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.)