Sunday, October 17, 2004

A Truth-Based Justice System?

by Joshua Marquis
printed in USA Today, October 17, 2004

"Don't ignore larger issue"
It is every prosecutor's worst nightmare to convict an innocent person. Yet true "exonerations" are extremely rare events. The term "exonerated" should be reserved for those few people who are literally innocent. They didn't do it, they weren't there, and they didn't hold the victim down while someone else stabbed him.

A recent study claimed that there were fewer than 400 "exonerations" during the past 15 years, although some of those were cases in which the system simply gave up prosecuting — a far cry from actual innocence. More important, those several hundred cases came out of a universe of millions of arrests, meaning the problem of wrongful conviction is more episodic than epidemic.

No one wins when an innocent person is convicted. There should be a mechanism for compensating people who were innocent yet imprisoned. But America's prosecutors spend their professional lives trying to make sure that does not happen.

It was prosecutors who pioneered the use of DNA in courtrooms, usually over the fevered objections of criminal defense lawyers. Now many of those same lawyers herald the use of DNA, but only if it clears their clients.

A far-reaching DNA bill that Congress recently passed promises hundreds of millions of dollars to provide DNA testing. Much of this legislation is badly needed, not just to exonerate the handful of people who did not commit the crimes of which they were accused, but, more important, to solve the hundreds of thousands of rape cases in which untested DNA sits on police-evidence shelves across the USA.

Yet that same law forbids the inclusion into the national data bank of DNA information swabbed from the mouth of a suspect unless the person was convicted. That makes as much sense as refusing to enter fingerprints into the national automated fingerprint system. While we read about the few exonerated by DNA, "cold case" convictions from DNA tests — some from people who were never convicted — have become so common that they no longer constitute news.

If we are really looking for a truth-based justice system, and not just a gladiatorial adversary model, we want as much truthful information as possible.

Sunday, October 10, 2004

Heresy in the War on Drugs

by Josh Marquis
printed Sunday, October 10, 2004, in the Oregonian

In the War on Drugs, as in most wars, there's a little truth on each side of the battle.

Oregonians will vote Nov. 2 on what's being called "Medical Marijuana 2." It's the Measure 33 sequel, if you will, to an existing law that, sort of, allows the use of marijuana if someone can get a doctor to write a note saying the drug would help the patient's condition. Contrary to popular belief, the law did not legalize marijuana -- and the law is now being abused by recreational dopers.

At the same time the Bush administration furiously denies marijuana has any medical value whatsoever. Amid this chatter there's been a deafening silence from the administration -- until last week, that is -- when it comes to a drug that's destroying families, lives and communities: methamphetamine.

We need to reprioritize our fight against dangerous drugs and raise the bar on methamphetamine while reducing the legal stigma of marijuana, recognizing it has limited medical use.

The Oregonian's devastating expose of the federal government's failures to limit the spread of methamphetamine ("Unnecessary Epidemic," Oct. 3-7) shows how we failed to slow what is clearly the most dangerous drug on the street.

Gov. Ted Kulongoski has proposed a bold, if controversial, rule change making it harder to access the base component of meth, pseudoephedrine, by putting cold medications behind the counter. And President Bush's drug czar endorsed the idea during a visit to Oregon last week.

It's a program that's worked in Oklahoma, and Kulongoski gets credit for doing something concrete and right now.

It's time we start thinking outside the box on drug control. There's something in my proposal -- let doctors prescribe marijuana but lock up meth -- to make both sides in the drug war hopping mad.

Oregon has been sensible

In an effort to meet the president's goal of reducing illegal drug consumption by 10 percent during his first term, the administration has gone for volume. Since marijuana is used by a far greater number of people than the so-called "hard drugs" (methamphetamine, heroin and cocaine), it's much easier to reduce overall statistical drug use by achieving even a small decrease in marijuana users.

But opponents of the Drug War are even better funded, albeit privately, than the government. Billionaire financier George Soros, through a vast interconnecting network of foundations, has undertaken a systematic campaign to eliminate drug laws or, failing that, prevent their enforcement.

Not content with the amount the law currently specifies, the pro-marijuana lobby wants to increase the amount to 6 pounds a year for patients. This isn't the marijuana most baby boomers smoked in high school or college at $10 a "lid." Through generations of genetic breeding, today's marijuana is often 10 times as potent, determined by measuring the amount of THC, tetrahydrocannabinol, in a plant.

In the '70s most marijuana contained about a 2 percent THC content. Now it can test at more than 25 percent.

Oregon has maintained a sensible approach toward marijuana use since 1973, when it became the first state to remove criminal penalties for possessing less than an ounce. Possession became a violation similar to a speeding ticket, punishable by a fine. Many states followed suit.

A more rational approach

Equating marijuana with methamphetamine is folly. By lumping all drugs into the same category we risk losing our credibility with young people. Teens will likely experiment with marijuana and, when they don't become dope fiends out of "Reefer Madness," assume there's no harm in "chasing the dragon" every once in a while by smoking heroin.

In 1970 the federal government adopted the Controlled Substances Act, which put all potentially addictive drugs in a range of schedules. Schedule 1 drugs with no legitimate medical use and very high risk of abuse include LSD -- and marijuana.

Schedule 2 drugs with some medical use but also with a high risk of abuse include OxyContin, and, currently, methamphetamine. Other schedules list drugs like Vicodin, Valium and, at the bottom, cough syrup, with its small amounts of codeine.

Licensed doctors can prescribe drugs in categories 2 through 5, with much stricter regulations attached to schedule 2 drugs, such as cocaine, which is a valuable anesthetic in certain kinds of surgeries. Methamphetamine gets the same listing only because it can help treat narcolepsy, a relatively rare disorder.

It's time we rescheduled marijuana from Schedule 1 to Schedule 2, acknowledging the limited but very real medical value of the drug. Methamphetamine -- also known as "crank" -- should be bumped up to Schedule 1, no legitimate use. Other drugs like amphetamine and Ritalin can be used to treat narcolepsy. Methamphetamine is easy to manufacture, lasts up to 12 hours and can provoke psychotic episodes.

By requiring a written prescription, rather than a doctor's note suggesting that marijuana might be useful, the number of real marijuana patients would plummet. Doctors would be much more careful about who they gave a marijuana prescription to.

Those two controlled substances changes wouldn't win the War on Drugs, but they'd signal a more rational approach, recognizing the real risks posed by marijuana and methamphetamine. Most criminal justice professionals would agree that 75 percent of all the serious crimes they handle involve substance abuse.

That doesn't mean drugs are the only cause. But just as alcoholism is devastating physically, emotionally and financially, so is illegal drug abuse. What's wrong with including a little common sense in this debate?

Saturday, October 9, 2004

DUII outrage in Astoria

The Associated Press ASTORIA, Ore. (AP) — After complaints two years ago about the way a drunken driving case was handled, the Astoria Municipal Court is facing criticism from Clatsop County District Attorney Josh Marquis about whether the court is following a new state law he wrote to tighten the rules on entering a diversion program to avoid fines or jail.

But Municipal Court Judge Kris Kaino, City Attorney Dan Van Thiel and a local attorney who handles many driving under the influence of intoxicants — or DUII — cases, all say the court is following the letter of the law.

"I think the court is acting appropriately," said Van Thiel, who acts as prosecutor in municipal court.

Marquis, however, notes the municipal court is not an official "court of record" supervised by the Oregon Supreme Court and answers only to the Astoria City Council.

Local municipal courts generally handle minor offenses such as traffic citations while the state circuit court system handles more serious cases along with civil lawsuits.

But DUII cases sometimes fall in a gray area between municipal and state courts.

"The concern I have is if the law is being interpreted in an utterly different way" in municipal court, Marquis said.

State law allows a person arrested for DUII to undergo court-ordered substance abuse treatment, called a diversion program. If the program is completed and the person follows other conditions, the DUII charge is erased from his or her criminal record.

But to be eligible, a person cannot have any other DUII convictions or participation in diversion on his or her record within the previous 10 years.

The Astoria Municipal Court did not apply that rule two years ago when Lake Oswego attorney Stephen Moore was allowed to enter diversion despite the fact he had a prior DUII arrest within the 10-year window.

The Daily Astorian newspaper filed a motion asking the court to reconsider the case, and Moore's diversion petition was rejected.

Moore was convicted on the DUII charge and sentenced to two days in jail and 18 months probation, and was required to pay $1,289 in fines and assessments by visiting Judge Robert Moberg. His driver's license also was suspended for a year.

Marquis claims the municipal court is again skirting the rules of the diversion program, this time by allowing people to fight their arrests while still leaving open the chance to seek diversion.

Last year, Marquis introduced a bill to the Oregon Legislature tightening the requirements for diversion applications. Senate Bill 302 was one of a series of DUII-related pieces of legislation approved by state lawmakers and signed by Gov. Ted Kulongoski. It took effect Jan. 1.

The bill requires defendants, as a condition for the diversion program, to first plead guilty or no contest to the DUII charge. It also limits the reasons to extend the diversion filing deadline.

The new diversion law specifically states that filing a motion to challenge evidence in a case is not good reason for a deadline extension.

Prior to the new law, Marquis said, many DUII defendants were challenging their cases in court, sometimes for several months, with motions to suppress evidence, then turning to the diversion option when all their legal arguments were exhausted.

"The intention of diversion generally is that you either take responsibility up front in a relatively quick span of time, or you challenge it. But you can't do both," he said.

In three recent cases in Astoria Municipal Court, defendants arrested for DUII were allowed to submit diversion petitions with the court while also filing motions challenging their arrests.

Kaino, who heard the three cases, says nothing in the diversion law, including the new language added last year, prevents a defendant from pursuing both a motion to suppress and diversion, if both are filed within the 30-day window.

"As far as the intent of the statute, it is clear on its face it says what it says," he said. "If the Legislature did not want to allow motions on diversions, it could have said that."

The Daily Astorian contacted five other municipal courts in The Dalles, Roseburg, McMinnville, Eugene and Lake Oswego to see how they would handle the potential legal loophole.

Officials from the other municipal courts said most people who are eligible for diversion apply for it rather than fight the charge.

Eugene Municipal Court supervisor Gabrielle Glenn said her court would never allow a defendant to simultaneously enter a diversion petition while fighting the charge with a suppression motion.

But Bruce Shepley, a Lake Oswego municipal judge, said the new law might actually make him more willing to allow a person to challenge a DUII arrest.

By requiring defendants to plead guilty or no contest as a condition of diversion, the law now forces them to effectively give up their rights to raise constitutional issues about their arrests, Shepley said.

Thursday, April 29, 2004

Josh Wins DUII Award

At the 8th annual DUII Multi-Disciplinary Impaired Driving Training Conference, held April 23rd and 24th in Tigard, the Oregon DUII Multi-Disciplinary Training Task Force presented their annual awards of excellence to various organizations, groups and individuals who made a significant contribution to deterring impaired driving in Oregon during 2003. The award winners and their accomplishments included:


This award is given to a city, county or state prosecutor who exemplifies proper and effective prosecution skills in the area of impaired driving and someone who routinely takes on the challenges involved in prosecuting impaired driving offenders. This person is also looked upon as being a leader in impaired driving prosecution and someone who sets an example for all prosecutors to follow.

The 2003 award winner was Clatsop County District Attorney Josh Marquis. District Attorney Marquis was selected for this award based upon his continued impact on impaired driving in Oregon. In 2003, Mr. Marquis was instrumental in the passing of Senate Bill 302, which now requires DUII offenders to make an acknowledgement of guilt prior to entering a Diversion program. Mr. Marquis is also one of the few remaining District Attorneys who prosecutes impaired drivers and takes an active role in reducing impaired driving in his county and the state.

Monday, February 9, 2004

Book Review: Gary Lowenthal: Down and Dirty Justice

by Josh Marquis
Special to The National Law Journal, February 9, 2004

Real justice is messy

Proving that no good deed goes unpunished, Gary Lowenthal, a law school professor, has repaid the kindness of the county prosecutor in Phoenix -- who allowed him to be a guest prosecutor during his sabbatical -- by revealing the shocking reality of plea bargaining, tired cops and less-than-perfect victims. Lowenthal spends most of the nine months working on a kidnapping case, during which he seems to identify and sympathize more with the defendant than the victim. And yet, though he may not have intended to, the picture painted by him about his experiences in Down and Dirty Justice (New Horizon Press 2003) is of a system that seems to work. In the end, the man who abducted and threatened the victim with a gun is convicted and imprisoned, aided by Lowenthal's participation.

After almost 30 years away from active practice, the world into which Lowenthal descended from his ivory tower was not what he expected. The author, who has Ivy League degrees, sniffs that, of the attorneys sharing his month-long orientation, "none of the four had attended a prestigious law school and three had grade point averages that placed them in the lower half of the graduating class."

He notes the measly $35,000 starting salary, implying that their choice of vocation is further evidence that prosecution is the rubbish bin of the legal profession. Had Lowenthal traveled the halls of state and federal prosecutors' offices across the country, he would have found that some of the best and brightest of our men and women in America have chosen to represent the community, passing up the financial rewards of private practice.

The book's title presages a discomfort Lowenthal clearly has with the untidy nature of justice in America. In a free society, justice is messy. In Malaysia, they have a very neat and tidy system: You spit on the sidewalk, the police arrest you and you get caned. It's all very orderly.

A messy reality

The reality of a criminal justice system with limited resources balanced against due process concerns is far murkier. Yet Lowenthal bemoans the fact that police investigations are less than perfect, witnesses' memories vary and plea bargaining is an absolute necessity in every jurisdiction. His greatest anguish, after repeatedly decrying what he sees as the unfair power of the prosecutor in our criminal justice system, was that during his brief tenure as a prosecutor he was bound by office policies that, rather sensibly, mandated harsher sentences for criminals convicted of using guns in their crimes. The very policies that Lowenthal found so restrictive were precisely what kept other prosecutors in his office-who he described as over-zealous-in line.

Lowenthal obviously brought to his sabbatical pre-existing expectations that the prosecutors hold too much sway. He sees the American justice system as a place where the poor and vulnerable who are victimized are in fact the criminal defendants, not the people whom they harmed. His view is shared by a majority of his colleagues in the academic community, the vast majority of whom-like Lowenthal-are disconnected from the grind of down and dirty justice.

Instead of taking some pride in playing a role in bringing a criminal to justice, Lowenthal ends his book with a lengthy diatribe directed at laws that require actual prison sentences and efforts to streamline an often ponderously slow justice system. In this way, he echoes a common theme among the criminal defense bar and opponents of the victims' rights movement, who object to mandatory sentencing as robbing judges of any discretion. Lowenthal clearly wanted to be able to apply his personal values to the case he was handling. Yet that sort of individual prosecutorial whim is exactly what the prosecutor's office policies-by which Lowenthal was constrained-seek to prevent. Lowenthal wanted to bring greater mercy to the case; mandatory rules ensured equal application of the laws for the victim.

Those who share Lowenthal's fundamental view of the American justice system as hopelessly flawed likely will find their preconceptions validated in this book. A more objective reader might well come away seeing that for all of its messiness, the justice system in Phoenix works quite well: The police arrested the right person, he was prosecuted for the crime he committed, he had good counsel who was unable to overcome the strong evidence of his guilt and then he got appropriate punishment. The only thing that seems out of place is that Lowenthal ended up visiting the man he sent to prison.

Yet in the end, it appears that justice was in fact accomplished. If this is down and dirty justice, let's all get good and muddy.

Wednesday, January 14, 2004

Prosecutor Bashing

by Josh Marquis, printed in, January 14, 2004

Prosecutor-Bashing by Criminal Defense Lawyers, Defendants, and Commentators -- And How the Media Aids and Abets It

Popular culture has always loved the criminal defense attorney, usually characterizing them as threadbare but plucky defenders of accused innocents. In contrast, prosecutors have long been depicted as overzealous, politically ambitious, and hell-bent on framing some poor marginalized defendant.

Recall, for instance, "Perry Mason" -- where hapless prosecutor Hamilton Burger managed to remain D.A. despite losing 250 consecutive murder cases featuring innocent defendants. That show began a long tradition leading up to more modern shows such as "The Practice," in which a threadbare but plucky Boston law firm stays afloat by having an inexhaustible supply of innocent criminal clients to defend.

Recently, the news media has only continued this tradition. Prosecutors have been repeatedly chastised for conduct that, at most, amounts to a minor infraction. At the same time, defense attorneys have been aided and abetted in foisting on the public an avalanche of publicity designed to poison potential juries against the prosecutors.

The Kobe Bryant Case: Missing the Real Issue

Consider the Kobe Bryant case. At the moment, the Bryant defense team has succeeded in convincing a judge to open an inquiry into the origin of some T-shirts that may have ordered by a secretary in Hurlbert's office. T-shirts? So what?

Meanwhile, lead defense attorney Pamela Mackey repeatedly disclosed the victim's name in court note once or twice, but six times -- despite warnings from the judge and a law in Colorado that forbids such disclosure.

Sadly, the story that captured the media's attention was -- you guessed it -- the T-shirts. By comparison, commentators were apparently much less concerned over the source of repeated "leaks" of the most private information about the victim.

But which poses a greater risk to impacting the potential jury pool - the purchase of a T-shirt by a secretary in the DA's office, or the public humiliation of Bryant's alleged victim? It is Mackey's misconduct that should have been the media's sensational lead; the T-shirts were a non-issue.

Admirably, Colorado prosecutor Mark Hurlbert -- who found himself thrown into public scrutiny with the Bryant case -- hasn't risen to the bait. Instead, he has been scrupulously terse in his public comments.

The Michael Jackson Case

Meanwhile, the Michael Jackson case presents even more outrageous contrasts.

Jackson's attorney, Mark Geragos -- the lawyer who never met a camera he didn't adore -- holds regular news conferences to denounce his client's accuser, the investigators, and the prosecutors. (Geragos's bank accounts doubtless grow exponentially with each high profile case he handles. The fact that his last actual jury trial resulted in his celebrity client, Winona Ryder, getting convicted of a felony seems to matter little to an adoring press.)

At the same time, talking-head TV is replete with a legion of self-described Jackson family lawyers, Jackson family members and Jackson family friends. And Jackson himself has also been given a podium -- and, reportedly, a paid one. CBS's august "60 Minutes" reportedly paid to allow the accused child molester to further poison the well of public opinion in an interview that turned into what was, in essence, a stylized music video. (CBS has denied the claim.)

Many of the attacks by Geragos and others vilify Jackson prosecutor and Santa Barbara County District Attorney Tom Sneddon, in particular. Yet Sneddon's greatest sin was an occasional jocular comment during one news conference. He has never crossed the lines drawn in the ABA's model rules about pretrial comments by a lawyer.

Compare that to Geragos' scorched earth threat against any witness who dared make an additional accusation against his client.

The reality is that Tom Sneddon had done nothing to seek the spotlight of which Geragos seems so fond. In fact, he had already announced that he was retiring after a long and honorable career defending the public of Santa Barbara County.

Indeed, more generally, the claim that prosecutors are spotlight-seekers who seek to leverage their fame, is almost always entirely off base. The reality is that the job of District Attorney is a lousy springboard for a political career.

After all, while an aggressive prosecutor may win some friends, he or she is also bound to alienate a part of any community. A prosecutor's job is to indict criminals without regard to their prominence or influence in a given community, and that job doesn't inherently lead to popularity -- and it can lead to just the opposite.

Lawyer-Commentators Can Be the Worst Media Culprits

Lawyers, even those not directly involved in a criminal case, are supposed to avoid making comments likely to prejudice potential jurors. But in the Jackson case -- as in other high-profile cases -- such comments have been rife.

Although these commentators seem to hold district attorneys in great contempt, that doesn't stop them from identifying themselves as "Former Prosecutor" in the crawl on the TV screen. (One can only assume that these lawyers who so freely speculate about the facts and tactics of pending cases choose not to describe themselves as defense attorneys because they know in what low regard most "civilians" hold the criminal defense bar.) At the same time that they bash prosecutors, they are not above invoking the respect the office still commands.

Consider the Jackson case. One major television network announced "Breaking News" when a former prosecutor who should know better, Kimberly Guilfoyle-Newsom, revealed that she had magically acquired and listened to an audio tape in which Jackson's accuser's family seems to exculpate the pop star.

Meanwhile, Larry King's show on CNN featured callers from around the world phoning in their adoring support for 45-year old pop star who sees nothing wrong with sharing his bed with a child, and attorney guests and others who seek to bolster Jackson's defense.

The proper role of legal commentators is to interpret events for viewers in the context of the larger legal system -- that is, to act as experts. It is not to express views on the case in an apparent attempt to influence potential jurors.

How Media Circuses Hurt Victims -- and Scare Future Victims

Celebrity has became the great corrupter in our legal system, trumping money as a force capable of truly perverting justice. The public must have confidence that the laws apply equally to people of any station or degree of celebrity (or lack thereof).

That confidence is threatened when the legal profession and the media permit gutter journalism to dominate discussions of criminal cases. These cases have serious implications not only for the defendants, but also for those who would give anything to avoid publicity - the victims. They also have serious implications for the willingness of future victims to come forward, knowing they will only subject themselves to the same media circus they have witnessed so many times.

What lesson do women subjected to date rape, or children sexually exploited by people they trusted, learn from the Roman circus that surrounds high profile criminal cases, especially those involving celebrity defendants? Sadly, the message is to shut up - keep quiet or risk the wrath of lawyers like Geragos.

Fortunately, many victims are brave enough to come forward anyway. And in the end, jurors usually get it right, despite the best efforts of spin doctors.