Sunday, December 11, 2011

Kitzhaber defers all executions

Bruce Ely / The Oregonian
The public entered into a robust state-wide discussion when Governor Kitzhaber unexpectedly announced he would defer any execution while he is in office. Helen Jung, in a front-page Oregonian story, correctly quoted me and others who believe the Governor has the legal power to do so.
As upset as I am at the governor at putting his personal feelings above his oath of office, he has the plenary power of commutation, reprieve and pardon and there is pretty much nothing anyone can do about it.
Kitzhaber could have but did not commute the death sentence either of Gary Haugen or any of Oregon's 36 other death row inmates sentences. Commutations would have sentenced most to life without the possibility of parole although some, like Randy Guzek, might find themselves eligible for parole because "true life" didn't exist when they were original sentenced. That's how murderers like Robert Massie of California and Kenneth McDuff of Texas got out.

Nor did Kitzhaber pardon Haugen, which would have meant his immediate release.

One likely reason for neither commutation nor pardon is that, unlike some states, no one on Oregon's death row is a possible "innocent" and DNA has never cleared anyone on death row here. Another likely reason is the sort of people on Oregon's death row. Last week all 28 elected DA's present at the winter meeting of the Oregon District Attorneys Association endorsed an OpEd published under the names of Eric Nisley (Wasco County) and Walt Beglau (Marion County), respectively the incoming and outgoing presidents of the association. It read in part:
Look at the people who populate Oregon's death row and you'll understand why the editorial board of The Oregonian has distinguished Oregon from other states. We host Jesse Caleb Compton, who in 1997 sexually assaulted and murdered 3-year-old Tesslyn O'Cull. Conan Hale tortured and killed three young teenagers. Dayton LeRoy Rogers is a serial killer of women. All of those killers, and everyone else on death row, received excellent representation, often two or even three lawyers as well as a team of investigators, mitigation specialists and psychologists. 
As referenced in our OpEd, the Oregonian's editorial board had already expressed a similar opinion:
No one seriously argues that either of the two men Oregon has executed -- or any of the 36 men and one woman on the state's death row -- is innocent. The issue here is not forced confessions, racial disparities or incompetent defense attorneys. This is not Texas, which has killed more than 400 criminals since 1982. 
I am often painted as an “ardent supporter” of capital punishment but that would seriously mischaracterize my position. Any thinking person, particularly someone like me, who is actually involved in making these decisions -- and on rare occasions advocating that a particular killer be put to death -- should be ambivalent and have very mixed feelings. Most of us who are retentionists are much less convinced of our absolute moral certainty than the abolitionists who oppose the death penalty.

No reasonable person wants to see another person die -- whether at the hands of the police, in a war, and particularly not in the most arbitrary way -- in what Prof. Cass Sunsetin calls "the realm of homicide" which takes over 10,000 victims a year. We all strive for a system that comes as close as possible -- better than we are doing now -- to ensuring those that kill once will not do it again. 

Sunday, November 13, 2011

This is not a "clerical error". But what is it?

James Willie today. The picture links to the Channel 2 story.
Channel 2 reporter Dan Tilkin did a public service with his story about the outrage over a "clerical error" that might let a four-time killer out of prison more than three years earlier than the judge ordered. But the judge didn't make the "clerical error," as Channel 2 has reported. The Department of Corrections (DOC) did.

On Sunday, July 18, 1999, Martin and Angela Ferlitsch drove their granddaughter Jennifer to the beach.  As they neared the coast their car was met by James Willie. Head on. Martin and Jennifer were killed instantly in the crash. Angela was severely injured but survived. 

James Willie was high on cocaine and alcohol, and not for the first time. He had already served two years in prison for killing his wife and a friend while loaded.

The judge in the second deadly case ordered Willie to serve, by plea agreement, just over 15 years in prison. Here is her order, dated January 11, 2000:
IT IS THE JUDGMENT OF THIS COURT that the defendant is convicted of Count 4, Manslaughter In The Second Degree and is sentenced to the Legal and Physical Custody of the Oregon Department of Corrections for a period of 75 months. 
IT IS FURTHER ORDERED that the defendant is convicted of Count 5, Manslaughter in The Second Degree and is sentenced to the Legal and Physical Custody of the Oregon Department of Corrections for a period of 75 months, to be served consecutive to Count 4. 
IT IS FURTHER ORDERED that the defendant is convicted of Count 3, Assault in The Second Degree and is sentenced to the Legal and Physical Custody of the Oregon Department of Corrections for a period of 70 months. 40 months are consecutive to Count 4 and 30 months are concurrent with Counts 4 and 5. 
The Defendant shall receive credit for time served. 
The term of post prison supervision is 36 months.
The judge's orders are prepared by the court and then sent to my office. We review the orders and if we think they are unclear we can ask that they be amended. There is nothing unclear about this order. Willie was to serve 75 months for killing Martin Ferlitsch, 75 months for killing Jennifer Ferlitsch, and 40 more months for severely injuring Angela Ferlitsch. 

Let's do the math. Willie was sentenced on January 11, 2000. He had been in jail since July 18, 1999, so his "time served" was 6 months minus about 7 days. The judge ordered him to serve 190 months minus those 6 months = 184 months = 15 years and 4 months. Willies' release date would be around May 11, 2015. 

On October 17th of this year my office received a list including about a dozen inmates the DOC plans on letting loose in the next few months.  One name was James Willie, with a  release date of January 2012.  The named and the date jumped at me. I remember the case very well, including the sentencing. The plea bargain I offered under Measure 11 was that Willie had to serve at least 15 more years from the date of sentencing before he could be eligible for release.

The DOC has so far not responded to my November 1 letter explaining the error. The DOC has refused to answer KATU's questions on camera. The DOC apparently has not checked the original proceedings. I have my suspicions about why.

People who have been affected by the James Willies of the world understand the need for truth in sentencing and the reasons for Measure 11. Oregon voters in general understand. A growing chorus of "experts" think they know better.

They don't.

[Part 1 of 2]

Monday, November 7, 2011

Truth in publishing

Letter to the Editor
Medford Mail Tribune

[reposted from Sunday, October 30, to reflect the OpEd as published in the November 7, 2011 Mail Tribune]

Your editorial of Oct. 23 started out with a serious misstatement and went downhill from there.
In your comments praising the Public Safety Commission, which recently met in Ashland, you advised that "Oregonians — especially those who support the state's mandatory minimum sentencing laws such as Measure 11 and Measure 57..." would do well to listen to a Texas state representative who was given the lion's share of the agenda at the Ashland meeting.
With one rare exception, Measure 57 has nothing to do with mandatory minimums. The only part of that law — a compromise crafted by legislators who were reacting to a much harsher alternative Measure 61 — is a mandatory minimum for the rare drug dealer found with an excess of a pound of certain hard drugs — heroin and methamphetamine among them. Contrary to the urban legends about sentencing in Oregon, less than 10 percent of those in Oregon's prisons are there for drug offenses, and more than 75 percent of convicted felons do not go to prison.
You did note that Oregon has been a leader in innovative approaches. Both Jackson and Clatsop County (where I am in my fifth term as district attorney) have drug courts in which the DA fundamentally turns over the prosecution of many drug offenders to a drug court judge who acts as a high-intensity monitor in cooperation with probation officers. One reason is that sentencing guidelines, which regulate all but Measure 11 crimes (which involve only the most violet felonies and most serious sex offenses), dramatically limit a judge's ability to go higher than 20 to 60 days in jail for a felony, often even repeat felony convictions.
Measure 57 was almost immediately suspended by the Legislature, which also increased so-called "good time" from 20 to 30 percent. That makes it very hard to claim we have truth in sentencing when trying to explain to a victim that a 30-month sentence for someone with 5 DUIIs in the last 10 years really only means 21 months.
Oregon is approximately 30th in per capita incarceration in America, and our sentences are significantly lower than most states and most definitely far lower than sentences in Texas.
To caricature Oregonians who want truth in sentencing as "lock 'em up and throw away the key" as you did does little to advance the debate over whether it is necessary to disassemble a justice system in Oregon that has seen dramatic decreases in crime, particularly violent crime.
While violent crime has gone down nationwide, nowhere in America has it fallen as fast and as far as in Oregon. About five years ago, USA Today reported a study that examined positive trends in public health. Some states reported marked decreases in teen pregnancy, others a lessening of infant mortality. But in Oregon, they considered violent crime a public health issue and lauded Oregon for bringing violent crime down more than 40 percent in the preceding years, which not by accident coincided with the enactment of Measure 11.
The most serious sentences that Measure 11 hands down for a crime that does not involve killing another person is rape in the first degree. The Measure 11 sentence is eight years. Is there anyone who thinks that the forcible rape of a woman or a child deserves anything less than eight years in prison?
What is missing in the "message" of the Criminal Justice Commission is a failure to listen to Oregonians — who are not as knee-jerk or simplistic as they are painted.
Truth in sentencing and the acknowledgment that victims have a legitimate role in the justice system came as the result of a long series of initiatives, starting with Measure 10 in 1986 all the way to Measure 73 in 2010. These initiatives are just as much reforms as the protections for the environment or Oregonians' insistence that they should decide when they die, not the U.S. Department of Justice.
There are three major legs of discretionary spending in the state budget —- education at roughly 57 cents, social services at about 26 cents and public safety at about 15 cents of every dollar — which ranges from more than $200 million for public defenders, $10 million for district attorneys and the largest share for the Department of Corrections.
Yet when looking at either benchmarks or public satisfaction, one cannot say we are all that successful at education (despite the best efforts of many dedicated teachers) or that we are doing such a great job at protecting at-risk children (again despite what are often the best of intentions), but the smallest area of state discretionary spending has yielded a state that is far safer than it was a quarter of a century ago, and yet that is where there is pressure to give up and run back the clock?
Joshua Marquis has been the elected district attorney of Clatsop County since 1994. In 2001, he served as president of the Oregon District Attorneys Association and from 2005-2009 was a member of the Oregon Criminal Justice Commission. He write and speaks across the country on criminal justice issues and has leadership roles at both the National District Attorneys Association and the American Bar Association. The opinions expressed here are his and not necessarily shared by these organizations.

NB: Pamela Fitzsimmons makes complementary points in an insightful post, "Getting Squishy on Crime."

Tuesday, August 30, 2011

Who can you trust?

In a recent decision the New Jersey State Supreme Court established rules that make it much more difficult for criminal trial jurors to hear eyewitness evidence. Their theory is that eyewitness testimony is frequently if not usually seriously flawed. The New York Times predictably wrote an enthusiastic editorial scolding the Roberts court to listen carefully and presumably follow suit.

What is disconcerting for those of us who are practitioners, those of us who stand before juries and submit witnesses and evidence for juries to evaluate, is that the defense bar and the media are telling jurors -- you -- that you can't trust eyewitnesses. That you, the juror, cannot reasonably evaluate whether a witness really saw what the witnesses says she saw. This despite a jury instruction - in Oregon and virtually every jurisdiction -- that jurors should evaluate the bias, interest and motive of each witness, what the witness might have to gain or lose, and whether the witness remembered correctly what she saw and then in fact accurately communicated it.

The "experts" -- usually law professors and defense attorneys -- are also telling jurors to be very suspicious of confessions -- even if they are video-taped. Expert witnesses for the defense, like the recently-released West Memphis Three, tell juries that police regularly coerce false confessions from innocent defendants, so even if a jury hears a defendant say "I did it!", the jury should view that confession with distrust. Again, jury instructions already tell jurors to view statements allegedly made by the defendant with caution and warn jurors that the person reporting the statement made have deliberately or inadvertently changed the meaning.
The media and defense attorneys are using a questionable "study" -- more of a suggested set of policies than an actual study -- that arose out of a National Academy of Sciences report. Jurors -- you -- are being told to be particularly suspicious of "flawed forensics." The same study cites a handful -- as in less than six cases -- of actual forensic misconduct, where people held themselves out as forensic scientists when they were not.

In a recent column for CNN, commentator Jeffrey Toobin explained why the prosecutors of Dominque Stauss-Kahn were not merely bound by what they thought was true, but by what they could prove. He went on to point out accurately that in our system we do not look towards criminal defense attorneys to tell us what really happened. Their sole job is to challenge prosecutors, whether the DA has the wrong person or, far more likely, when the accused did exactly what he is accused of doing.

But we seem to be moving towards a new urban mythology that says that the only party in the justice system that we can count on to look after the truth, to safeguard the rights of all -- not just the accused -- is the criminal defense attorney. Who would you call if a member of your family was savagely attacked? Some might say a good lawyer. But the natural instinct, with very good reason, is to call the police and hope you get a good prosecutor on the case.

After Casey Anthony was acquitted there was a wave of commentary that seemed to imply that the only way we can ever be sure the laws are really working is for a defendant to be found "not guilty," even more so if it appears from the outside that the defendant may in fact have beat a legitimate charge.

The Constitution works when it accords due process to the defendant and when it protects the community. That is why so many states have written victims' rights into their state constitutions, and why the only people speaking for the dead or maimed are likely to be the people sitting on the prosecutor's side of the table.

Wednesday, June 8, 2011

Guns v. Butter again

Does it really make sense to cut funding for alcohol and drug treatment and cognitive programs proven to reduce repeat criminal behavior while spending more on longer sentences for property crimes already at a historic low across the state? -- Oregonian Editorial Board, "Locking in Prison Spending," June 7, 2011
The Oregonian Editorial Board is totally missing the boat on this and is buying into the "guns or butter" fallacy that our choice is either to properly educate kids or not lock up someone who racked up their fourth DUII in ten years, which is what Measure 73 does. (The sentence, which was supposed to be 13 months, is now likely to be 90 days in jail.)

We spend relatively very little on public safety in Oregon - less than 15% of the General Fund -- compared to almost 60% for education. Oregon is in the bottom third of US states in the rate of incarceration. Less than 75% of convicted felons go to prison and when they do the average sentence is less than 4 years.
The Oregonian gives Kevin Mannix too much credit. He wrote Measure 73 but despite the opposition of the Oregonian and both candidates for Governor, by an almost 2 to 1 margin Oregon voters approved making a fourth DUII (instead of a fifth) within 10 years a felony and increasing sentences for what was expected to be about a dozen repeat violent sex offenders. The 2008 Voters Pamphlet claimed that Measure 57 (passed by over 60% as a compromise measure to Mannix's Measure 61 in 2008) would cost $70 million a year and it ended up costing less than $12 million.

And the claim in this editorial that "the measure establish[ed] longer mandatory sentences for property offenses" is simply wrong. There is only one mandatory sentence in Measure 57 -- for dealing in excess of a pound of meth or heroin. All the other sentences are "presumptive" -- that is, suggested sentences which judges can ignore if they choose. The law was written to counteract Mannix's much more draconian Measure 61 and sold as a fair and reasonable alternative -- and then promptly shut down after barely a year as "far too expensive."

Without Measure 57 (which is currently suspended) a judge cannot send someone with "only" one previous felony to prison -- at all -- for, say, stealing and vandalizing a $25,000 statute. That is not a hypothetical. Marcus Bologna, with a felony burglary conviction, was convicted of chopping up a statute of Sacajawea and the judge could not give him more than 20 days in jail although on paper the charge for which he was convicted - Aggravated Theft - carries a theoretical sentence of 10 years in prison.

And the Oregonian now wants the legislature to tell the voters -- again -- that it knows better and that crime being at an all-time low has nothing to do with the fact we are finally locking up the one-half of one percent of Oregonians who victimize the rest of the state. Yes, one-half of one percent is the total of youths locked up in Oregon Youth Authority (where half the "residents" are 18 or older plus the adults in the Department of Corrections.

Don't stop treatment programs. Augment them with ones that are not merely trendy and "evidence-based" but with programs that actually stand up to the test of time and common sense, and put those programs into prisons where inmates can't miss three out of four meetings, as they too often do when they are probation. The counties are tasked with treatment and probation supervision for the 75 percent of felons who don't go to prison, and the state doesn't give the counties enough money to do the jobs. The state pays virtually nothing for the counties to supervise and treat the even greater number of misdemeanor offenders who "just" commit domestic violence or have "only" three DUII convictions. We ignore their criminality at the peril of the women they beat, the other drivers on the road, and ultimately the offenders themselves who are rarely made to face real consequences.

Measure 73 was supposed to repay counties that locked up a felony DUII driver for his fourth DUII in ten years, but now apparently the state wants to bail on that promise. The Oregonian asks who should be let loose, a repeat DUII offender or a domestic violence defendant.

How about neither. How about stepping up and recognizing that a fair and just system cannot be ensured on an extreme budget plan; and that if we want to replicate the stunning success of reducing violent crime, we need to make sure consequences are real and relatively soon. Many studies have shown that it is the swiftness and certainty of consequences more than the severity that truly dissuades and prevents criminal re-offending.

Every day at 1:15 pm I appear in court and recommend the release of repeat felons because the state doesn't give the county any money to run its jail. Who is more dangerous, the meth dealer or the repeat wife beater? I usually opt to keep the latter in jail, but it is a lousy choice. I could ask that they all be locked up, but they'd be released under a "matrix" system many counties use to limit their liability.

If the Oregonian and some legislators keep on saying they are smarter than the voters and that all we need is good group hug, then don't be surprised if even tougher and more expensive ballot measures are passed. We entrust important decisions about individual guilt to twelve ordinary citizens. Legislators might better listen to the voters. And let's give credit to the lawmakers who understand the basic tenets of democracy instead of chiding them for not overturning the will of the people.

Tuesday, April 19, 2011

John Kroger's administration

John Kroger's administration: Holding our public officials to a higher standard

Guest column published Monday, April 18, 2011
by Joshua Marquis and Steve Atchison

Guest columnist Jack Roberts usually gets it right, but his attack on Attorney General John Kroger misses the point by a mile.

Roberts claims that the increased prosecution (400 percent) of misconduct cases under Kroger's administration has been manufactured to pave Kroger's way to higher office. Ambition in statewide office is not exactly uncommon, although the last attorney general to seek higher office was Dave Frohnmayer, who had the support of every elected district attorney in Oregon when he ran for governor in 1990 (and lost).

Kroger faces re-election as attorney general next year. One reason he got so much support from elected DAs in 2008 is that he is a career prosecutor, not a career politician, and the first such to run for Oregon attorney general in living memory. That brings a different, less reverential attitude to the job, an important attribute for handling a portfolio that runs from consumer protection to monitoring charities to organized crime, and not infrequently to picking up cases for local prosecutors who have a conflict or simply lack the resources to take on a particularly complex financial investigation.

Investigations do not always lead to prosecution, nor should they. Several of Kroger's successes have resulted in officials forfeiting their jobs and pay after they were caught bending if not breaking the law. A deputy district attorney in Newport used his position to try to get his child-support clients to engage in sexual activities with him; he was prosecuted. The mayor of West Linn was caught lying; Kroger's office went after her -- and won.

Kroger's strong belief in transparency has meant the press and public have been able to read the investigation documents and decide for themselves, even when a case has not led to a prosecution. There has been some criticism of this practice, but the facts are put out there for everyone to see. The easy thing for a prosecutor to do -- and particularly for the attorney general -- is to pass on a case and figure that the hassle some public employee had to endure at the hands of a newspaper or maybe even the Ethics Commission is enough. That's not holding people accountable; and the Ethics Commission cannot levy criminal penalties. The people's lawyer is ultimately the attorney general.

As local prosecutors we are accountable to our communities both through elections and the annual budget process. The attorney general likewise faces election every four years and must convince the Legislature to fund his budget.

As prosecutors who almost never seek any other office, we can tell you the surest way not to make friends in important places is to aggressively pursue cases where powerful or well-known people may be involved. Kroger is not part of the old-boys' club. He is an Oregonian by choice, having bicycled out here a decade ago after working as a federal prosecutor in New York, and that may make some people nervous.

Oregon is not New Jersey or Illinois, thank goodness, but we are not as pure as we might like to think. Kroger has brought in top prosecutors from the place where 98 percent of criminal prosecution is done -- local district attorneys' offices -- and he has been comforting the afflicted and afflicting the comforted.

As prosecutors for the people, we believe that Oregonians are in fact better protected with John Kroger as attorney general. Perhaps a better title for Jack Roberts' commentary would have been: "What's wrong with holding those in public office to a higher standard."

Joshua Marquis is Clatsop County district attorney. Steve Atchison is Columbia County district attorney.

click here for the column as printed in The Oregonian

Thursday, March 31, 2011

Fox 12: Facebook Changing Justice System

Fox 12 has done a report on Facebook and how it is being used by the justice system. Portland criminal defense attorney John Henry Hingson and I were interviewed. Here are some excerpts from their report. Click on the photo or here for the full report.

Clatsop County Courtroom #1
 Marquis: The social media, particularly Facebook, have opened up a whole new area. It's rarely a smoking gun kind of thing where the person says, 'I think all prosecutors are stinkers' or 'I don't think the death penalty is right,' or something like that. It's going to be more subtle.  It may be information that the juror doesn't want to disclose or that would be awkward to talk about.  If I were to go on Facebook and find out that a juror is Friends with ten people that we're constantly prosecuting, that would be a problem.

Hingson: It gives you a more in-depth feel for who a person is. What their interests are, possible biases, prejudices maybe. Their likes, dislikes.

Marquis: If you google my name, probably 10 to 15 percent are horrible, dreadful things that are said anonymously about me.

Hingson: A lot of people put things on Facebook because they just want to do it. Sometimes they're totally unjust. Sometimes it's very, very revealing as to who they are about a human being. I want to know as much about that person as I can so that I can make an intelligent decision as to whether or not to accept that person as a juror on a jury. You have knowingly exposed to the public what you have said, done or taken pictures of, and there is no invasion of privacy there whatsoever.

But would either of us Friend a prospective juror?
Marquis: Absolutely not. That would cross the line into intruding into someone's privacy. That's going too far.
Hingson: I would stay away from that like Count Dracula stays away from the sunshine. No way, no contact.

Monday, February 21, 2011

WSJ on Jury Selection and Social Networking

Searching for Details Online, Lawyers Facebook the Jury
Attorneys Seek Cues on Potential Jurors in Networking Sites
Leah Nash for the Wall Street Journal.
Josh Marquis has used Facebook in his job as
district attorney in Clatsop County, Ore.

Facebook is increasingly being used in courts to decide who is—and who isn't—suitable to serve on a jury, the latest way in which the social-networking site is altering the U.S. court system.

Prosecution and defense lawyers are scouring the site for personal details about members of the jury pool that could signal which side they might sympathize with during a trial. They consider what potential jurors watch on television, their interests and hobbies, and how religious they are.

Josh Marquis, district attorney of Clatsop County in Oregon, did background searches on Facebook to help pick a jury for a penalty trial last summer to determine if a convicted murderer should get the death penalty. He was looking for clues on how potential jurors might feel about the defendant, a man who killed a couple as a teenager in 1988. The jury imposed the death penalty.

Jury consultant Amber Yearwood in San Francisco found that one potential juror in a product-liability case last year held strident opinions on a host of issues, and dispensed unsolicited medical and sex advice. "Often juries offer opinionated people like that the perfect opportunity to wield their influence," said Ms. Yearwood. The prospective juror was bounced.

Some legal experts oppose this growing practice of scouring social-media sites, arguing that the traditional jury-selection process, which involves lawyers questioning prospective jurors, provides more valuable information than out-of-context online comments.

"I don't think we should abandon that system in favor of Internet snooping," said Jason Schultz, co-director of the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley, law school. "There are a number people who post who they want to be, as opposed to who they are."

Some appellate courts have upheld lawyers' rights to research jurors online, including one in New Jersey that ruled last year that a lower-court judge erred by prohibiting a plaintiffs' attorney from using the Internet in the courtroom. The court wrote: The fact that the plaintiffs' lawyer "had the foresight to bring his laptop computer to court and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of 'fairness' or maintaining a 'level playing field.' "

Jury selection is not the only way in which social media are altering the nation's courts. Divorce lawyers have used information in social-media posts to extract higher alimony payments from indiscreet spouses, experts and lawyers report. And in some juvenile courts, judges considered what defendants wrote online to help determine whether they were remorseful.

Using Facebook and other social media such as MySpace and blogs are particularly appealing during jury selection because lawyers have limited time to ask questions. Social-networking sites often contain candid, personal information generated directly by the user. "These days, it's the place where people voice their opinions," said jury consultant Art Patterson.

Armando Villalobos, the district attorney of Cameron County, Brownsville, Texas, last year equipped his prosecutors with iPads to scan the Web during jury selection.

He acknowledged that they sometimes dug up only the unprotected tidbits that Facebook users share with everyone, such as their alma mater or favorite band.

Many people, he said, limit access to more telling details to those they have "friended." (It's unclear, for example, what his prosecutors would glean from Mr. Villalobos's own Facebook page, without friending him: It shows he is married and a fan of the TV show "Spartacus.")

Mr. Villalobos is considering a method to get behind the site's private wall to learn more. One option: granting members of the jury pool free access to the court's wi-fi network in exchange for temporarily "friending" his office.

Some citizens in Brownsville are apprehensive about lawyers rummaging through their online lives. "It feels as if they are tapping into our personal lives," said Lazaro Leal in an interview conducted via Facebook. Legal teams aren't convinced by that reasoning.

David Cannon, a Los Angeles-based trial consultant, discovered on blogs that a potential juror in a personal-injury case had made extensive attempts to contact extraterrestrials. He recommended that his clients, who were representing the defendants, not select her. "It just showed an instability," he said.

Paul Kiesel, a plaintiffs' lawyer in Beverly Hills, Calif., said his firm ran searches of social-networking sites during the jury-selection process in a recent sex-abuse case involving a Catholic priest. The case was settled, but Mr. Kiesel said the information would have proved invaluable.

"We could glean whether someone was identified with a religion, and get a sense of how devout they seemed to be," he said. "It's a waterfall of information, compared to the pinhole view you used to get."

Mr. Marquis, the Oregon DA, said that even small details, like a person's favorite show, could say something about them. A predilection for crime shows, such as "CSI: Crime Scene Investigation," tells Mr. Marquis that the prospective juror might have unrealistic expectations that DNA evidence could be obtained from every crime scene.

"It's way more complicated and expensive than it is on TV," he said.

read the piece in the WSJ here

Sunday, February 13, 2011

Astoria's culture of alcoholism

Editor's Notebook:
Astoria's culture of alcoholism nurtures our Municipal Court
by Steve Forrester
Daily Astorian
published Friday, February 11, 2011

‘She is adamantly opposed to any assistance'

To Whom It May Concern:

My name is Nicole Pedersen, and I am the daughter of Janell Voeller. I'm contacting you in reference to her pending DUII cases.

It has come to my attention that Mr. Marquis is attempting to get her Municipal case tried in a court of record, and that her cases in particular may be of significant interest to the DA's office. I'm writing to inform you of the family's support.

My mother does this repeatedly, and has been an alcoholic for well over a decade. There is nothing we as a family have been able to do to curtail her drinking or get her in to a rehab facility. There was an intervention a few years back to no avail.

In short, I'm offering any assistance you deem appropriate. If there's any information I can provide you, I would be happy to do so. If/when it comes time for sentencing I would be pleased to address the judge and explain my concern for repeat offenses. Without treatment, she will certainly continue to offend, and the only way to get her into a rehabilitation program is by a court order. She is adamantly opposed to any assistance.

Further, I've heard that the second case, the County offense, may either fail or be thrown out due to some sort of sampling mistake. I don't know if it helps, but there is a credible witness to the exceptionally erratic driving on Highway 30 that night. An ambulance from Pacific County was travelling eastbound on Highway 30 while he witnessed the vehicle which was travelling westbound not only in the eastbound lane, but in the furthest eastbound lane (this occurred in the dual lane portion of the highway west of Koppisch road). The ambulance driver had to move his vehicle south of the fog line in order to avoid hitting it. He then met an officer on the road who did pull the vehicle over. If need be, I can provide you with the EMT's name. Again, I don't know if it's of value, but I would like to see her be held responsible for her actions, and prevent her from injuring anyone.
Thank you for your assistance,
Nicole Pedersen

The extraordinary letter on this page, written by Nicole Pedersen, stems from this young woman's attempt to cope with an alcoholic mother who was Janell Voeller.

Pedersen sent this letter electronically to the Clatsop County District Attorney's general mailbox on Aug. 12, 2010. She authorized its publication.

Voeller's case was a poster child for what's wrong with the Astoria Municipal Court. The Voeller case stands next to those of Stephen Moore, Sara Leloff and David Lee Gonzalez. In all of those cases, Astoria's court was more inclined to dismiss defendants than it was determined to prosecute them vigorously - and in the case of Moore - to the letter of the law.

The Voeller case is especially significant, for two reasons. It is recent and it depicts a new city DUII prosecutor who has quickly adopted the culture of enabling that shows itself in the Municipal Court cases of Moore et al.

In November 2009, Voeller crashed her car. The arresting officer believed she was on some form of medication. Because the city rarely prosecuted DUII drug cases, the Astoria officer charged Voeller with the crime of reckless driving. She was fined $109, given no probation, treatment or follow up.

In July 2010, the Astoria Police Department arrested Voeller. She blew .10 on the breathalyzer. (the legal threshold for DUII is .08) She was released from jail, drove away and was arrested again for DUII by the Sheriff's Office at 12:30 a.m.

Seeing two DUII arrests on the same day for the same defendant, District Attorney Josh Marquis sought to join the cases. In response, City Prosecutor Mary Ann Murk responded with a refusal to cooperate. When Marquis subsequently wrote a longer request, Murk offered no response, but subsequently told the Astoria City Council Oct. 4 that, "I don't work for the D.A."

Hmmm. Does Murk not work for the rest of us - a citizenry that would like effective prosecution of DUII cases?

On Sept. 17, Voeller died in her living room as a result of a drug overdose and alcohol.

Alcoholism and drunken driving are linked in the concept of diversion, which is offered by the courts to first-time DUII offenders. It is an opportunity to recognize a problem and seek treatment. But when diversion became common throughout the nation, and when Mothers Against Drunk Driving caused states to stiffen their penalties for drunken driving, a defense lawyer in Florida developed a new set of tactics for other defense lawyers. In most American towns, there is a lawyer who specializes in DUII defense, and he works from that playbook.

In essence, the post-MADD defense against drunken driving involves having evidence suppressed and getting cases dismissed. Astoria's Municipal Court is essential to this strategy, for two reasons. It is a relative pushover for a skilled DUII defense lawyer, and it is not a court of record.

If a community wants a fair contest in the DUII cases that enter its courts, there must be prosecutors who can play at the same professional level as the defense specialist. You don't send a part-time batter to the plate against a Major League pitcher, but that effectively is what we do in Astoria Municipal Court. That inequity is further confused by having a judge who is also a criminal defense lawyer.

By assenting to this unfair fight, the Astoria City Council is enabling drunken driving. That may be seen in the Moore, Leloff and Gonzalez cases, and also in the Voeller case. To learn more about these cases see

An alcoholism treatment specialist would say that response to treatment or the shock of a DUII conviction is neither predictable nor consistent. In other words, some alcoholics take a while to get it. Some never get it. It was Astoria Mayor Willis Van Dusen's third DUII adjudication that convinced him to seek help at the Betty Ford Clinic. David Lee Gonzales, on the other hand, had 10 DUIIs under his belt when this newspaper discovered his three dismissals in Astoria Municipal Court.

Van Dusen is central to the Municipal Court discussion, because he is its most dogged defender. His journey to sobriety is at odds with his defense of this court which politely may be called flawed and more correctly called corrupt.

Astoria has a culture of alcoholism. That is where this history of lax prosecution came from. Isn't it time to end this deadly pathology of official enabling?

- S.A.F.

click here for the editorial at the Daily Astorian website

Tuesday, February 1, 2011

Editorial by The Daily Astorian

All Astorians own this court
And we own its enabling of drunken driving.
editorial by The Daily Astorian

In movies about small town justice in the South, one clich├ęd element is the judge who also owns the insurance business or the saloon. The movie’s “aha” moment occurs when the defendant recognizes that the man whom he offended in the bar is now his judge, sitting in robes before him.

We have an element of that Southern movie plot in Astoria. It is the essence of why the Astoria Municipal Court has generated some pitiful adjudication of drunken driving cases over the decade this newspaper has been tracking such decisions. In a Jan. 20 editorial page column (“The rule of law in Astoria”) Clatsop County District Attorney Josh Marquis isolated the malfunction that occurs when a criminal defense attorney plays the role of judge or prosecutor. Astoria Municipal Court has both those elements of role reversal going on every day it is in session.

Now City Hall has responded to Marquis’ column with an open letter from the Astoria City Council, which Chelsea Gorrow reported in Monday’s edition. None of the deliberation behind this letter occurred in open, public session. Mayor Willis Van Dusen’s dialogue with councillors occurred in e-mail, which the newspaper has obtained through a public records request.

Councillor Karen Mellin – whose candidacy in the November election opposed DUIIs being handled in Municipal Court – is now part of the team that wants to preserve DUII prosecution. Mellin’s price was acknowledgement that two cases “were not handled appropriately.”

The City Council’s open letter and the e-mails behind it are useful as a window into the Council’s group-think. But in its attempt to justify running a court that handles drunken driving cases, the Council – not surprisingly – leaves out a lot that has come to light in the past decade.

Our court has coughed up a number of jaw-droppers since the Stephen Moore case in 2002. That particular case was moved to Clatsop County Circuit Court only after The Daily Astorian published details of Moore’s adjudication and urged the city attorney to take action. There was the Sarah Leloff case in 2005 and a collection of David Lee Gonzalez cases spanning 2009-2010. You may read stories about these cases at

During this entire period, the City Council has not expressed the slightest doubt about the competency of the Municipal Court to adjudicate DUII cases. Nor did the Council pause when its Municipal Court judge, Kris Kaino, was cited by an Oregon State Police fish and game officer. That 2001 incident and Kaino’s intemperate response caused the officer to file an official complaint with the state Judicial Fitness Commission. The Oregon Supreme Court subsequently ruled that municipal judges are exempt from state judicial oversight, so the claim was dropped.

In essence, the Astoria City Council has looked the other way for 10 years. Recent history tells us that it is only a matter of time before the next DUII poster child arrives.

The proposal to move all Astoria drunken driving cases to Clatsop County Circuit Court is not rocket science. It is logical, and it would restore an element of judicial and prosecutorial credibility.

We do not expect the City Council to make that decision until it is mortally embarrassed or forced by a higher legal power. The mayor especially is determined to maintain this anachronism.

All Astorians own this court. We own its enabling of drunken driving. And we share in the likely prospect that one of the court’s “mistakes” will kill someone while at the wheel of their vehicle.

by The Daily Astorian
posted on The Daily Astorian website Tuesday, February 1, 2011, 10:45AM
click here for the Daily Astorian editorial page

Thursday, January 20, 2011

The rule of law in Astoria

Guest column, published Thursday, Janaury 20, 2011

Over the past few years I have become increasingly concerned that drunk driving cases are not being handled fairly and consistently by Astoria's Municipal Court.

Officers from Astoria Police Department have frequently complained that the tickets they write never come to court. The Daily Astorian has documented several cases in which DUIIs have been dismissed for no apparent reason and/or offenders have been offered extraordinarily generous plea bargains that would never be made by the District Attorney’s office.

In March, Clatsop County Sheriff Tom Bergin and I met with Mayor Willis Van Dusen, then-city attorney Hal Snow and then-Councilman Blair Henningsgaard to explain why, at a City Council meeting in April, I would offer to pick up all of Astoria’s approximately 80 DUIIs a year and move them into Circuit Court. At the April meeting, the Council agreed to listen to my proposal.

In June I began inquiring about the Council’s thoughts and when I could get no response, I returned to a regular public meeting in July. There I was surprised to be received with what could only be called outright hostility. Henningsgaard (now the city attorney) claimed that my inquiries were part of a “personal vendetta.” More moderately, Councilman Russ Warr requested that I prepare a report with statistics to back up my claim that something is amiss in Astoria, the only city in Clatsop County that does not send its DUIIs to Circuit Court.

During summer break my office provides mentoring and practical work experience to an Oregon law school student. Warr’s request was a substantial exercise for Sarah Shepherd. She spent the next several weeks attending Municipal Court sessions and gathering statistics, which was a much harder assignment than you might think.

The city has resisted suggestions that Municipal Court be a "court of record" which would maintain thorough and permanent records that could be relied on by investigators and other courts. Their record-keeping is incomplete, at best, often leaving questions about what exactly happened.


The conduct of Muni Court is troubling even without a report’s details. The judge is a full-time criminal defense attorney. So is the prosecutor. In other words, on Mondays the Muni Court judge and the city prosecutor present and judge cases brought by Astoria police officers. The rest of the week they are in Circuit Court cross-examining those same police officers, attempting to cast doubt on the officers' judgment and win relief for their client, who is often enough in Circuit Court on a charge being led by the Astoria Police Department.

I can find no other city where the part-time city judge is also a defense attorney involving the same police department.

Some Astoria city officials have claimed that Muni Court provides an extra level of protection because a defendant who is convicted can ask for a whole new trial in Circuit Court (except there hasn’t been an appeal in more than 15 years). Either the Muni Court judge has never made a mistake or the defense wins all the time.

In short, in Muni Court there is no review. There are none of the checks and balances that are the hallmark of Circuit Court, operating just two blocks away in the county courthouse where the judges (and the prosecutor) are elected to that job – and only that job – and are subject to constant review.

On top of all this, Shepherd’s report detailed some striking problems, not the least of which is the complete absence of any DUII trials in 2008. There is also evidence of a very high rate of dismissal compared to Circuit Court, and evidence that one lawyer has managed to win virtually every motion attacking Muni Court DUII charges.

Three months went by after submitting our report to the City Council and there was no response, despite my attempts to start a conversation with any number of elected and appointed city officials. If you want to put a piece of artwork on the Riverwalk you are likely to become engaged in a multitude of conversations about the details with the city, and rightly so. But it simply was not possible to engage the city in a thoughtful and considerate discussion about serious problems with its judicial responsibilities. Once again I had to appear at a regular meeting of the City Council to be heard.

Cases ‘retried’

A greater circling of wagons hasn’t been seen since the Oregon Trail. Entire cases were retried right there in the council chambers. Every effort was made to dismiss our report as erroneous, frivolous, even vindictive. And while the report did contain some errors, none of them contradicted the disturbing facts: that many more DUII cases are dismissed in Muni Court than in Circuit Court; that almost every motion to suppress DUII evidence is approved; that the defense almost never loses; that some serious cases never even make it to court. No one from the city has yet to provide any comparable statistics to contradict those facts.

Unlike many other crimes, DUIIs are committed by people from all walks of life. Oregon law provides a person who is caught driving under the influence the chance to take a “diversion” every 15 years (increased in 2010 from every 10 years) and keep the conviction off their reord. A person's third DUII conviction within 10 years is a felony, and felonies cannot be handled by Muni Court.

If the Council or others needed any further proof how seriously voters take DUIIs, they might take note of Measure 73, which toughened up DUII laws. It passed in November by 57 percent statewide and by 59 percent in Clatsop County. An Astoria City Council candidate made DUIIs in Muni Court a November election issue and was elected over the incumbent by a 2-to-1 margin. Voters believe driving under the influence is a serious matter.

The city claims that it makes money on DUII cases, but it is not clear how. In 2009, the city paid Clatsop County $8,000 to house DUII arrestees in the County Jail. The city is charged $400 by the hospital each time a suspect blows over .25 percent on a breathalyzer test. None of those charges would occur if the cases went to Circuit Court. But they’re small amounts compared to the thousands of dollars a month the city pays for the services of the part-time city prosecutor and part-time city judge, who also get paid extra for every hearing over which he or she presides (both of whom are criminal defense attorneys in the rest of their practice).

The DA’s office charges the cities nothing. We prosecute 1,300 criminal cases a year, and can take on another 80 DUIIs without the need for additional staff or money. Similarly, the majority of the judges believe the courts can handle a few more DUIIs.

The DA’s office won't get extra money or gold stars should it take over Astoria’s DUIIs. A person arrested for drunk driving in Astoria will simply be treated no differently than someone arrested in Seaside, Knappa or Olney.

Equal justice

It shouldn’t matter who you know, or how long you've known them, or how much money you have. “Equal justice under the law” is the most important concept in American justice, and it is the job of the district attorney to seek all means to ensure that it is applied. My concerns are with accountability, not personalities.

We have full-time professional and accountable judges and an appellate process that costs the city taxpayers not one dime extra. The Snow law firm has retired from its role as city attorney and former City Councilor Henningsgaard has just been appointed to the position. It’s Astoria’s bicentennial year. It’s the right time for Astoria to catch up with 21st-century judicial practices.

Saturday, January 1, 2011

Uncle Ted slams our hands in the door on his way out

Governor Ted Kulongoski, one-time Attorney General and one-time friend of many in Oregon law enforcement, has been making it very clear since early in his second term that he has stopped listening to many of us who helped get him elected. He is instead  listening to the criminal defense zealots who think that whenever virtually anyone is locked up our system has failed.

Almost without exception, Governor Kulongoski has appointed criminal defense lawyers to judicial positions and has failed to take the counsel of the 72 elected sheriffs and DAs, many of whom helped him get elected in both 2002 and 2006. I should know because I dragged many kicking and screaming onboard, promising not to worry about sentiments like those reflected in this short video clip from an exit interview with Willamette Week reporters.

I don’t receive any kind of bonus or award for the number of people my office advocates a judge or jury should send to prison. In fact, less than 25% of those convicted of felonies actually get sent to prison and the average sentence, including supposedly draconian Measure 11 sentences for violent crimes, is less than 4 years.

It is virtually impossible to go to prison in Oregon for your first meth deal, home burglary, or any of the vast majority of felonies. Despite the urban legends Willamette Week and others spin about Measure 11, even in most of those cases judges have the authority to grant non-mandatory sentences. In the vast majority of sentences judges are in fact limited only by how tough their sentences can be.

Violent crime is dramatically down in Oregon and even the academic researchers, at least nationally, credit increased incarceration. The let-em-loose crowd makes the point that 97% of inmates eventually get out. Absolutely true since you either have to have committed aggravated murder and a huge string of violent sexual crimes to get an effective life sentence in Oregon. (A 60-year-old man who gets 40 years is getting a life sentence). But “re-entry” is becoming a new code word, like “evidence-based” or any number of other new urban jargon, for avoiding individual responsibility and accountability.

As Governor Kitzhaber opens his third term we can hope he will look for appointments beyond those who have stated they think the People are stupid for having voted for truth in sentencing. Kulongoski says our system is like putting a net across the river to catch 20% of the “bad fish” and that we inevitably catch, and by extension lock up, people who don’t belong there. Please identify a group of these people. And I don’t mean the carefully selected case WWeek gets pitched by some defense attorney. For every one of those I can produce 10 cases where vicious criminals escaped deserved punishments because of holes in our sentencing system.

As the state struggles to balance its budget, what is most important and where is money best spent? How much money is saved by spending $1 locking up a violent inmate?  Almost $5 in just financial costs alone, to say nothing of the emotional and social consequences. Legislators keep spending millions more every biennium on (certainly needed) public defense and keep cutting prosecution, most recently to punish prosecutors like me who call them out for making false claims about the costs of voter initiatives. (Grossly inflating the costs of Measure 57, for example.)