Thursday, December 29, 2005

Oregon's Death Penalty

OpEd in The Oregonian, Thursday, December 29, 2005

Many people have read columnist Steve Duin's five-part saga of the murder of Rod and Lois Houser and the thus-far 17-year voyage of their killer, Randy Guzek, through the legal system.

The Oregonian's editorial board expressed its own frustration over the irony that Guzek survives and is likely to for at least another decade or two. I have strong feelings on the case, having twice argued the death penalty for Guzek to Deschutes County jurors and want to respond to some of the letters and one commentary by William Long ("Facing the failings of our death penalty law," Dec. 16) on the case.

Long argues that life without parole should replace the death penalty as the ultimate sanction. But what would happen if we substituted "life" for "death"? If the past is any indication, we should expect more innocents to die. People will die at the hands of killers serving "life" whether they did their time and were released (Richard Marquette of Salem) or escaped (Carl Cletus Bowles of Eugene). I have no doubt that without the specter of death for some of the worst killers (like Edward Morris, who slaughtered his family in rural Tillamook County, and child-killer Ward Weaver) they would never have agreed to forgo a trial in return for a sentence of life without parole.

The resources and time invested in aggravated murder cases in which death was not a possibility is almost as great as capital cases. Oregon provides a very high level of defense for those indigents accused of murder, as it should. But to claim, as one letter writer did, that "if Guzek were a rich celebrity [he] would be a free man" is ridiculous. Guzek's guilt has never been questioned since a jury convicted him in 1988. He may not be a celebrity, but he has had and continues to receive the defense of a very rich man.

Another series of letters, some by sincerely dedicated foes of Oregon's death penalty, claim that capital punishment is neither a deterrent nor justice. Honest people can differ on the morality of the state-sanctioned taking of a killer's life, but recent studies from Emory University, the University of Colorado and several other academic institutions show that for every death penalty that is carried out, approximately 17 murders are deterred.

The research is so compelling that it has led progressive legal scholar Cass Sunstein of the University of Chicago to publish a provocative paper titled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs." Sunstein argues that if we know with certainty that using capital punishment saves roughly 18 lives by preventing that many murders for each execution, how can we justify not employing the death penalty? The studies he relies on are conducted mostly by nonideological economists, one of whom even made a point of expressing his own dislike for capital punishment, believing it was racist.

No one has been released from Oregon's Death Row because anyone argued he was factually innocent. The racial composition of Oregon's Death Row mirrors the overwhelmingly white population of the state, while several of the victims of those on Death Row were people of color.

Oregon's prosecutors continue to be appropriately sparing in the number of times they seek the death penalty. Oregon juries are even more discriminating in when they impose it. It seems the one thing we can all agree on is that waiting 20 to 30 years for a killer to be punished is absurd.

Friday, December 23, 2005

Why Criminal Defense Attorneys Hate Josh, Part III

"Dealing with Jurors' Expertise"
Leonard Post
The National Law Journal [click link for printer friendly version]
December 23, 2005

As blanket occupational exemptions for jury duty become a relic, litigators are split on whether there's a need for specific jury instructions to keep jurors from relying on their expertise in evidentiary matters.

One court system -- New York's -- instructs professionals to keep their expertise outside jury rooms. No other court currently singles out professional jury-deliberation conduct in jury instructions.

The issue is pressing enough that jury researchers are completing a research project that will recommend several jury instructions to let jurors know how they can use and not abuse juror expertise, rather than simply admonish them to pretend they are blank slates.

Automatic exemptions from jury service for certain professionals have been removed from most state and federal courts over the last several years as a way to ensure that juries are drawn from more representative cross-sections of communities. Courts have found that it increases the number of people available for jury service and spreads out both the educational value and the burdens of jury service, which may include time, expense and lost income.


Litigators disagree on the latitude professionals should be given.

Roger Crane, a litigator in Nixon Peabody's New York office, said the instruction gives New York jurors permission to police violators.

"If a juror has applicable professional expertise and uses that expertise to make a new point in deliberations -- which may be wrong -- there is no ability by either side to respond to it," Crane said. "The result is that you have a verdict based on one juror's conclusion -- not 12."

He noted that New York's jury instruction "warns the other jurors to guard against somebody making an argument in support of a position based on their own particular expertise.

"As a practical matter, the jury instruction is the weapon the judge is giving the other jurors to blunt such arguments: 'The judge has said you're not supposed to do that. if you keep doing it we'll report you.' That's a powerful tool," Crane said.

But Alan Klein, a litigator at Philadelphia's Duane Morris whose practice is now mainly products liability defense, does not want jurors with occupational expertise to be singled out in a jury instruction.

"The general instruction about being fair and impartial and weighing the evidence against their life experiences is enough. I like having an intelligent jury. I've never attributed a verdict -- win or lose -- to a juror going over appropriate bounds."


Ira Raphaelson, a litigator in the Washington office of O'Melveny & Myers, said that "[w]e need to struggle to find a societal balance between the interests of having professionals serve on juries and the dangers that ... [they] may hijack the jury process with misinformation.

"Hopefully, judges can instruct jurors in a meaningful way that just because a doctor is sitting on a malpractice case doesn't mean that the doctor's evaluation of the facts should be given more deference than any other jurors, while at the same time not giving the doctor's view of the facts less deference than any other juror," Raphaelson said.

Few appeals courts have attempted to draw a line that defines the limits of experience jurors are allowed to bring to deliberations.

In 2000, New York's highest court overturned a conviction for criminally negligent homicide because two nurses on the jury shared their professional opinions about the effects of blood loss, a disputed material fact that had been the subject of expert testimony.

The New York Court of Appeals, in finding juror misconduct, said that "Other jurors are likely to defer to the ... expertise and evaluations by professional jurors, over and above their own everyday experiences, judgment and the adduced proofs at trial."

The court acknowledged the conundrum faced by professionals: separating life experience from expertise, and that "the personal mental processes" of jurors would not be subject to impeachment. However, it held that "the substitution of [jurors'] own professional opinions becomes fatal when shared with other jurors." People v. Maragh, 94 N.Y.2d 569.

At the behest of the Maragh court, both the New York state civil and criminal jury commissions drafted instructions that differentiated between ordinary and professional opinions.

Civil: "[Y]ou may not communicate any personal professional expertise."

Criminal: "[I]t would be wrong for you to rely on that special expertise to inject ... a fact not in evidence, or an opinion that could not be drawn ... without that special expertise."

Judge Leonard B. Austin of the Nassau County, N.Y., Supreme Court commercial division who is a member of the state civil jury commission, presided over a business dissolution case in which the lawyers allowed an accountant to sit on the jury.

"Why they left the accountant on I'll never know, but the lawyers were quite satisfied," Austin said. He added that if he were a juror, he'd try, but he's not sure if he could separate his professional knowledge from evidence he had heard in a business case.


Most jurors would find the New York mandate to separate professional from other experience impossible, said Shari Seidman Diamond, a professor at Northwestern University School of Law who is a specialist in juror conduct.

Diamond, a senior research fellow at the American Bar Foundation who is conducting a study on the role of professionals in jury rooms, has been the lead researcher in several studies that have mined data from videotapes of 50 real voir dires, civil jury trials and deliberations in Pima County, Ariz., from 1998 to 2001, as well as questionnaires given jurors and judges after the trials.

Diamond is currently looking at the tapes to observe the interplay of occupational and work expertise on those deliberations, and has found that 22 percent of the jurors had occupational or work experience backgrounds that related to evidence in their trials.

"Jurors are told they're supposed to use their experience and common sense -- that may include their professional training," said Diamond.

"Even if we say 'Forget your professional knowledge,' jurors couldn't do it and I don't think it's desirable," Diamond added. "The question is where the boundaries are. We can't ask them to do things that are psychologically impossible -- we ask them to do enough mental gymnastics.

"I think we can do better than we do now [in most state and federal courts], which is not to tell them anything," said Diamond, who expects that at the study's conclusion she will recommend an alternative approach: instructing jurors how to deal more realistically with juror expertise and experience.


California's high court saw its first occupational juror misconduct case in 1990, but found the error harmless.

In a capital case, a law enforcement officer told his fellow jurors that just because there was no evidence presented in the trial's penalty phase that the defendant had a juvenile record didn't mean he didn't have one, because juvenile records are sealed.

In fact, the court said, as a matter of law, juvenile records are not sealed for penalty-phase purposes. People v. Marshall, 50 Cal. 3d 907.

In California, juror expertise is covered in a general instruction, but with far less emphasis than New York's.

Wisconsin Circuit Court Judge Gary Carlson said jurors are told that they "may take into account their experiences in the affairs of life." He takes that to include anything they might know, including any particular expertise.

"Lawyers who allow a juror with professional expertise on a jury in a case that involves that expertise ought to have to live with the results," said Carlson.

"I would not give a special jury instruction because I would not want to single out a juror. 'Juror X, you may know things, but forget about them.' You'd be highlighting the issue," he said. "That juror may now feel compelled to bend over backwards one way or another.

"We don't want idiots ... . We want intelligent jurors who deduce facts and come to conclusions from everything they've come to know in life: background, knowledge, experience. I don't think we expect professional people to do any less. Why would we?"

Carlson differentiates between weighing the credibility of testimony they've heard and giving testimony.

"The trajectory of a bullet, for example, bouncing off this organ and that. 'You're a doctor,' a juror might say to another. 'Is that the way it works?' 'No,' the doctor says. 'The spleen's on this side, not that side. It couldn't happen that way.' That's a credibility issue," Carlson said by way of example.

In post-verdict discussions in a medical malpractice case, a juror who was an emergency medical technician volunteered to other researchers that he knew from his medical experience that the defendant doctor had caused a permanent limp by his improper treatment of a fracture.

"But what if his knowledge had come from a personal experience, say that his brother had had?" asked Tom Munsterman, the director of the Center for Jury Studies of the National Center for State Courts. "Could he have used his experience in that circumstance?"

Munsterman suggested that the fix might lie in allowing jurors to ask questions, which more and more courts allow.

"The EMT could have asked the expert why the doctor had chosen that course of treatment," he said.

In addition, Munsterman said, research has shown that juries are "very good at self-policing," deciding whether a particular discussion is allowed.


Oregon has never had occupational exemptions, said Clatsop County District Attorney Joshua Marquis, who co-chairs the capital litigation committee of the National District Attorneys Association and is the association's vice president. That's fine with him.

"We want representatives of the community, not just retirees, government employees and people who work for huge corporations. We pay such crap," he said. He likes doctors, EMTs and nurses in particular.

"They tend to be practical people who know bullshit when they see it," said Marquis.

But he eschews lawyers who "cannot resist the temptation to insert themselves as litigators, especially if they weren't litigators."

He noted that the only murder case he'd ever lost had a lawyer on the jury.

"They're terrible jurors -- I should hit myself in the face with a stick if I ever let a lawyer on a jury again."

Marquis said he doesn't see how a jury instruction on the use of expertise would effect a cure.

further reading:
Part I
Part II
Part IV

Tidings of Comfort and Joy

In my line of work we see people at the very worst times of their lives.

Most of the time they never want to remember the terrible days they spent being interviewed and then cross-examined in court. At best we bring a little justice into their lives, but never “closure.”

My office has 17 employees -- five deputy district attorneys and twelve legal assistants and victim assistants who handle literally dozens of cases each day. People who visit the office are usually astounded at the sheer ferocity of the work as we are pushed at one end by the criminals and the cops who arrest them, and at the other by the court system setting cases every 20 minutes.

A few years ago I decided to gift a polo shirt to each new employee. They are dark blue with the gold seal of the Office of the District Attorney embroidered over the heart. Like many businesses we observe “casual Fridays” for those who don’t have to appear in court, and it drives the defense lawyers crazy to see a dozen staffers decked out in the blue and gold colors of the State of Oregon.

the Badge
This year I shared with my staff a letter I received a few years ago from a woman I admit to having long forgotten. They are the worker bees who do the daily work that makes a difference in so many ways great and deceptively minor.

The letter is from a victim of serious domestic violence who wrote that she “was a forgiving victim and did my best to convince you not to pursue the case.” I had insisted on going ahead with the prosecution, as a prosecutor often must in domestic violence cases.

She went on to say, “I want to let you know that you did me an enormous favor. . . . I’ll never forget what you said. . .and how one day he would kill me if he was not stopped.” She wrote that she had gotten a restraining order, a divorce, and had a rewarding career as a legal assistant with an attorney, and “was happier than ever.” She ended by saying that “People who know how horrible things were before ask me what made me finally get out, and I think it began with you. Thank you for caring. I just wanted to let you know that you made a difference.”

I know my staff often feels like Sisyphus eternally rolling the rock up the hill. So, it may be corny but I often remind myself and others of the story of the two kids walking down a beach after a very high tide that has washed thousands of starfish onto the beach. Every few feet one kid reaches down, picks up a squirming starfish and throws it back into the ocean.

His friend says “Why are you wasting your time? There are so many. You can’t make a difference.”

The first kid reaches down, picks up a starfish, throws it back into the water and says :

“It matters to this one.”

In this season, please extend a wish to the many unsung men and women working in thousands of prosecutors' offices across America “And with true love and brotherhood each other now embrace.”

And to SSgt Joshua Marquis (no relation), stationed in Baghdad defending the Iraqis' right to try Saddam Hussein for crimes against humanity, write him and send him a prayer: "For Peace on Earth, good will towards men.”

So, in ways large and small: Tidings of Comfort and Joy in a sometimes cruel world.

(NOTE: Check back after Christmas for a major rant on the criminal defense lovefest called “Injustice” that starts as a mid-season replacement on ABC-TV. The press release tells us these lawyers “Focus on cases where justice runs amok, cases in which an innocent person has been wrongly convicted of a crime.” Never mind that defense lawyers who represent only innocent clients would starve in about a week.)

Monday, December 19, 2005

Vanity Fair Goes Over the Top

While I'll never be able to afford 95% of what is advertised in what can only be called the "National Enquirer for the Upper Class," I always enjoy reading the remarkable writings of Christoper Hitchens, Dominick Dunne, and Buzz Bissinger in Vanity Fair.

But in the January 2006 issue of VF (whose cover features Naomi Watts as a Vargas Girl) there is a "Postscript" on page 44 that is an ode to former Gozno journalist Hunter Thompson, who took his own life in February of 2005. In an article at times rambling and incoherent entitled "The Prisoner of Denver," published in 2004 in VF, Thompson took on the cause of Lisl Auman, Lisl Auman
another pretty white person convicted of a serious crime. Auman was doing life for being an accomplice to the 1997 murder of Denver police officer Bruce VanderJagt.

Thompson, who was the poet laureate (I'm not making that up) of the National Association of Criminal Defense Attorneys, worked himself into his usual frenzy:
The NACDL brings a heavyweight presence to this case that will quickly level the playing field. Nobody needs a public fight with a team of Elite warriors from the NACDL. It will be like having to fight Joe Frazier every day for six months. There will be injuries, and there will be more than one trip to the Emergency Room this time. No more easy wins for the black hats. The worm is about to turn. That is also a good early bet. Take my word for it.
Although VF makes much of the fact that such legal luminaries as Sean Penn, Benicio Del Toro and Johnny Depp joined Thompson in his quest to free Auman, the actual facts are -- as always -- a little more nuanced than the Hollywood version. In as short a form as possible, here they are:

In 1997, Auman was 21-years old and recruited skinhead and major criminal Mark Jaehnig to burglarize the home of an ex-boyfriend. The burglary went bad and Auman and Jaehnig fled in a car chase complete with a gun battle with police that topped 100 mph. At some point the car stopped. Auman was arrested, refused to help police and shortly thereafter Jaehnig shot Officer VanderJagt before killing himself.

Much is made of the fact that Auman was in police custody when the actual murder took place. Still unanswered is what exactly Auman was doing while Jaehnig organized his arsenal of weapons and fired on police.

A lot of ink and bandwith and has been used to blast what critics have called the medieval law of "felony murder," where a person knowingly involved in a serious felony that results in the death of another is guilty of murder. Far from being some weird anachronism, the felony murder statute is part of most states' criminal codes -- and for good reason. The getaway driver who speeds the bank robber from the scene where a bank guard is shot dead is guilty of the crime, if not exactly to the same degree.

It may well have been that the life without parole sentence Auman received was too harsh. But when the Colorado Supreme Court overturned her conviction and sent it back for retrial it was not because of any defect in the felony murder law. Like so many other reversals heralded by defense lawyers and their supporters, it was on a jury instruction issue.

The name that never appears in VF's postscript is that of Bruce VanderJagt, the 47-year-old father who was also a psychologist. Instead would have its readers believe that Auman’s "unjust conviction" has now been overturned and that she will soon be "completely free from incarceration."

Like so many of those heralded by the glitterati as "exonerated", what Auman actually did was take an offer to plead guilty to Accessory to Murder and Burglary which resulted in her prison sentence being slashed. She was released to a halfway house in October of 2005. Officer VanderJagt's widow supported the deal since Auman finally has accepted some responsibility for the officer's death.

While Auman will walk free soon, a heroine to the NACDL, she will never be able to leave behind both her legal and moral responsibility for the death of a good man, Bruce VanderJagt.Bruce VanderJagt

Monday, December 12, 2005

For select few, death is just

For select few, death is just
Many newspapers have noted that we recently passed a milestone: the 1,000th execution of a murderer since the Supreme Court reauthorized the death penalty in 1976. What is not noted, and certainly not named, are the nearly 500,000 victims of murder since that same year. (Related: Our view)
Capital punishment is an extreme sanction that is properly reserved for the worst of the worst: the Ted Bundys, the John Wayne Gacys, the Timothy McVeighs. Yet few people can recall the name of a single murder victim. The fact that one in 500 murderers receives the death penalty underlines the appropriate rarity with which it is used.
Over the past decade, the violent crime rate — and, more significant, the rate of murder — has dropped dramatically. Several recent academic studies show a clear deterrent effect from judicious use of this extreme sanction. The goal should not be abolition but greater discrimination in its use.
A consistent majority of Americans, from blue states and red, Democrats and Republicans, support the availability of capital punishment. While there is a valid moral argument against it, claims that it is racist and that killers get lousy lawyers are largely urban myths. While a black man is seven times more likely to be murdered than a white man, almost twice as many whites are executed. Many states, such as Oregon, spend hundreds of thousands of dollars defending each killer charged with capital murder.
Some claim life without parole is an adequate substitute. What they fail to note are the people, both inside and outside prison, who die at the hands of convicted murderers. Nor do they seem to comprehend that the only reason many terrible murders are resolved with a plea to a "true life sentence" is the specter of a possible death sentence.
Opponents claim the death penalty is arbitrary. So is homicide. Thus, each case must be examined individually, first by a prosecutor, then by a jury in two phases, then by more than a decade (on average) of appeals.
We all agree: 10 guilty men should go free to prevent one innocent from being wrongly convicted. But how about 10,000 guilty, or 100,000, going free? How many victims become too many? What do we say to the victims of killers like Kenneth McDuff, Robert Massie or Carl Cletus Bowles, all murderers doing life who got out and killed again?

At the Supreme Court

Mrs. Van Rysselberghe, me, Judge Pierre Van Rysselberghe (the judge who presided over Guzek 3), outside the courtroom at the Supreme Court.

Saturday, December 10, 2005

Supreme Court report

from The Daily Astorian
Friday, December 9, 2005

Supreme Court visit has local prosecutor in awe of the law
High court hears appeal in Oregon death penalty case

For The Daily Astorian

On Wednesday, Clatsop County District Attorney Joshua Marquis was admitted to the Bar of the U.S. Supreme Court. Here is his report from the nation’s capital.

WASHINGTON — Wednesday morning was not my first time in the nation’s capital, nor in the Supreme Court building. Until that day, however, I had never gone farther than the gift shop and down to the basement to pick up an application for admission to the Bar of the Supreme Court.

When I entered the chamber of the Supreme Court of the United States, I was immediately struck by its surprising intimacy.

Make no mistake, the architectural grandeur of the 70-year-old building broadcasts the message that this is the high temple of American justice. I could not help but be awed when a bell sounded after the courtroom was packed with lawyers, guests and spectators, and the Marshal of the Court called out: “Oyez! Oyez! The honorable Justices of the Supreme Court are now in session. Draw near and you shall be heard.”

Dark red curtains parted, and all nine justices emerged simultaneously.

I was in the courtroom for two reasons. I would be admitted to the Bar of the Supreme Court, and I was there to hear arguments concerning a case I had prosecuted decades ago.

My brief moment was right after court opened. Oregon Attorney General Hardy Myers approached the podium and asked, using carefully scripted words, to consider “Joshua Kai Marquis of the Bar of Oregon for admission to this Court.” I was then directed to stand, and the Chief Justice of the United States looked directly at me, smiled and said, “Mr. Marquis, you are admitted.”

It was a heady moment and truly an honor, as it is unlikely I will ever personally argue a case before the Supreme Court.

The Guzek case – again
The case that brought me to the American temple of justice has deep roots.

In 1987, Randy Guzek murdered Rod and Lois Houser in their remote home in Central Oregon. In 1988, Guzek was found guilty and sentenced to death. In 1990, the Oregon Supreme Court threw out all then-existing Oregon death sentences, and in 1991 I was the trial prosecutor for what became known in the odd idiom of law as “Guzek 2.”

The jury again sentenced Guzek to death and a few years later the Oregon Supreme Court reversed the death sentence, on the sole ground that the trial judge should not have permitted the victims’ family from briefly telling the jury what the Housers were like.

In 1997, at the request of the victims’ family, I returned to Bend for two months as a special prosecutor. A jury sentenced Guzek to death again, this time after deliberating less than two hours. A couple of years later, the Oregon Supreme Court overturned “Guzek 3,” primarily on the grounds that he should have been considered for life without parole, a sentence that did not exist when he committed his crimes.

The Oregon Attorney General’s Office filed for a writ of certiorari which was granted and set for oral arguments in Washington, D.C., on Pearl Harbor Day.

Singular attention
Of the thousands of appeals to the Supreme Court each year, less than 100 are granted review (known as certiorari), and of those only a handful are scheduled for oral arguments, earning their lawyers a trip to the most important courtroom in America. In those few cases, each side gets exactly 30 minutes.

On either side of a podium, there are three chairs for each side. On the desk in front of each chair is a goose quill pen waiting for ink wells that have been gone for more than a century. In the Guzek case, one of the prosecution’s chairs was taken up by a deputy solicitor general of the U.S. Justice Department, who wore a formal tailcoat.

There are two lights on the podium from which the lawyers address the court. The white one is lit when time is almost up. When the red light comes on, attorneys are expected to stop – in mid-sentence if necessary. Unlike on television, the criminal defendants are not present.

I am a trial lawyer, not an appellate litigator, so it takes a special restraint to sit 20 feet away as appellate counsel and the nine Justices discuss a case into which I’ve poured my heart and soul for a decade. Yet, as Oregon Solicitor General Mary Williams was interrupted almost immediately into her argument, I was instantly grateful that my role was limited to that of observer.

I was concerned that Williams was being peppered with questions that seemed to ask “What are we doing here?” but she had deft responses to all of the justices’ pointed questions.

Then the chief appeals lawyer for Guzek, Richard Wolf, stood to defend the decision of the Oregon Supreme Court. Any worry I had quickly vanished as one justice after another besieged Wolf with even tougher questions. One national reporter described Chief Justice John Roberts as “incredulous.” Justice Steve Bryer, a member of the court’s four-person liberal block and known as a critic of the death penalty, pounced on Wolf with demands about what would happen at “Guzek 4” if the high court agreed with him.

“I want a ‘yes’ or ‘no’ answer,” Breyer finally demanded.

I actually felt sorry for Wolf, particularly after a seasoned Supreme Court reporter for a national newspaper told me he had rarely seen counsel take such a beating.

Of course, the justices could still vote his way. They meet in secret to decide cases but, unlike other appeals courts, they always return with a decision within the term they hear the case.

Earnest respect
For the hour we were in court all traces of rancor that often exist in the trial court were gone, replaced by an earnest respect for the law. And, as solemn as the subject and serious the proceedings, the judges don’t hesitate to laugh. It was surprising to see arch-conservative Justice Clarence Thomas chatting up his neighbor, Justice Breyer.

And there is the solid reminder of my own oath of office, chiseled in marble : “A Nation of laws, not men.” It should not matter who wears the robe or sits as district attorney, the law should be equally applied to all, without fear or favor, or promise of reward.

I’ve tried hundreds of cases, from shoplifting to aggravated murder, and I cannot but be moved by the dignity and civility of this elaborate ballet of American justice.

Sunday, December 4, 2005

Karma Comes Around For Tookie

UPDATE: Oregonian columnist Steve Duin begins a five-part series today on the story behind the cold-blooded murders of Terrebonne residents Rod and Lois Hauser, in 1987, by Randy Guzek. Guzek has been sentenced to death by threer separate juries, for the last two of which I served as prosecutor. Guzek's latest appeal has made it to the Supreme Court. On Wednesday the Supremes will consider whether alibi testimony which Guzek has never previously submitted could have been admitted during the sentencing phase. Remember, this is three trials -- 36 jurors -- later that Guzek's trying to say he wasn't there. I'm very honored to be able to be admitted to the Supreme Court Bar on Wednesday and to be in court during the brief, and to be there bearing witness for Rod and Lois Houser.

Here's my OpEd in today's LA Times. The editors chose the title, which makes it seem as if I think all murders should be executed. I don't. ::::::::

He's A Murderer. He Should Die.
By Joshua Marquis
district attorney of Clatsop County, Ore., is vice president of the National District Attorneys Assn. and coauthor of "Debating the Death Penalty."

There are heartfelt moral and religious reasons to oppose capital punishment, but holding up Stanley Tookie Williams as a symbol of redemption is absurd and obscene.

It is especially offensive to his victims' families, whose names the celebrities championing his cause probably don't know. News coverage rarely mentions Albert Owens or the Yang family, all gunned down by Williams in a series of crimes in 1979. The Crips' reputed co-founder also bears moral responsibility for the deaths of countless young black men.

Williams told the BBC in a 2003 interview that his imprisonment is the result of "bad karma." He is more right than he probably intended. Karma is the consequence of choices freely made. Williams chose death for a lot of people, without justice, without appeal, without consideration of anything other than his totalitarian goals.

Stripped of his celebrity, Williams isn't much different from the more than 600 men on California's death row. He killed multiple victims, he has never taken responsibility for his crimes, and he has had decades to fight his death sentence.

Not only did he brag to his brother about the dying anguish of Owens, but after slaughtering the Yang family, he boasted to fellow gang members he had killed "some buddhaheads." His true distinction comes only in his possibly being the second African American among the 12 people the state of California has executed in the last 35 years.

According to a Gallup poll in May, nearly 75% of Americans support capital punishment for murderers. There are some murderers so heinous and so evil that removing them is the measure of the severity of their violation of the social contract. Williams qualifies.

Religious, artistic and academic elites that most vociferously oppose capital punishment are the least affected by violent crime. They invariably avoid discussion of the toll homicide takes on victims, their survivors and the communities hardest hit by murder — people of color and the poor. A black man in the United States is seven times more likely to be a victim of homicide than a white man.

So what makes Williams deserving of the extraordinary benefit of commutation? We are asked to believe that because he has coauthored some children's books he has "reformed." Yet he refuses to do what we morally and legally expect even from shoplifters: to express remorse for his actions. His true legacy may lie with his children. His namesake, Stanley Williams Jr., is doing time in another California prison for second-degree murder.

Williams claims he discourages kids from getting involved in gang life, yet a San Quentin official recently suggested that he still orchestrates gang activity outside the prison, according to an Associated Press story.

In his 2004 memoir, he refused to back off the code against "snitching," in which identifying a drive-by shooter is considered a worse sin than shooting a 4-year-old in the head with a Tech-9.

The clamor for Williams' clemency may persuade Gov. Arnold Schwarzenegger to dispense mercy to him, something Williams never gave Owens, the Yangs or any of the thousands of people the Crips have killed, maimed or terrorized.

But clemency for Williams will not advance serious discussion of the merits of capital punishment. Nor will it succeed in silencing the distant voices of the victims who never make the headlines except as a footnote to the saga of a gang lord adopted by the glitterati.

Williams' case recalls that of Norman Mailer and his friends, who "adopted" killer/writer Jack Henry Abbott. After Mailer and others secured his release from prison, Abbott stabbed and killed a young aspiring actor.

If his sentence is commuted, Williams will be an even shinier icon to the thugs who follow his example into violence and incarceration. He will roam in the general prison population, while his disciples stalk California's streets and malls.

Wednesday, November 30, 2005

(TV: Commander In Chief) Name the Dead

Okay, I shouldn’t watch television whenever a show tries to talk about a subject I actually know something about.

But I recorded Geena Davis’ new show, Commander in Chief, about the first woman President and what are they discussing but…..the death penalty. In the back story we have learned that Davis’ character was an Independent who was a University President following a career as a homicide prosecutor (??).

The main storyline for this week’s episode was about a woman on death row -- in Texas of course, with a “room temperature IQ,” of course – never mind that under the Atkins case a retarded person can’t be executed. But why should reality intrude.

We get a clue where new showrunner Steven Bochco, who wrote this episode, falls on this subject when the President explains the case as a “dim-witted girl who fell in with a bad guy who robbed cab drivers and one of them died.” Gee, sounds like the victim might as well have gotten hit by a bus.

Then the President’s old law school pal brings a handmade card written by the condemned killer that reads like a third grader. We also find out that the condemned may or may not have been the actual shooter. Certainly doesn’t sound like Tookie Williams or Karla Faye Tucker.

But: “I can save her life,” Davis’ character declares. Hmmm, really? The pardon power of the President extends only to offenses cognizable under Federal law. Must've been something more to this "falling in" story.

The back story is about Davis's first Thanksgiving as president. Instead of pardoning the turkey, what a surprise: she pardons the dim-witted Texas murderess.

(I wrote that last paragraph, about the turkey, halfway through the show, before knowing the ending. Am I psychic?)

Everyone has a lovely Thanksgiving dinner -- except the dead nameless cab driver and his grieving nameless family who may or may not have been able to afford a big fat turkey this year, what with dad's income gone and all.

Many ancient advanced cultures believed that it was important to name the dead. If the dead were named their souls would live on.

How many of the dead by the 3000+ condemned murderers in America today can you name?

The 1000th Execution?

I wish I'd thought of this but a website called got there first:

1,000th Execution Delayed, Murder on Schedule

by Scott Ott

(2005-11-30) — Virginia Gov. Mark Warner yesterday granted clemency to convicted murderer Robin Lovitt, commuting his death sentence to life in prison and so delaying the 1,000th execution since the U.S. Supreme Court restored the death penalty in 1976.

However, a spokesman for the American Civil Liberties Union (ACLU) said America’s landmark 461,500th murder since 1976 should proceed on schedule.

“Our clients and future clients tell us that the domestic murder industry continues to be robust despite a decline in production in recent years,” said the unnamed ACLU source. “Americans should not worry that the stalled death penalty rate will hinder these persistent, hard-working citizens from carrying out their work with dispatch.”

Indeed, recent polls show public confidence in the efficiency of America’s killers has been bolstered by softness in the justice market.

Wednesday, November 23, 2005

Child Abuse is Real

Have you seen the Oscar-nominated "documentary" called Capturing the Friedmans? It's a remarkable piece of revisionist history about a once well-known child molestation case on Long Island, New York, in the late 1980s. Arnold Friedman, a school teacher, and his son Jesse were arrested and pled guilty to multiple counts of child molestation. Arnold died in prison and Jesse served his entire sentence.

Andrew Jarecki, who originally planned on doing a picture on the most popular birthday clown in NYC (who turned out to be the eldest son of Arnold Friedman), has produced and directed a film that seeks to cast shadows on places where none exists.

About 14 years ago the American Journalism Review published a remarkable article by Lisa Manshel called "Reporters for the Defense." (The article isn't available online but a there is a letter from Manshel about her article. Hit the link and scroll down about four letters.) Mahsel profiles three writers who consistently championed the cause of accused child molesters: Dorothy Rabbinowitz of the Wall Street Journal (since lionized for her work by the National Criminal Defense Lawyers Association); Mike Tiabbi (now of NBC news, who did his bit most recently by claiming that Michael Jackson's accuser's family were liars); and Debbie Nathan, who served as the "expert" for Jarecki's film.

As far as I can tell, Nathan has never seen a child molestation case in the news she thought was true. She's the author of books and articles calling attention brought to the subject as hysteria akin to the Salem witch trials or '50s-era McCarthyism.

The never-boring Mike Miner has detailed the latest dust-up in his Nov. 25 column in the Chicago Reader, quoting me:

Whenever prosecutors take a beating in America, the person to go to for the other side of the story is Joshua Marquis, an Oregon district attorney who's his profession's most visible champion. I asked if he'd seen Nathan's story and wasn't surprised to hear he'd already e-mailed a friend at the Times to challenge it.

Marquis wrote, "Most child abuse is not ritual or as notorious as the Friedmans' but otherwise is very similar, i.e. the victims often DON'T tell even when they have an opportunity -- particularly teenage boys for whom the stigma of being involved in homosexual sex is a big deal. . . . The victimizers are often trusted members of the family or community who have no criminal record."

He went on, "I'm not claiming that people like Nathan are insensitive. I'm claiming they want so hard to believe that such things just don't happen that it's preferable to believe in the caricature of the overzealous prosecutor bundling the innocent schoolteacher (Arnold Friedman) off to prison, largely because the scenario of wrongful convictions is easier to deal with than widespread sexual exploitation of children."

Marquis distinguishes genuine abuse "from the right-wing nut case 'satanic ritual abuse' that was popular in the mid-80s." But it was the tragic absurdity of those cases that finally made America think twice. "In my county and many others," Marquis wrote, "we have medically based child abuse assessment centers -- autonomous non-profits staffed by trained interviewers and volunteer physicians. The idea is there is exactly ONE interview with the child and it's done on videotape so there is no question about suggestibility, etc. The medical exam (as Nathan points out) rarely finds physical evidence of abuse but is important also because the child often makes disclosures to the doctor. In my experience our success rate has skyrocketed from about 60% to 95% when these cases go to trial, which they often don't because the evidence is so damning."

Read the full article ....

Tuesday, November 22, 2005

The Latest Exoneree

Another exoneree turns out to be a criminal after all. Even the Chicago Tribune admits it! -- painfully . . .

Wednesday, November 16, 2005

Why Criminal Defense Attorneys Hate Josh, Part II

Bad Blood: How a laywer once suspected of sexual abuse gets taxpayer money.
by Nick Budnick
Willamette Week [click on link for printer-friendly page]

Two years ago, when one of the state's top death-penalty lawyers left Oregon for Las Vegas, people thought he'd never come back. Criminal-defense lawyer Griff Healy was under investigation by the Oregon State Bar after being publicly accused of repeatedly raping a former law clerk.
But in April, Healy returned to Newberg, 20 miles southwest of Portland. He's getting paid by the public to represent defendants who can't afford their own attorney, and has billed $11,629 since August.
Moreover, Healy seems about to get the last laugh—both on the lead detective who pursued him for years, and on the man who last prosecuted him, Clatsop County District Attorney Josh Marquis.
In part, this is a story of a feud between a lawyer and a prosecutor. But it's also the story of how a lawyer can practice in Oregon despite a long history of alleged sexual misconduct, including rape and assault.
Standing 5-foot-9 with red hair and glasses, Griffith Steinke Healy was once considered one of the top death-penalty defense lawyers in the state, so it's unsurprising he doesn't see eye to eye with Marquis, one of the country's most prominent death-penalty advocates and a frequent guest on shows such as Nightline and Dateline.
Their animosity dates back to August 2000, when they went up against each other in two different murder cases in Astoria, and Healy was quoted in The Oregonian blasting Marquis about seeking the death penalty for one of Healy's clients.
Two months later, an ex-stripper hired as a law clerk by Healy went to police, claiming that Healy had coerced her into becoming his sex slave in Clatsop County, where Healy also tried cases. She said he used a combination of fear and an offer to give her a higher-paying job. She also said Healy, a former chairman of the national Alzheimer's Association, promised her he would lead a fundraising drive for research into a rare terminal illness suffered by her son.
Over the course of eight months, she says he forced her to have sex with strangers and repeatedly violated her with a pool cue, a Budweiser bottle and his fist.
Police from three jurisdictions and the Oregon Department of Justice began investigating the sordid tale. Witnesses who'd participated in her activities with Healy, however, said the sex seemed consensual; and Healy provided police with documents from his accuser's past that portrayed her as a liar with, as he put it, "emotional and psychological problems."
The clerk "has made allegations against numerous men in the past," Healy wrote to his attorney. "None of these allegations has ever been substantiated in a court of law."
Though the woman had credibility problems, the lead Newberg police detective, Ken Summers, suspected she was telling the truth. That's because in September 1999, another of Healy's former law clerks in his Newberg office had gone to Summers with a similar tale, also accusing Healy of sexual assault, this time in Yamhill County.
The 23-year-old clerk, who was married and a graduate of George Fox University, said Healy, then 50, had groomed her by befriending her, flirting and telling her she would be his partner when she graduated from law school.
Healy's two accusers did not know each other. But their stories were strikingly similar: Each alleged Healy took her to a park alongside the Willamette River and, over her objections, disrobed her and sexually assaulted her with his fingers, making her bleed.
When the 23-year-old clerk confronted Healy in a tape-recorded phone call heard by police, the lawyer admitted touching her after she told him to stop.
Contacted by WW, Healy noted that the law student's case was fully investigated, and it didn't go anywhere. Was that a denial? "Yes," he says. He did not respond to further requests for comment.
In April 2000, a grand jury declined to indict Healy on the law-school student's charges. Yamhill County District Attorney Brad Berry wrote, the "conduct here, although reprehensible as presented by [the clerk], would be insufficient for successful prosecution." Summers, who was not allowed by Berry to testify, told WW the fact that Healy wasn't indicted was "a serious miscarriage of justice."
As part of his probe into the Clatsop County case, Summers also contacted Healy's ex-wife in Michigan. She told the cop that in the mid-80s, Healy was shown the door from his old law firm in Salem for drilling a peep-hole from his office into the women's shower room of an exercise facility next door. The story was confirmed to WW by another source.
But in the end, just as Berry had done, Clatsop County's Marquis concluded that Healy's provable conduct with Healy's other accuser fell into a gray area between sexual abuse and workplace sexual exploitation.
Citing a lack of eyewitnesses confirming the alleged abuse in the Clatsop County case, Marquis declined to prosecute for rape or sodomy. Instead, Healy pleaded guilty in a negotiated pre-indictment deal to two misdemeanors: public indecency and private indecency. In June 2002 he was sentenced to 80 hours of community service. He performed the commmunity service in Las Vegas, where he'd moved.
Marquis forwarded the investigation to the Oregon State Bar, which issued Healy a 60-day suspension in 2003 as its discipline. Should he have been disbarred? "I don't think it would have been inappropriate," says Marquis.
A misdemeanor does not lead to automatic disbarment, which allowed Healy to resume practicing law in Oregon. But because the bar does not need a conviction to discipline a lawyer, and uses a far lower burden of proof than in a criminal case, it could have investigated further, potentially leading to a stiffer penalty.
The bar report on the case shows the bar did not do its own investigation. Its discipline considered only his misdemeanor conviction—not the other allegations.
There's also nothing to prevent him from being a public defender. Anyone who is a member of the bar in good standing and meets other qualifications can get state money to be a court-appointed defense lawyer, according to the state Office of Public Defense Services. But the state does not pay Healy directly—it contracts with a consortium of Yamhill County defense lawyers who have included Healy. Bob Suchy, who heads the consortium, did not return calls.
Marquis thought the move to Vegas meant that Healy was gone for good—until three months ago. That's when he read an article in the McMinnville News-Register in which Healy, back in Newberg and representing a drug defendant, was quoted accusing a drug informant of entrapment. So Marquis sent the bar a complaint accusing Healy of violating the bar rule on making pretrial comments that might prejudice a jury. Healy denied it, and accused Marquis of using the bar to "advance a personal agenda against another attorney."
Says Marquis, "I'm no more biased against him than I am the thousands of other people I've convicted over the years."
Meanwhile, in a final twist of fate, Marquis may wind up back in court with Healy—only on the same side. That's because Healy's former client Patrick Lee Harned, who was convicted of murder by Marquis in 2000, could appeal his conviction, claiming Healy's caliber of lawyering was hurt by sex addiction.
If that happens, Marquis, by virtue of having been the prosecutor in some of those cases, could be asked to attest to Healy's competency in court. Says Marquis, "I could wind up defending him."

further reading:
Why Criminal Defense Attorneys Hate Josh
Part I
Part III
Part IV

Tuesday, November 15, 2005

The Truth about DNA

There is a lot of talk about how DNA testing has exonerated "hundreds" of convicts. What is less often discussed is the fact that it was America's prosecutors who pioneered the use of DNA in the courtroom over the fevered objection of criminal defense lawyers who claimed it was "junk science." Now DNA is accepted as gospel.

The St. Louis prosecutors (city and county) went back and ran DNA checks on hundreds of criminal cases to see if the tests would change the ultimate conclusion.

The report which follows, from the November 14 edition of the St. Louis Post Dispatch, tells a very different story, and is representative of what has happened across America, from San Diego to Minnesota and other jurisdictions where prosecutors reopened cases because they wanted to make sure they had the RIGHT people in prison.

Review of DNA sets very few free

Monday, Nov. 14 2005   After nine hours of deliberations at the end of George Allen Jr.'s first trial in the 1982 rape and murder of Mary Bell, jurors voted 10-2 to acquit. Three months later, a different jury took five hours to reach the opposite, unanimous conclusion - Allen was guilty.

Since that first trial in April of 1983, Allen's supporters have loudly professed his innocence, saying his confession was coached and that no physical evidence linked him to the crime. Prompted by those concerns, and concerns about other cases in the pre-DNA era, St. Louis prosecutors began a review in 2003 of Allen's case and about 1,400 others to determine if DNA testing could confirm or deny guilt.

In Allen's case, it couldn't. "There is no evidence that we have found that exonerates him. Every path has been followed to its fullest extent," said St. Louis Circuit Attorney Jennifer Joyce.

Allen's case ended like most of the more than 2,100 cases reviewed by prosecutors in St. Louis and St. Louis County: Either there was nothing to test or the evidence would not confirm or deny guilt. Allen joins a legion of incarcerated men and women who have been disappointed by the DNA revolution.

Of 1,400 cases reviewed by the St. Louis Circuit Attorney's Office, only three people, all men, have been freed based on DNA testing. All of those were brought forward by lawyers, not uncovered in the review.

In five or six cases, DNA results neither confirmed nor ruled out guilt, said Assistant Circuit Attorney Ed Postawko. Results in about 12 cases are pending.

About seven people who claimed innocence were proven guilty, said Postawko, who heads the review.Only one person has been exonerated by DNA evidence in St. Louis County, also from outside the formal review. Prosecutor Robert McCulloch's office examined 700 to 900 cases from before 1991-1992, when DNA evidence became widely used.

Joyce said the numbers are not surprising. "I think people have the wrong idea that every time we look at a case and do DNA testing, it exonerates somebody," she said.

St. Charles County Prosecutor Jack Banas, Jefferson County Prosecutor Robert Wilkins, St. Clair County State's Attorney Robert Haida and a spokesman for Madison County State's Attorney Bill Mudge all said they had not done wholesale reviews but had looked at some old cases and were open to looking at others.

Wilkins said crime is different in less densely populated areas such as his, with fewer cases involving strangers. He said most of his convictions are won on eyewitness testimony or other physical evidence, with DNA sometimes as "icing on the cake."

"The worst answer ... is no answer."

The Allen case illustrates "probably the least satisfying result," Joyce said. "The worst answer ... is no answer." She is frustrated that many people don't understand the limits of the DNA review. "Our job is not to basically re-try a case that has been presented to a jury," she said.

City prosecutors and law school interns reviewed evidence and trial transcripts to whittle about 1,400 cases to around 210 with potential DNA relevance, plus 35 or 40 cases brought to the staff's attention by lawyers, Postawko said.

After "very extensive evaluations," he said, many cases were eliminated because DNA evidence had been discarded or never existed.

Barry Scheck, co-founder of The Innocence Project, which represents Allen, said there is useful biological evidence in only about 15 percent of cases.

Ted Hunt, chief trial assistant for the prosecutor in Kansas City, noted that rapists often don't leave DNA behind. And a hair or DNA material that cannot be connected with the crime will prove nothing. Hunt said the five DNA tests done in old cases in Jackson County all confirmed the defendant's guilt.

In Allen's case, seminal fluid was found at the scene that DNA testing showed was not his. But it did match Bell's live-in boyfriend. Postawko said it only proves "boyfriends and girlfriends who live together and sleep in the same bed have sex from time to time."

Convicts not excluded by DNA testing are unlikely to have their cases reversed any other way.

"There's really no relief for those people," said Susan McGraugh, an assistant clinical professor at St. Louis University's Law School and supervisor of the school's criminal defense clinic. "That's what concerns me. Because I'm certain there are people incarcerated right now on the basis of well-meaning but incorrect testimony."

As the era of testing old DNA comes to a close, McGraugh said, it is time to examine the unreliability of eyewitness testimony. "It's a lot easier to make a mistake about an identification than you would think," she said, noting that the stress of being confronted, perhaps with a gun, can warp a memory.

Of the four St. Louis area men exonerated by DNA, all had been identified by the crimes' victims.

McGraugh said she's unaware of any Missouri court that has allowed experts to challenge the reliability of witness identifications.

Just a confession

In Allen's case, there was neither physical evidence nor eyewitness testimony linking him to the rape and stabbing of Bell in her apartment in the 1000 block of Marion Street on Feb. 4, 1982.

Police picked up Allen, then 26, more than a month later because he resembled a suspect in another case. He confessed to attacking Bell, although he later claimed the admission was coached. Police denied that.

Allen could have faced a death sentence, but a juror left the panel because of his mother's death and prosecutors agreed to waive the death penalty to avoid holding a new trial.

Allen declined to be interviewed for this story.

Scheck said Allen's case merits additional investigation, but he acknowledged, "I would agree, at this point, that we've done all the DNA testing that we can do."

McGraugh, who reviewed the file for the Innocence Project, said the conviction was one of the weakest murder cases she has examined.

Believing it, she said, means believing police "just got lucky and picked the right guy off the street at the right time." She noted that Allen "kept confessing to the wrong thing, and they had to keep correcting him," she said.

Joyce said there is nothing left to do for now in the Allen case. "It's time to get this some closure."

She said there is strong evidence of Allen's guilt. "I mean, he confessed," she said. Joyce also said that prosecutor Dean Hoag, who won the conviction, said that it was impossible to coerce the details that Allen knew about Bell's death.

Joyce said that DNA exonerations are not an indictment of the justice system but a signal that it is committed to fixing mistakes. Cases like Allen's are always subject to further review.

"There's no such thing as irreparably closed," Joyce explained. "If they think of something else ... we'll re-open it."

Tuesday, November 8, 2005

Alito Is Right For the Court, Even If Bush Is Wrong

A couple months ago I spent three days in Chicago, at the fall Board of Directors meeting of the National District Attorneys Association.

Our group, which has about 7000 members who are prosecutors across America, is a highly diverse group. When I joined the board in 1997, I assumed it would be a middle-aged white guys' drinking club -- and while it's true there are a lot of middle-aged white guys, a lot of women are elected DA's and among all of us there is a remarkably broad range of political philosophies. We are a far less monolithic group than many would guess.

The current president is Paul Logli, of Rockford, Illinois. Paul is a devout Catholic and a committed Republican. I'm a Democrat and pro-choice. Yet we are good friends and share a common vision of what justice should be. We both think that we have the most morally luxurious job in the world: Our only obligation is to the truth.

So, how do we disagree strongly on subjects like abortion but fine common ground in our work?

When Harriet Miers was President Bush's candidate for Sandra O'Connor's seat on the SCOTUS, it was a pretty easy call for people of both parties. For Democrats like me she was a mediocre choice, someone with no track record of real legal accomplishment. To many of us, her only real qualification for the job was a creepy infatuation with her boss, President Bush. With a 39 percent approval rating, Bush was employing what Mike Royko called the unofficial motto of Chicago: "Where's mine?" When a man who made his name promoting Arabian horses got the top job at FEMA, should we have been surprised that someone like Meiers would end up in the chair formerly occupied by Felix Frankfurter, Robert Jackson, and Whizzer White?

Many conservatives (not necessarily my friend Paul Logli) felt cheated by Bush's choice of Miers over far more qualified conservative like Appeals Court Judges J. Michael Luttig or Janice Brown, formerly of the California Supreme Court. They figured, "Hey we elected this guy because he was going to nominate judges with core values like ours."

How many times does a sitting President get to pick not one but two judges to the SCOTUS? So why the hell give up a seat on the court to someone who thinks George Bush is the smartest guy she ever met?

Everyone was relieved when Bush withdrew Miers.

I consider myself something of a legal-political junkie but I'd never heard of Samuel Alito. I read as much as I could and was pleasantly surprised with the New York Time's profile of Alito on November 2, 2005.

This is a man who was a real trial lawyer, took on some difficult cases personally and was known to be tough on corruption as United States Attorney in New Jersey. I learned from a prosecutor in the Philadelphia District Attorney's office that Alito is no sure thing for either side. That he has voted both to strike down some death penalty sentences and to affirm others. I'm not sure what his position is on abortion, and as much as I am strongly pro-choice, I don't think it is what really matters. Litmus tests on either side are generally a bad idea.

When I ran for District Attorney the first time, 11 years ago, I was asked to come to the meeting of the county Republican central committee and answer questions along with my opponent, a man about ten years my senior who had flown fighter jets in Vietnam. In Oregon, district attorney is a non-partisan job, but I'm publicly self-identified as a Democrat so I was prepared for some interesting questions. I was not prepared for the first two questions:
What is your personal relationship with Jesus Christ?
What's your position on abortion?

My opponent went first and reassured them we was a devout Catholic who opposed abortion. I took a deep breath and answered that I did not attend church and that I was pro-choice. I went on to tell the group that if those issues defined their choice for D.A. they might as well vote for my opponent right away, but if they wanted to know my opinions on law and justice issues, I'd be happy to discuss them. We went on to talk about issues closer to the job of prosecutor.

If this had been a movie they would have gone on to endorse me. They didn't. But they also didn't endorse my opponent. I won the election with 79 percent of the vote.

I had no problem in agreeing that the NDAA should endorse the nomination of Sam Alito to the United States Supreme Court. He's clearly qualified. He's smart, he's fair, he's been vetted several times for jobs ranging from U.S. Attorney to Deputy Solicitor General to U.S. Appeals Court.

Am I sure he will vote the way I want on issues like parental notification of abortion? No. But do we really want a justice who is nominated because of a single issue? I hope not, and I hope that my fellow Democrats will save their political ammunition for a fight that is worth fighting and might possibly be won.

The NDAA's Board of Directors voted something like 90 to 1 to endorse Alito, with men and women, Republicans, Democrats, and Independents agreeing that "NDAA's endorsement reflects the organization's deep respect for Judge Alito's record on issues of criminal justice and his personal integrity. Members of the NDAA may not share all of Judge Alito's beliefs on all issues, but we feel that the nation will be well-served by his service on our nation's highest court."

Saturday, October 29, 2005

The Prosecutor and Victims' Rights

by Josh Marquis
published in Crime Victims Report, 2005

As a prosecutor for more than 20 years, I often find myself orienting new employees to the District Attorney's Office to the special duty we owe to victims of crime. In Oregon, as in many states, there is now a constitutional amendment that protects the rights of victims. Younger employees take for granted the ability of a victim to be present at trial, to be informed of plea negotiations, and to speak at sentencing.

It is not unusual for new staff to be astounded when I tell them that when I started trying cases, victims were systematically barred from courtrooms, it was rare for a prosecutor ever to discuss a plea bargain with the victims, and judges were known to tell victims to sit and down and shut up when they tried to address the court at a sentencing. The hard-fought gains that victims’ rights advocates have achieved in state legislatures, through popular referenda, and most recently in the United States Congress, should never be taken for granted.

While many politicians are only too happy to give lip service to “victims’ rights,” congressional advocates like California's Senator Diane Feinstein– a steadfast supporter of victims’ issues – are all too rare.

The resistance to codifying and thereby insuring victim’ rights comes from several fronts, not always where one might expect.

Most predictable are the criminal defense attorneys and their supporters, sometimes masquerading as victims groups, who are convinced that any additional right for victims must necessarily result in a loss of rights for defendants. They refuse to understand that extending such rights is not a zero-sum game and that it is possible to protect the rights of both suspects and victims.

Then there are others in the criminal defense bar who are simply terrified of victims becoming empowered, correctly realizing that if victims exercised their rights, more guilty people would be convicted of the crimes they committed.

There is the sheer bureaucratic inertial resistance to change. These objections come from some court staff who are afraid that victims will somehow disrupt “their" courtrooms; and from the governmental functionaries who resist providing funding to a new class of client – in this case the victimized.

Finally,and perhaps most unexpected, was the ambivalence from some prosecutors, who should have been the greatest advocates for the rights of victims. Some prosecutors have been hesitant to embrace laws that add new responsibilities – such as making sure a victim is aware of what rights the law affords them, and consulting with victims on everything from trial settings to plea bargains. A few prosecutors expressed fears that a system in which they represent the community and not just the individual victim will get turned on its head by the creation of a new bill of rights for victims. For some the concern was that victims would be independently represented in the courtroom, turning the adversary system into a three-ring circus.

Thankfully, these fears proved unfounded and the vast majority of America’s District Attorneys have now embraced victims' rights as a keystone value.

Despite some barriers, vast changes have taken placed in the American criminal justice system. While those of us advocating for a federal constitutional amendment had to settle for statutory victims' rights legislation in Congress, things are very different than they were even a decade ago. Consider how it was necessary in the aftermath of the Oklahoma City mass-murder bombing in 1995 for then-law-professor Paul Cassel to sue the federal government just to provide access for victims’ families to killer Timothy McVeigh’s trial. While federal courts may be among the slowest to fully incorporate victims rights it is not insignificant that Professor Cassel is now United States District Judge Paul Cassel, in Salt Lake City Utah.

My own state of Oregon is a case study in the evolution of victims rights. For the last eleven years I’ve been the elected District Attorney on Oregon’s north coast, but before being appointed to that job in 1994 I spent almost 10 years as a deputy district attorney in three other Oregon counties.

I’ll not soon forget that in 1985, when I helped distribute a petition to get the most basic victims' rights on the state’s ballot, there were considerable efforts made to intimidate people like me from circulating these petitions, claiming we were misusing our positions as public employees. These efforts were opposed by a group calling themselves the protectors of Oregon’s civil liberties. That group included many people who have held high elective and appointed offices in Oregon and who now embrace what are considered basic victims’ rights.

At that point we were simply asking that defense attorneys not be allowed to keep a murder victim’s parents out of view of the jury by slapping them with subpoenas -- never intending to actually call them as witnesses but using the maneuver to keep them out of the courtroom. Oregon’s Measure 10 passed by a significant margin in 1986 and, contrary to the predictions of the many distinguished legal scholars, civil liberties in Oregon did not come to a crashing halt. But a decade later many in the victims' rights movement, now joined by virtually all prosecutors, were frustrated when certain judges would deny statutory victims rights on the grounds the statutes were trumped by the constitutional protections accorded criminal defendants.

In 1996, after Oregon voters, by a margin of 59 to 41 percent, passed Measure 40, which incorporated victims' rights into the state’s constitution, the state’s Supreme Court overturned the measure on a highly technical claim in a decision entitled Armatta vs. Kitzhaber. (An interesting side-note: The lawyer who successfully challenged the victims' right law went on to monitor the war crime tribunals arising from the Serbian-Croat-Bosnian conflict and was recently quoted as being bitterly disappointed by the acquittal of a Croat commander who had been accused of a massacre in 1993).

Victims' rights advocates slogged back to the state legislature and broke down the omnibus victims law that was overturned into seven separate measures that went back to Oregon voters in 1999. The usual suspects of criminal defense attorneys and self-described civil liberties guardians argued vociferously against all the measures, even the one that simply declared that victims' rights were to be accorded the status of a constitutional protection. Despite their efforts, the most significant four of the seven measures were passed again and remain the law in Oregon to this day.

Oregon’s experience is fairly representative of national trends. After initial and often ferocious resistance, courts and lawyers have come to accept victims' rights as a reality that is here to stay. As a working prosecutor I must balance my obligation to serve the community with my legal, ethical and, most importantly, moral duties to crime victims. Like many prosecutors my office has staff specifically dedicated to keeping victims informed of the ever-changing court dates and try to prepare them for the traumas of a trial.

At the same time, we cannot allow the victims to dictate how or if we prosecute a case, the most important area being that of domestic violence. In all too many of these cases the victim wants nothing more than the dismissal of the case and in this type of case the relationship of prosecutor and victim can become difficult and contentious.

A defendant has had the right to “allocute” for the last several centuries in Anglo-American jurisprudence. Anyone who watches television knows that last thing that happens before a sentence is handed down is the judge asking the now-convicted criminal: “Is there anything you want to say before I impose sentence?” Many defendants have used the opportunity to simply dig themselves into an even deeper hole. It was only in the last 20 years that a woman who was sexually assaulted, the businessman who lost his livelihood to an embezzler, or the surviving members of a murder victim’s family had the right to speak, other than afterwards on the courthouse step.

In my experience we cannot underestimate the importance of what it means for the voice of the victim to be heard at that particular stage of a criminal proceeding. In talking to hundreds of victims over the years I have been struck by how cathartic the experience was for the overwhelming majority of victims. As someone who makes my living by talking and trying to persuade jurors or legislators with my words I am often in awe of the simple eloquence to which I have borne witness.

One of the least noticed but most significant decisions of the United States Supreme Court was the 1991 decision in Payne vs. Tennessee. Reversing years of precedent, the high court ruled that in the penalty phase of a capital case the prosecution is entitled to introduce at least some form of victim impact evidence. I was literally in the middle of a death penalty case in central Oregon when the Payne decision was handed down. I reacted with what I thought was caution by asking the victims’ family to limit their comments to describing the lives of Rod and Lois Hauser, murdered in 1987.

Not cautiously enough, as it turned out, as a few years later the Oregon Supreme Court overturned the second death sentence the killer had received, on precisely and solely the grounds that the trial court had allowed any victims' impact testimony.

Six years later I tried the case for a third penalty trial and again the victims’ family told the jurors what kind of lives their parents had led, but this time the State Supreme Court has affirmed the right of victims to speak.

Most of my experience with victim impact statements comes, like most prosecutors, in non-capital cases. Most of the victims of the murders I have prosecuted were poor and most were women who had led pretty tough lives. On more than one occasion I had to really reach out to find and bring a member of the victim’s family to the trial, but in every single case I was brought close to tears by the simple eloquence of their survivors. They almost never spoke of vengeance and rarely of what they wanted to see happen to the men who had taken their child or sister. They usually spoke about the finest qualities that almost every human being possesses.

In my office I keep the blown-up portraits of murder victims – the one living photo of the victim state law allows me to introduce into evidence. I keep them, often for years, to remind myself of why I what I have sworn to do as a prosecutor.

Very recently I gave the eulogy of my father, a college professor who died at age 84. He often despaired of my choice of profession, fearing that the pain and darkness associated with criminal prosecution would somehow darken my soul and sour me on life. I was able to assure him that it was instead the goodness and hope that I see again and again in the people who meet me at the worst times of their lives that sustains me and sends me forth again to do battle on their behalf.

TV Review: Close to Home

In a phrase: Close to Home is a complete waste of time.

Initially the show (aired Tuesdays, 10pm, CBS; and again on throwaway Saturday nights) sounded interesting....a young mother who works as a prosecutor. We read in the press materials that the actress (who looks about 18) has actually spoken to an un-named assistant DA somewhere in Indiana (where the show is supposedly set).

Things go downhill quickly when we discover that the lead character has "a perfect record" as a prosecutor She must never try any cases. Her boss is a schlump who in the cartoon world of TV law frets endlessly about what the enormous press corps of this tiny burg thinks.

The second episode features a slam against the "Weed and Seed" programs that seek to stamp out drug pushers and then put prevention programs in place. Instead we have the second lead angrily refusing to take "blood money" because she wants to give the poor drug-addled defendant "treatment instead of jail."

The Third episode is some PG-rated porn about 30-something houswives working as hookers.

Thank goodness real life in this business is far more interesting.

Tuesday, October 18, 2005

Measure 11 Brings Justice and Lower Crime Rate

by Joshua Marquis and Doug Harcleroad
printed in the Eugene Register-Guard
October 17, 2005

Citizen lobbyists Anne and Bruce Pratt struck a nerve with their unusually candid Sept. 27 guest viewpoint about their efforts to lobby the 2005 Oregon Legislature.

In a pair of responses, Arwen Bird of the Western Prison Project (Register-Guard, Oct. 3) and Portland-area state Reps. Mitch Greenlick and Chip Shields (Register-Guard, Oct. 10) wrote that a bill that would have enhanced penalties for repeat-killer drunken drivers (House Bill 2828) failed because it represented bad policy. We believe that Greenlick's and Shields' views are not shared by the vast majority of their legislative colleagues or Oregon voters.

The bill that the Pratts, whose son was killed by a drunken driver, helped write would have called for a 20-year prison sentence if it were the second time the driver had been convicted of killing one or more people with his car while drunk or high.

Unfortunately, that's not a hypothetical. In 1999, James Willie, while driving on the Sunset Highway near Seaside, high on a cocktail of illegal drugs, slammed his car into Martin Ferlitch's vehicle. Martin and his 12-year-old granddaughter, Jennifer, were killed. It wasn't the first time Willie had been convicted of killing people. In 1977, he was sentenced for causing the death of two people while drunk and served less than two years in prison.

As longtime prosecutors in Oregon, we have watched as the violent crime rate has plummeted over the last 10 years. Last year, USA Today rated each state's improvements in public health. Oregon was applauded for its reductions in violent crimes.

We believe much of that reduction can be attributed to Oregon voters passing and then reaffirming Measure 11, which ensures that those who commit the worst of violent felonies and sexual offenses against children actually go to prison, usually for six to eight years. Does anyone believe that the violent rape of a child deserves anything less than eight years in prison?

Another major reason violent crime is down is the move toward truth-in-sentencing laws which help to assure that a criminal will actually serve at least 80 percent of the sentence handed down by the judge.

To those who would have you believe Oregon has become a penal colony, it should be noted that Oregon has an incarceration rate lower than almost two-thirds of the other 49 states. Of our state tax dollar, eight cents is spent on prisons and another seven cents pays for judges, police, public defenders and a tiny slice of the budget of prosecutors' offices. (The bulk, 56 cents, pays for education.)

Crime strikes at all parts of our community and disproportionately hits our most vulnerable citizens, particularly women, children and people of color. A balanced criminal justice system needs a wide array of tools including probation, treatment and incarceration. Almost 75 percent of people who are convicted of felonies receive probationary, not prison, sentences; therefore, it is particularly important that we provide sufficient incentive for probationers to comply with treatment, sobriety and the other programs that attempt to steer them away from future crime. Without adequate jail beds at the county level or prison beds at the state level, the threat of future imprisonment often rings hollow. Criminals quickly learn there is little consequence for their misconduct.

As district attorneys, we stand to gain nothing by increasing the prison population. We don't get bigger budgets or salaries based on the number of criminals we lock up. We have advocated for a system of accountability because it is just and sensible public policy.

Criminals and criminal defendants have skillful and well-funded advocates in Arwen Bird and Chip Shields. The dead don't have as well financed a lobby, so we try to speak for them and remind our legal system that it exists to dispense justice to all citizens, not just those accused of crime.

Doug Harcleroad is Lane County district attorney.

Monday, October 17, 2005

Benton County Attorney Successfully Prosecuted

Court outburst costs attorney a $90 fine
Gazette-Times reporter
Monday, October 17, 2005 10:15 PM PDT

A member of Benton County’s consortium of court-appointed defense attorneys was found guilty Monday of a disorderly conduct violation stemming from an argument with a Corvallis police officer.

In November, John Rich had just left a pretrial hearing with a client when Corvallis police officer Phil Howrey, who had testified at the hearing, said he was going to arrest the client on a Corvallis Municipal Court warrant.

Rich had gone to the municipal court that morning to check in with the judge, who had recalled the warrant.

After Howrey told Rich he would not take his word on that, Rich yelled at Howrey in the courthouse hallway, threatened to sue him for illegally arresting his client and called Howrey a vulgar name.

Though disorderly conduct is generally considered a misdemeanor offense under Oregon law, it was reduced to a violation in this case.

A special prosecutor, Clatsop County District Attorney Joshua Marquis, argued the case for the state and a substitute judge, Erik Larson from Marion County, presided at Monday’s trial in Benton County Circuit Court.

Courthouse staff members and former Benton County Deputy District Attorney Michael Wynhausen described the minute-long confrontation between Rich and Howrey as alarming, saying they saw or heard Rich yelling at Howrey and that office staff even called a courthouse security deputy.

Wynhausen told the court he worried the altercation might turn physical and that he tried to diffuse the situation by asking Howrey to let the client go and for Rich to calm down.

Rich testified that he was angry during the incident because officer Howrey knew the warrant against his client had been cleared, but proceeded to grab his client by the arm and take him into a court office while he called to check on it.

“Mr. Wynhausen told officer Howrey that he understood the warrant had been cleared and to let it go,” Rich said. “I told officer Howrey that if he took (my client) into custody without a valid warrant, I would sue him for unlawful arrest.”

Rich said he was advocating for his client’s rights when he yelled at Howrey.

“He tried to explain to me that he was just doing his job,” Rich said. “My opinion was he was trying to exercise his authority over me. ... He was just doing it to be malicious.”

Howrey was angry at the time, Rich asserted, because he was frustrated after being questioned by Rich in court.

During Monday’s trial, attorney Russell Barnett of Eugene asked that the case against Rich be dismissed, saying there was a double standard at the courthouse. Barnett said members of the Benton County District Attorney’s Office have been known to yell in the courthouse as well but have not been charged with disorderly conduct.

“The fact that the defense was claiming some form of vindictiveness is without any merit,” Benton County District Attorney Scott Heiser said after the trial.

After reviewing police reports on Rich’s case, Heiser said his office “removed ourselves from all discretionary decision making in this case.”

It was up to Marquis to decide on a charge, if any, Heiser explained.

Judge Larson refused to dismiss the charge, but during sentencing told Rich he felt it was a “close case.”

The judge said he believed he understood what happened the day of the incident, how Rich may have felt upset and disrespected as his client “was being hauled away,” and how it might have been hard for Rich to stay in control of his emotions.

“You should have, but you didn’t,” Larson said. “That’s how you found yourself here today.”

Larson added that at some point, most everybody has gotten upset and yelled at another person.

“This has happened to all of us at some time, and you were just unlucky enough to be called to task on it,” Larson said. “It seems someone decided to make an example of you.”

He was found guilty, Larson said, because Rich’s yelling “created a risk of public inconvenience, annoyance and alarm.”

Rich was fined $90.

Friday, August 5, 2005

Public Safety Last?

by Josh Marquis
printed in The Oregonian, August 5, 2005

Despite claiming that public safety is job one, many lawmakers are avoiding their responsibility to the state's citizens to maintain the most basic public safety infrastructure.

Despite claiming that public safety is job one, many Oregon lawmakers are avoiding their responsibility to the state's citizens to maintain the most basic public safety infrastructure.

While the jail bed conflict in Multnomah County has drawn much attention, the problem is not limited to Portland. County sheriffs across Oregon are increasingly confronted with a lack of jail beds or an inability to staff existing facilities. The new Clackamas County sheriff is facing a court order as the result of financially mandated bed closures. Clatsop County's sheriff has announced he will quit trying to jam 70 prisoners into a facility built for 29. To date, Douglas, Linn and Curry counties have all backed out of participation in the state's program that supposedly funds local community corrections programs. And The Oregonian recently urged Multnomah County to consider doing the same.

All this is occurring in the face of a methamphetamine epidemic that has Oregon leading the nation in emergency room admissions for the drug that devastates lives and families. Almost everyone agrees that this epidemic needs serious attention. It is a particularly vicious and dangerous drug, and addicts rarely volunteer for treatment. But who exactly is going to deal with the epidemic if we keep slashing funding for state police, district attorneys and county sheriffs? Oregon's sheriffs have been cut so much that most of their new hires are "matrix" workers whose job it is to follow a formula to determine who to let out of jail first.

Despite these realities, urban legend still suggests that Oregon is wasting money needed for second-graders by uselessly locking up harmless nonviolent offenders. The truth is that more than 70 percent of convicted felons never go to prison -- they receive probation and must be supervised locally.

For too many decades, Oregon was stupid on crime. For decades we built no new prisons and endured a rise in crime that matched most other states. But since voters approved Measure 11 and other truth-in-sentencing reforms, violent crime has dropped more in Oregon than in any other state in the nation.

Instead of watching lawmakers stay the course, however, law enforcement officials have found themselves in an uphill battle, struggling with some state, county and city lawmakers to fund government's No. 1 responsibility -- public safety. To be clear, there have been genuine heroes in the Legislature, Democrats and Republicans: Sens. Betsy Johnson and Ted Ferrioli, Reps. Jeff Barker and Andy Olson.

But all too often lawmakers at both the state and local levels have given little more than lip service to keeping dangerous criminals locked up. As Vinita Howard said on this page in her July 27 commentary ("Who wins when legislators drive DUII bills into the ditch?"), one group that did no formal lobbying fared very well this session -- drunken drivers -- while the state police were forced to sacrifice yet more troopers for much-needed detectives.

Make no mistake: Oregon's prisons aren't full of doe-eyed first-time joy riders. More than 60 percent are in for violent offenses. But county jails and local probation are just as critical a part of the corrections continuum.

Let's get smart in our discussions about funding public safety. Accountability has been working for Oregon, but it comes with a price tag -- and it's worth every dime, both in reducing crime and reducing blood and tears.

Thursday, July 21, 2005

Marquis takes No. 2 national role

by Tom Bennett, The Daily Astorian
July 21, 2005

Clatsop County District Attorney Josh Marquis has been elected vice president of the National District Attorneys Association.

The organization is the sole national group representing all of the country’s 25,000 local prosecutors, said Marquis, who has served as Oregon’s representative to the association for the last eight years.

“I’m very thrilled to be acknowledged by my peers,” he said.

His election came at the organization’s national conference in Portland, Maine. Marquis was also selected to join the group’s seven-member executive committee.

Marquis has served as Clatsop County District Attorney since 1994, when he was appointed by Gov. Barbara Roberts to replace former district attorney Julie Leonhardt. He won election to the position later that year, and has been re-elected in 1998 and 2002. He is up for re-election next year, and announced he will run for a fourth term.

Marquis served as president of the Oregon District Attorneys Association in 2001, and was recently appointed to the Oregon Criminal Justice Commission. He frequently speaks at law-enforcement conferences around the country and has published several articles on criminal justice-related issues. He recently testified in Washington, D.C. before the House Crime and Terrorism Committee.

The NDAA lobbies in Washington on behalf of district attorneys and represents prosecutors on a variety of issues, Marquis said. Currently the organization is tackling such issues as the death penalty, DNA testing and the growing methamphetamine problem – in a recent presentation to the group, U.S. Attorney General Alberto Gonzalez acknowledged for the first time that meth is the country’s No. 1 drug problem. The organization is also pushing for loan forgiveness for new prosecutors, who often come into the field with as much as $100,000 in law school debt, he said.

Marquis said he wants the national organization to not lose sight of the needs of smaller prosecutors’ offices, which often struggle with heavy caseloads and small budgets. The average size of a district attorney’s office nationwide is just nine staff members, he said.

Marquis also announced that his office has been selected by the national association to receive a satellite network system to provide state-of-the art training to his 15 employees. The NDAA selected 50 sites across the country to receive both the system and its installation free.

“It will help us maintain a high level of continuing legal education beyond that required of all Oregon lawyers,” he said.

Marquis said his new position with the NDAA will entail very little additional time away from his job in Clatsop County. His staff will also benefit from free training through the University of South Carolina. All his trips are paid for by outside funding sources, he said.