Many felons struggle with addiction issues. Efforts are made through Drug Court and Mental Health Court, in which my office participates, to assist these people, allowing them multiple fails.

Importantly, Salem is famous for pushing unfunded mandates on local governments. The justice reinvestment dollars are likely to expire or simply dry up in a couple of years.

Only a judge can decide to send a felon to prison. We are fortunate that our three Circuit Court judges make good decisions.

So, when looking at the data proffered by Salem, consider these questions:

• How robust are the local Sheriff’s Office, Oregon State Police, and local agencies? In Clatsop County, they all do excellent work. But the more felons they catch, the more will be prosecuted. And, by the way, the fewer honest citizens will become victims of crime.

• Is there a local jail with available beds that could take some felons who might otherwise be sent to the state prison? Not in Clatsop County.

• Does the county have a significant tourist trade, or what we legally call “transient population?” The Daily Astorian reported recently that 42% of driving under the influence of intoxicants defendants did not live in Clatsop County.

My office carefully evaluates each case — not based on what the data will show at the end of the year, and hoping to “come up with good numbers.” We evaluate each case person by person, considering both the defendant and the victims, and the resources available, and make decisions based on public safety.

read the OpEd on the Daily Astorian's website

Wednesday, February 22, 2017

Some never make it


Special to The Daily Astorian
Published on February 21, 2017 12:01AM

We have been too eager to declare victory in a war on drugs that never really started.

A recent editorial in The Daily Astorian correctly pointed to the dismal state of Oregon’s response to deaths directly caused by illegal drugs.

Another article chronicled the sad journey of Dave and Kerry Strickland, who lost their son, Jordan, to heroin and have had the courage to speak about a battle that touches so many families.

Not coincidentally, another article documented the rigors of getting a new police officer on the road at the Astoria Police Department.

While there has been some progress, together the three articles outline the imperative need for local governments to even more effectively and aggressively address drug abuse and illegal drugs.

Over-prescription of some drugs has been dramatically reduced. Pseudoephedrine was a common off-the-shelf cold medicine that was also crucial to the manufacture of methamphetamine — perhaps the worst of all the drugs. Its catastrophic health consequences include near-immediate addiction and psychotic behavior. Meth cooks bought larges batches of the drug from local stores, until Oregon passed legislation making a doctor’s prescription necessary for purchase. The “Beavis and Butthead labs,” as law enforcement called them, declined to almost zero.

We assumed that meant meth was gone. But that wasn’t so. Meth now comes into the United States in 55-gallon drums from international cartels.

The opiate that is killing people now is heroin. Heroin used to cost about $20 a dose and was far less potent. Today it is sometimes laced with illegally-imported quantities of the super-potent fentanyl, another opiate which has, when medically administered, brought tremendous relief to many (including my own mother) who suffer from severe chronic pain. “Recreational use” is the most ironic of terms for fentanyl-laced heroin, which now sells from $3 to $5 a dose and could be potent enough to kill the first time.

And so, another geopolitical aspect to our drug problems.

Many people addicted to drugs don’t end up in the court system. Some people never make it past the emergency room. Clatsop County is exceedingly fortunate to have Dr. Joann Giuliani to serve as our county’s medical examiner, not only being on call literally 24/7, but also working with police and the community when tragedies like opiate overdoses take someone’s life. Often, she answers the difficult questions families often have about how their child died.

A solid drug policy would address and provide: low-cost and long-term mental health and drug treatment; a law enforcement team dedicated to drug enforcement; and a practical, viable drug court backed up by the potential of real sanctions and real rewards. All three elements need reinforcement.
Clatsop Behavioral Healthcare has made real progress. Still, mental health treatment is scarce, and Clatsop County has no detox or secure mental health beds. In-patient drug treatment is operated entirely by private providers and remains out of reach for most without better-than-average insurance.

The path to sobriety is not easy, which is why we do not seek revocation of the second chances we extend on most drug possession cases the first few times they admit relapsing. But the threat of even a few days in jail may prompt someone to stay sober, to attend treatment, and to make it to the next stage in recovery. The people who complete drug court graduate with their case entirely dismissed.

After having founded Clatsop County’s Drug Court, Judge Philip Nelson has retired, turning drug court over to our newest judge, Dawn McIntosh. Because of sentencing guidelines, which judges are required to follow, it is literally impossible for someone to face prison for drug possession, no matter how bad their record or how many prior similar convictions they have racked up.

Not that most drug addicts belong in prison. Oregon has one of the lowest rates of imprisoning drug felons, at less than 10% of the state prison population. There is even a badly-conceived effort in this legislative session to reduce all possession cases from felonies to misdemeanors, further minimizing the actual harm done to users, their family, and the community. If the possibility of “earning away” a possible felony conviction, even without the threat of prison, is further eroded, then we can expect drug court applicants to dry to next to zero, as they have in California and other states that took this ill-advised step.

With heroin and meth being bigger business than ever, there is no reason, and no sense, in not addressing both the supply and demand sides of the drug problem.

The Clatsop County Drug Team allows police to focus on higher-level dealers, cutting off the supply much more effectively. It would have vanished long ago but for the determination of Sheriff Tom Bergin, who once ran the team as a detective. In its best years there were detectives from Astoria, Seaside, the Sheriff’s Office, and even the Oregon State Police. Draconian budget cuts have worn down the State Police for years and took away OSP’s detective. The years that Astoria Police participated were among the most productive. The City of Astoria should dedicate an officer to the drug team, in addition to its current needs.

We owe it to Dave, Kerry and Jordan Strickland, and the many others who have suffered under what The Daily Astorian called “this blight,” to do these basic steps to make Clatsop County a better place.

Here is the OpEd on the Daily Astorian's website.