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.


  1. Go get um, Josh. There is no good reason to have municipal courts. Of course, in the 21st Century, there is no reason to have local courts of any kind. The idea that local communities have different standards of justice is obviously hooey and your comments confirm that. Why can't the elected Attorney General prosecute all offenses on a state court of first impression? No reason, other than keeping lawyers employed in local communities.

  2. Josh, you should consider filing Bar complaints against the lawyers that are doing unethical things in the Astoria Municipal Court. You should also file criminal charges against criminal behavior that occurs there. Oh, yeah, that's your job too. So, why haven't you stuck your neck out and done that. Schrunk would.

  3. Mr. Marquis
    I am in agreement with Mr. Henningsgaard et. al. on this one. The only misconduct I have personally witnessed has come from the DA's office in Clatsop County. If your office handles DUII cases differently than Kris Kaino's Muni court perhaps you should consider doing it the way they are doing it. My concern over the way the state prosecutes crimes in Clatsop County concerns other people than me. I have personally been in the courtroom when people who have been locked up for months and months have finally been broken down and agreed to plead guilty to something just to be able to go home....and the judge's who have been sitting on those cases do everything but try and talk them out of it because of how weak the case against them is. Then there was the would be alleged rapist your office charged with a measure 11 crime who was from out of town vacationing in Seaside who you held without bail and then with bail so high few people could have done it only to find out at the hands of ...who? Kris Kaino and his investigator, Jim Pick that this man who you had vilified in the press and stolen 6 months of his life from didn't do anything! Even so you STILL made him plead guilty to something before you let go of him. Another case where your offices conduct was way over the top was your prosecution of a man whose last name was 'Killion". I sat in on a bail hearing for this man where you yourself testified to keep him locked up and your office wanted 1 million dollars bail?...this man owned a successful business in Portland and was a homeowner as well he had no criminal record and come to find out No evidence against him and eyewitnesses who you knew said he did nothing wrong. You locked him up for 6 months waiting trial causing him to lose his house and his business and everything...only to drop all of the charges the day of trial. After Kaino and Pick humiliated your office and the police with the vacationing non rapist case took your vendetta out against Pick by having him arrested on trumped up assault charges which he was acquitted of at trial before a jury... Josh we appreciate your hard work and desire to keep this county safe ....but we do not endorse the detention, and prosecution of people you know aren't guilty. Judge Blackstone said it's better that 10 guilty men go free than to lock up 1 innocent one have apparently mixed these numbers up and reversed them. When that big shot criminal defense attorney wrote a book just to tell the world that he had found the most corrupt ADA he had ever come up against in his entire career and his name was Josh Marquis ....and then went on and on citing example after example backing that claim up I would have thought you would run a cleaner office than you do.

  4. The public is tired of innocent people being over charged and prosecuted all just so you can sweat them in jail for long enough to get them to plead guilty's embarrassing and it's illegal and unethical and we are concerned. Mr. Kaino and his people have shown themselves to be the only thing standing between us and you and they have done it in an ethical and prudent and legal way. Their win loss record against the DA’s in your office (or the cases where you wisely dropped people’s measure 11 crimes down to infractions which they pled to in order to just go home) should speak volumes to you. I understand that you would prefer to take Mr. Kaino out of the equation rather than change the way your office does business but if you don’t think that the citizens of Clatsop county and members of the bar who practice criminal law in this area aren’t going to see that for what it really is …a vindictive unethical power grab to further eliminate fairness and justice in this county…then you are sadly mistaken. Can’t you and your office just stick to prosecuting the criminals in our area and leave the innocent people alone…and when you do realize you have one …then drop the charges and let them go without holding them hostage unless they plead guilty to something …it’s embarrassing and it’s wrong

  5. Who are those "Astoria Police Officers" that dislike the municipal court? None of the cops I know are unwilling to say what is on their minds and they are unionized, so there can be no retribution. If you are doing this on behalf of them, please let us know who they are so we know they really exist and are not just an excuse for your rant. Steve, Forrester and Tom Bergin, by the way, are not Astoria police officers, as much as they would like to be.

  6.'s not "Mr. Kaino's Court" anymore than it is "My" court, which part of the problem.
    Some think the court "belongs" to whoever seems to be in power at the time.
    That is the concept behind the "rule of law."
    This piece is about DUIIS, not another charge where the detail could only be known to the actual parties. In that case the defendant pled guilty to crimes, just not Measure 11.
    The DA's office "sticks to" prosecuting cases in "our area" which would be Clatsop County. ORS 8.660 makes it very clear that bthe DA has authority over any criminal charge in any "court of the county."
    I declined to name the officers when then-councilman Henningsgaard asked because then as now those officers have expressed concern about retribution. The fact that the officers at APD continue to file cases in Circuit Court NOT Muni Court says a lot about how most of them feel.
    The reason to have the cases handled in the same court doesn't rest with what the cops want or what "I want." It has to do with a system of checks and balavces, professional judges and professionakl prosecutors who don't have other jobs outside the fair and hopefully equal treatment of DUII cases.

  7. Mr. Marquis,
    Thanks for the clarification. Sounds like the remedy for your problem is in the state legislature. After all, is there any reason to have a municipal court in the 21st century? It would be simple for the legislature to provide for only 3 courts in the judicial system. Maybe save us some money too.

  8. I agree with anonymous .to bad that he did not leave his name .That you should be running a cleaner office.holding innocent people should be left alone plus having miss info on your web site about others is not good as well . Pluse hearing that you might sue the city city council for not moving the duii case to the circuit court as well . how low can you go . boo hoo

  9. So, Josh, why don't you file criminal and Professional Code charges against the lawyers that practice in the Astoria Municipal Court and are doing such corrupt things? Are you not obligated to report these violations to the Oregon Bar? Just because the Supremes ruled that municipal judges were not subject to the judicial ethics (whatever that is) surely doesn't mean he is not subject to the code of professional conduct of the Bar Association. I really would like to know why you are not filing charges.

  10. Sometimes corrections are necessary.
    Unlike most blogs I leave almost anything up unless it is profane.
    There are a lot of gross mis-statements which I just put up with because unlike virtually any other elected official I have maintained a blog for years and let people have their say, even anonymously.
    That said an earlier post claimed:
    "You locked him up for 6 months waiting trial causing him to lose his house and his business and everything...only to drop all of the charges the day of trial. After Kaino and Pick humiliated your office and the police with the vacationing non rapist case took your vendetta out against Pick by having him arrested on trumped up assault charges which he was acquitted of at trial before a jury.."
    The defendant in the first case pled guilty to assault charges and was released from jail.
    Mr. Pick did NOT have a jury trial. His friend and lawyer, Mr. Kaino
    chose to waive jury and the case was decided by a judge....Judge Paula Brownhill.

    As to filing criminal charges I would not file criminal charges in a case involving a local attorney against whom I regularly tried cases. I would hand it off to the AG's office or another DA. By the same token I have to have a very high degree of proof which in the case of Municipal Court is difficult because so much goes on either behind closed doors or when there is no recording. That is one reason I tried to require all DUII courts to become courts of record. Astoria is not and fought legislation which would have required it.

  11. yes a lot of gross mis-statements by
    zanthinegirl and you seem to let it go and the post from the daily a on the duii . I wounder how much of that is a lie .

  12. Are you not required by the Code of Professional Conduct to notify the Oregon Bar of Code violations that come to your attention? If yes, does this mean that no Code violations have come to your attention regarding lawyers who practice in the Astoria Municipal Court, including the Judge?