Tuesday, December 4, 2012

Citizens and Capital Punishment

December 3, 2012
Joshua Marquis and Steven Atchison

The Oregonian editorial board is joining the call for a "conversation" about capital punishment in Oregon, started when Gov. John Kitzhaber presumptuously decided his will was more important than the voters' or the courts' by stopping the execution of Gary Haugen, and more recently by state Rep. Mitch Greenlick's call for a constitutional amendment ("Oregon's life-or-death vote," editorial, Nov. 27)

There has been a very robust conversation going on for the 28 years of the "modern" era of capital punishment in Oregon -- in the courts; in the classrooms of high schools, colleges and law schools; in the Legislature; and on the street. 

Oregon is the home to direct democracy, thanks to William U'Ren. In its editorial, The Oregonian lists five states that have stepped away from the death penalty in the past decade. What wasn't mentioned was that in not one of those states did the people vote to abolish the penalty. In Connecticut it was done despite more than 62 percent of voters saying they opposed the action, and in the other states it was either the action (as in Illinois) of a lame duck legislature or a state where the governor could exercise the power to abolish it. 

Most states do not share Oregon's (and California's) belief that the ultimate voice belongs to the people. In the past 50 years in America, only three times have the people of any of these United States made a decision about whether to keep or abandon the death penalty. In 1964 Oregonians fairly convincingly voted to abolish the death penalty. In 1984 the same state voted even more emphatically to restore it. In 2012, in one of the most underreported stories of the election year, California turned away by a significant margin an effort to abolish the death penalty. More than $7 million was spent in that effort, against less than $300,000 for those seeking retention of the penalty. 

The case of Kitzhaber's action in the Haugen case is being decided in the courts. Thus far, a respected judge, an opponent of capital punishment, has ruled that the governor had no right to grant a "reprieve" where none was asked, and now the governor is appealing that decision. 

Yes, DNA and aggressive advocacy should give people greater confidence in our state's legal system. Oregon rightfully spends more money than almost any state in America on those accused of capital murder (according to a New York Times study of a few years ago). People facing death deserve good, qualified lawyers, and in Oregon they get them -- sometimes two, three or even four of them -- as well as investigators, psychologists and mitigation specialists. Yet no one can cite a single case of anyone on Oregon's "modern" death row who even claimed actual innocence. 

The real problem, the one that frustrates most Oregonians, is that it takes decades to rule on the multiple appeals, such as those of Randy Guzek, who murdered Rod and Lois Houser in 1987, has had four juries unanimously sentence him to death, and lost 8-1 when his case went before the U.S. Supreme Court in 2005. 

Maybe there should be a public referendum simply asking: "Should there be no crime for which the death penalty may ever be applied?" And while we're there, it would interesting to get a commitment from the death penalty's opponents on whether they would then challenge life without parole, now offered as the alternative to capital punishment, as being a violation of cruel and unusual punishment. 

In Oregon the death penalty is, appropriately, rarely sought and even less often imposed. But at some point, those who oppose it may have to take "yes" as an answer from the people of Oregon. To borrow from a speech by President John F. Kennedy: "We cannot negotiate with those who say, "What's mine is mine and what's yours is negotiable." 

Joshua Marquis is the Clatsop County district attorney. Steven Atchison is Columbia County district attorney. 

Sunday, October 28, 2012

An oldie but a goodie

Ray Merritt calls himself Head Vacuumer at the gem that is our local public radio station, KMUN. But he has kept the station afloat for many years in many capacities as a member of the Board of Directors. He unearthed a 1995 VHS "bright" news story from KPTV about the "DA D.J.," barely a year after I started my job. No jokes, please about how both Lars Larson I have less hair and more weight now -- or that Lars was an award-winning journalist back then. Time has taken its toll. 

Monday, September 24, 2012

City Club of Portland M80 Debate

Friday, September 21
spokesperson for Measure 80; and
Sarah Stephan, Pyramid Communications, Moderator

Play or download the audio only here, on the City Club's website.

Full text of the Measure is here. (.pdf file)

The Oregonian editorial board recommends a NO vote.

Sunday, August 12, 2012


The August 10 story in the Daily Astorian ("Judge gives a DUII win to city of Astoria," by Chelsea Gorrow) is largely accurate.

The story was written based on an informal e-mail from Judge Norblad to the attorneys for the DA's office (the Attorney General) and the City (Blair Henningsgaard) which I had not seen until contacted by the paper because my attorney in the AG's office is currently on vacation.

For several reasons previously discussed regarding the conduct of the city of Astoria's Municipal Court process with DUIIs, I have asserted that the DA's office does not cede control of DUII cases to Municipal Court and therefore all DUII cases must be filed in Circuit Court. The City refused to accept the DA's control over such cases. The purpose of this year-long litigation was to confirm State law which asserted the DA's control of DUII prosecutions.

Judge Norblad's order of May 22, reaffirmed in the recent email, confirms the DA's authority over DUIIs as stated in Oregon law:
"It is this court’s opinion the district attorney controls and directs prosecutions of DUIIs in all the courts in his county, and in this case, the city of Astoria. This would include all DUIIs filed under state statute or city ordinance."
The informal email that is the subject of the latest Daily Astorian piece addresses what might happen should the City persist in attempting to prosecute DUIIs in Municipal Court. Would the DA's office be required, as the City requested, to appear in Municipal Court? Judge Norblad made a distinction between the words "appear", which in legal terms means a lawyer must actually be in the courtroom, and "attend", which means a lawyer need only file the appropriate paperwork, and ruled that the DA's office must "attend". In such cases the DA's office would file a motion to dismiss and refile the charges in Circuit Court.

The small number of DUII cases in Astoria can be prosecuted by the DA's office without the need for more money or staff. The Attorney General's legal work -- about $25,000 -- was paid out of the DA's 2011-12 existing office budget by squeezing savings in administrative costs.

The only thing the DAs office gets out of handling Astoria's DUII cases is the knowledge that the cases will be handled equitably, with all due diligence, by full-time professionals who wear only one hat -- as prosecutor, defense attorney or judge -- and are not prosecutor in the morning, defense attorney in the afternoon and judge on Mondays, none of whom are elected.

The District Attorney's office cannot ethically continue to allow DUIIs to be prosecuted without a court of record. Prosecutions don't even exist outside a court of record and thus eliminate the legal concept of double jeopardy. Defendants in Municipal Court would therefore be required to stand trial again in Circuit Court. Two prosecutions, two defenses, two juries and double the APD officer's court time. It makes no sense as justice for the People nor does it make sense financially, except to the private attorneys.

There is nothing official that can be acted upon until both parties sign off on the language and the judge signs his order.

When the order has been signed by Judge Norblad, either the AG's office or I will send a letter to the City reasserting the DA's authority over DUIIs and requesting they be filed in Circuit Court. Perhaps the City will be sensible and respect both the Judge's order and, as importantly, the taxpayers by simply doing so.

Saturday, May 26, 2012

DA Wins Battle Over DUII Cases

Clatsop County DA wins battle over DUII case jurisdiction

by Thom Jensen KATU News and KATU.com staff Published: May 25, 2012 at 11:05 PM PDT Last Updated: May 28, 2012 at 2:10 PM PDT. Original story click here.

It's a ruling that could end what critics call a "good ol' boy" system of prosecuting drunken drivers along the Oregon Coast. Prosecutors in Clatsop County have been fighting the city of Astoria for jurisdiction over those cases.

Click here for video
In the ruling issued Thursday, Circuit Court Judge Albin W. Norblad wrote, "It is this court's opinion the district attorney controls and directs prosecutions of DUII's in all the courts in his county, and in this case, the city of Astoria."

But will the order change the politics of prosecuting repeat offenders?

Ever since anyone in Astoria can remember, drunken driving cases inside the city limits have been handled by the city attorney.

But some say that has caused problems. One woman pointed to how her mom died of an overdose after her mother only received slaps on the wrist for multiple drunken driving arrests that were handled at Astoria’s municipal court. Other people pointed to a mayor who never did any jail time even after getting a third DUII.                

Even after the judge said Astoria needs to handle these cases differently, the judicial turf war continues.

It's a subject that many Astorians are reluctant to talk about publicly, saying it's too political and they don't want to buck the system in the town with a population of only 10,000. Many, however, complained that they believed a "good old boy" system was in place at city court and connected people were getting off easy while others faced stiff punishments.

But for the past two years, District Attorney Josh Marquis has been bucking the system and fighting to take over all DUII cases in Clatsop County. He took the city to court in April and now can claim victory.

"I'm hoping that we can work together on this and that this is over now," he said.

Marquis said he'll make certain everyone gets a fair shake if his office handles the cases.

"It will mean more accountability and more consistency, and whether you get arrested in Cannon Beach or Seaside or on the Megler Bridge, or the old Youngs Bay Bridge or in front of the courthouse, you will be treated the same," he said.

Astoria's mayor has repeatedly refused to talk to KATU News about his DUII's and whether Marquis or the city attorney should handle these cases.

City attorney Blair Henningsgaard was out of town and not available for comment Friday.

Marquis said he's hopeful Henningsgaard will respect the judge's ruling and turn over all drunken driving cases over to his office.

But Henningsgaard told The Daily Astorian he believes the judge's ruling still leaves the cases in the municipal court but with Marquis' office handling them. Marquis made it clear, since he has control of the cases now, he will move all cases to the state court where he is sure everyone will be treated equally.

Monday, May 7, 2012

Satire? Or too much "medicine"?

The Oregonian ran an on-line Op-Ed from a  marijuanaophile who claims that if weed were legalized the whole criminal justice would collapse. It's either heavy-handed satire or too much "medicine."

According to figures from the State Corrections Department about 7% of the 14,000 people in Oregon's prison are there for "drug" offenses. That's 980 people. That number isn't broken out by drug but, based on my 25 years experience practicing in four counties, my best guess is less than 15% of that 7% is for marijuana-related crimes. That's less than 147 people.

Measure 11 does NOT include any drug offenses, not even giving heroin to a minor, and Oregon judges are severely limited in their discretion by Sentencing Guidelines which prescribe a non-prison sentence for the vast majority of persons convicted of selling marijuana.

Fully 70% of Oregon inmates are in prison for "person" crimes -- crime involving violence directly against a victim. The burglary of a home, if someone is not home, is NOT considered a person crime.

State legalization of marijuana is meaningless unless the Feds reschedule the drug. If marijuana -- a substance marijuana mogul and advocate Paul Stanford refers to as "relatively non-addicting" -- were to be legalized by the FEDERAL government I would expect absolutely no real reduction in workload for my office or for the police or the drug team. Oregon's law enforcement officers mostly trip over marijuana cases.

One case I prosecuted a few years ago is typical. Someone with prior convictions and some sort of "medical marijuana card" greatly exceeding their plant limit and was growing in public view right next to a school. Parents of the school children complained.  Sheriff's deputies made not one, but two trips simply to warn the illegal grower to get back in compliance with the already-lenient regulations concerning "medical marijuana". When he refused he was convicted, but he did not go to prison.

The Op-Ed writer may be confusing Oregon law with the extremely harsh federal drug laws, which account for about 8% of all inmates nationally. He also apparently is unaware that Oregon abolished bail bondsmen 40 years ago and that law enforcement joined with civil liberties groups last year to oppose any attempt to re-establish a bail bonds system.

The narco-violence that exists primarily In Mexico and Central and South America is the result of those nations' abdication to drug lords who will run anything they can make money on.

The same distribution network is used for any of the drugs moved by the cartels -- heroin, meth and sometimes marijuana, although Mexican marijuana is rarely seen in the Pacific Northwest since it is so easy to grow and generally the THC content of local marijuana is much higher because of growers' expertise.

As I wrote in the Oregonian eight years ago, marijuana is a legitimate medicine for some people. Accordingly it should be re-classified as a schedule 2 drug that doctors can prescribe and pharmacies can disburse.

Oregonians have been rational about marijuana for decades. We were the first state (led by the Lane County District Attorney in 1973) to decriminalize possession into a non-crime. Oregonians are compassionate and wanted sick people to have access to the drug (and it IS a drug, not a holy sacrament or the answer to all the world's ills). Voters were told in 1998 that maybe 500 to 1000 people would qualify for medical marijuana cards. There are now more than 55,000 card-holders in Oregon. Fewer than 10% have the medical conditions that were discussed in the 1998 election.

Finally, ponder this. Anyone who thinks that legalizing marijuana will bring in boatloads of taxes needs to remember the nature of pot. It is a weed. It grows easily, almost anywhere. Unlike all the other intoxicants, legal and illegal (vodka, tobacco, oxycontin, heroin, cocaine, etc.) the production of marijuana can be carried out by any high school drop-out in their basement. Why would most people wanting to grow it submit to government regulation for something so simple to make?

Tuesday, March 27, 2012

Senate Judiciary Committee on wrongful convictions

Coincidental to my Cato piece on "Rightful Convictions," I was invited by Sen. Chuck Grassley (R-Iowa) to testify before the Senate Judiciary Committee on March 21st. The subject was “Justice for All: Convicting the Guilty and Exonerating the Innocent.” Testifying also were the DA of Dallas County, Texas, Craig Watkins; and Thomas Haynesworth of Richmond, VA. Mr. Haynesworth was wrongfully convicted of rape in and spent 27 years in prison. He was truly exonerated by a DNA test that was not available until recently.

Link to the webcast. My testimony begins about 44:00.

Thursday, March 8, 2012

Rightful Convictions

A "Reaction Essay" in repsonse to "Learning What We Can From DNA," by Prof. Brandon Garrett. Published in CATO Unbound, March 7, 2012.

Professor Garrett cites one of the relatively few genuine death row exonerations—Kirk Bloodsworth—and then invokes that case to argue that wrongful convictions on death row are epidemic because Georgia murderer Troy Davis' case did not turn on DNA.

In the space available it is not possible to address all of Garrett's issues, so I will concentrate on the definition and reality of exonerations using DNA testing.

Garrett repeats the often wishful thinking of death penalty opponents that "the death penalty is dying in America." Of those states that abolished the death penalty, only Oregon, in 1964, did so by popular vote—and then reinstated it in 1984 by a 75 percent vote. Using the U.S. Department of Justice's Bureau of Justice statistics, it is clear that in the first decade of the 21st century (2000-09) the states that do execute murderers used the penalty 26 percent more often than in the last decade of the 20th century (1990-1999). And, not coincidentally in the minds of many of us, over the same time period the murder rate in America declined over 20 percent.

DNA came into America's courtrooms state-by-state, mostly in the late 1980s and early 1990s. It was propounded not by defense attorneys but by prosecutors who noted what happened in England in the case well-portrayed in Joseph Wambaugh's book The Blooding.[1] In it, the appropriately named Colin Pitchfork was brought to justice through a form of DNA testing that would horrify most American civil libertarians: the British police pretty much required all the males of a certain age to submit to having their blood taken by needles. (DNA can now be collected with a Q-tip like device that swabs the inside of the subject's mouth.)

For any scientific technique to be accepted or to withstand the attack that it is mere junk science, federal courts have imposed the Daubert standard.[2] Virtually every state either has adopted that standard or has fashioned its own. In Oregon, for example, it is called the Brown/O'Key standard, and it examines “the technique's general acceptance in the field, the expert's qualifications and stature, the use which has been made of the technique, the potential rate of error, the existence of specialized literature, the novelty of the invention and the extent to which the technique relies on the subjective interpretation of the expert.”[3]

Since a prosecutor's role is to seek justice, not simply convictions, it is always in our interest to find the right person—to defeat the claim of SODDI (Some Other Dude Did It). My predecessors in Clatsop County, where I am the DA, finally convinced the Oregon appellate courts, in State vs. Futch, to allow DNA evidence.[4] Defense attorneys had fought it tooth and nail until the Futch decision.

It turned out that in a relatively tiny percentage of cases, DNA would exonerate people. Kirk Bloodsworth’s case makes headlines because it is so rare. There were two poster boys, literally, for death row innocence in the 1990s, both of whose supporters claimed DNA would free them. One of them was championed for over a decade after Virginia legally killed him.

In 1992, Roger Coleman was sentenced to die for the 1981 rape and murder of Wanda McCoy in a tiny Virginia coal mining town. (Victims have names too.) Coleman’s picture graced the cover of Time magazine, and he protested his innocence to Ted Koppel on ABC's Nightline shortly before his execution. Coleman was represented, like many death row inmates, by a top-flight law firm—Washington, DC’s Arnold & Porter.

The 11 years Coleman languished between his crime and his execution is much shorter than would occur in most of the 35 states with the death penalty. His last words were, "An innocent man is going to be murdered tonight. When my innocence is proven, I hope America will realize the injustice of the death penalty as all other civilized countries have." The same Dr. Edward Blake cited by Garrett had the one remaining biological sample from Coleman. It was too small to be tested under the PCR testing available in 1992. When Virginia authorities tried to get the sample post-execution, Blake refused, telling the BBC it was an act of civil disobedience on his part because he was so sure Virginia would try to cover up the execution of an innocent man.[5]

This standoff continued until January 2006, when outgoing Governor Mark Warner brokered a deal to have a neutral Canadian lab test the sample using the latest DNA technology. Coleman's most dogged supporter, Jim McCloskey of Centurion Ministries, which fights to free the wrongfully imprisoned, planned to announce the results on live TV.[6] He didn’t. The test came back with a 1 in 19million probability that anyone other than Roger Coleman could have murdered and raped Wanda McCoy.

During the election summer of 2000, the death row practices of Texas came under particular scrutiny. Barry Scheck and the Innocence Project represented Ricky McGinn who had been on Texas’ death row for six years for the rape and murder of his 12-year old step-daughter, Stephanie Flannery. There was a tiny speck of biological material that could not be tested when McGinn went to trial. A Newsweek cover featured McGinn’s face, coincidentally on the same day Scheck testified before the U.S. Senate Judiciary Committee,[7] citing McGinn's case. (I testified that same day.[8])

Texas Governor George W. Bush did he was allowed (a single 30-day reprieve) so that the speck on Stephanie’s underwear could be tested. But again, you never heard about it.Newsweek never published an update. Hardly anyone remembers the now-executed McGinn because the DNA test proved beyond any possible doubt that he was both a killer and a rapist.

Do these two high profile non-exonerations means we should say "game over?" Of course not.

In response to the Senate hearings, the National District Attorneys Association, on whose board I have sat since 1997, adopted the policy that DNA tests should be afforded at any stage of a proceeding—even after all appeals have been denied—if the testing can reveal actual guilt or innocence. There is little downside to a DNA test for a convicted murderer when the test won’t answer any question regarding guilt. But a defense attorney will demand one because his job is to cast doubt on any part of the state’s case, not just that which establishes guilt or innocence.

Garrett references a study by Professor Samuel Gross that came out of a Northwestern Law School symposium and subsequent issue of their Journal of Criminal Law.[9] I used Gross' own numbers to estimate the incidence of real-life exonerations, as opposed to those in TV shows or movies. Gross cited about 390 cases from 1989 to 2003 where he and his team believed serious felony sentences were unfairly handed down against innocent defendants. The cases he cited from Oregon hardly met that test. Gross posits there must be many more exonerations than he identified because he asserts (and Garrett repeats) that in many cases DNA or a recantation by a key witness does not exist. So I rounded Gross's number up to 400 and multiplied it by ten, yielding 4,000 exonerations—far more than I believe exist for the time period. I divided the 4,000 by 15 million, the number of felonies committed during the same period, yielding a “rightful” conviction rate of 99.93%. My article in the New York Times[10] drew howls of protest, many attacking my math, pointing out that my base statistic of 15 million was all felonies.

Okay, so let's refine the numbers down to just willful homicide and forcible rape. This is narrower than Gross's sample and amounts to about 1.5 million. Move the decimal one point and you have a "rightful" conviction rate of 99.72%. Small consolation if you are in that .28 of one percent.

The wrongful conviction rate should be lower and prosecutors can do more than anyone in the criminal justice system to make sure that happens by being very discriminating in bringing capital cases. Pharmacists and doctors separately kill 10,000 Americans—by accident—every year, but we don't ban prescriptions or elective surgery. We try to find out what went wrong and fix it.

Garrett and his fellow opponents of the death penalty—and then true life, and then mandatory sentencing of any sort—claim they really just want to fix the problem. But, as Justice Antonin Scalia acidly pointed out in his concurrence in Kansas v. Marsh,[11] they aren't interested in fixing the system, but in tearing it down. I have no doubt their beliefs are sincere and deeply held, but if we are to debate such an emotional issue we should do so with context, not ignoring the stories that don't make the front page or are relegated to the newspaper’s "airplane pages" (B-2, C-5, etc).

States are doing all kinds of things to prevent the errors that led to Kirk Bloodsworth’s convictions—better trained and paid public defenders and prosecutors, and a true national DNA bank, the latter of which is ironically opposed on civil liberties grounds by people apparently unaware that the DNA we use to identify a suspect is considered “junk DNA” for medical purposes. We can't, for example, find out whether a person is inclined to get Tay-Sachs disease even if we wanted to.

I can understand how libertarians generally don't trust the government to get things right and accordingly might be even more leery of the government killing someone. Professor Cass Sunstein proposed in "Is Capital Punishment Morally Required: The Relevance of Life-Life Tradeoffs"[12] that if the series of nonideological studies done in the last decade are right, then having a death penalty spares between 10 and 24 innocent victims of murder. How can we abandon indisputably innocent men, women, and children to homicide?


[1] Joseph Wambaugh, T he Blooding (William Morrow), 1989.
[2] Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
[3] State v. Brown, 297 Or 404, 416, 687 P2d 751 (1984).
[4] State v. Futch, 123 Or App 176, 860 P2d 264 (1993).
[5] “The Roger Coleman Case: Did Virginia Execute an Innocent Man?” Inside Out, WBUR.
[6] William Tucker, “Guilty Again!” American Spectator, January 17, 2005.
[7] Senate Judiciary Committee Testimony of Barry Scheck on Post-Conviction DNA Testing, June 13, 2000.
[8] Senate Judiciary Committee Hearing on Post-Conviction DNA Testing, June 13, 2000.
[9] Symposium: Innocence in Capital SentencingJournal of Criminal Law and Criminology, Vol. 95, Issue 2, Winter 2005.
[10] Joshua Marquis, “The Innocent and the Shammed,” New York Times, January 26, 2006.
[11] Kansas v. Marsh, Supreme Court of the U.S. No. 04-1170, 548 U.S. 163 (2006).
[12] Cass Sunstein and Adrian Vermeule, “Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs,” U Chicago Law &Econ, Olin Working Paper No. 239; AEI-Brookings Joint Center Working Paper No. 05-06; U of Chicago, Public Law Working Paper No. 85.

Wednesday, March 7, 2012

Bergin best bet for sheriff

Guest column
The Daily Astorian
Tuesday, March 6, 2012

Tom Bergin, Clatsop County Sheriff
There are almost half a dozen candidates running for the office of Clatsop County Sheriff.
There are only two countywide elected offices (other than judges).
They are the sheriff and district attorneys. I’ve had the privilege of serving almost 19 years as the district attorney and Sheriff Tom Bergin is the second sheriff with whom I have served.
Being the sheriff is much more than being another cop with more stars on your shoulder. Some of Bergin’s opponents have distinguished themselves as street cops, a worthy and much-needed skill. But that skill is very different from the leadership and management necessary for the county’s chief law enforcement officer. It is for that reason that I give my unqualified endorsement to Tom Bergin and urge Clatsop County voters to keep him in office another four years.
Most striking in the platforms of some of Bergin’s challengers are those who say they are opposed to the jail measure that is appearing on the same ballot May 15. I find it almost impossible to believe that anyone familiar with how dysfunctional our jail is would not at least encourage voters to take the first opportunity in a decade to remedy a situation that has been deteriorating since I took office. I invite them - or any citizen - to come any weekday to the 1:15 p.m. custody arraignments and watch who I recommend be released almost daily.
There have been a handful of studies, costing tens of thousands of dollars, all of which concluded we needed at least 90 to 100 more beds than we currently have. You don’t want all the beds filled. The system works best when there are at least some empty beds and people on probation (and 75 percent of convicted felons do not go to prison - they are supervised locally by probation officers) will know that. In most cases the judges we elect have given them a probationary sentence and are trying to wean them off drug and/or alcohol and get them into programs for employment, anger management and substance abuse. Right now it is not uncommon for someone to test dirty several times before there is any consequence. And I’m not talking about sending someone who keeps using meth to prison for three years. That doesn’t happen. I’m talking about a “micro-sanction” of maybe five to 10 days.
Research has shown that the swiftness and certainty of consequences is more important than its severity.
Jail is very different than prison. Most of the inmates are there because they are awaiting trial either on very serious charges or they have demonstrated no ability or willingness to show up for court dates. Jails are claustrophobic, tense and potentially dangerous places ... for both inmates and staff.
I know, I worked in the Eugene Jail when I was at the University of Oregon. Bergin’s proposal, adopted by all the County Commissioners and endorsed by all the current elected county officials, is a budget-minded remodel of existing facilities. It will cost less than half of what was proposed 10 years ago when we sought to build and entirely new facility in Warrenton.
Instead it takes the current jail, moves all the sheriff’s administrative functions and patrol offices to the existing community corrections division (formerly Transition Center) and in over two years remodels and extends the jail built in the late 1970s across the current parking lot, almost doubling the bed size.
This will allow several good things. Truth in sentencing - when a judge gives a third-time DUII driver (within four to five years) 90 days, they will actually serve the time (that is the presumptive felony sentence for someone’s third DUII plus a DUII diversion within 10 years). It will mean that the programs the probation officers try to make the inmates comply with will have negative consequences if they fail to follow through.
 No one wants to see our neighbors with problems fail. NInety-eight percent of them will be  our neighbors soon enough, and hopefully not using meth three times a day any longer.
Bergin has shown true leadership by first merging what were literally competing programs - the jail and Community Corrections and then spearheading - often quietly over the last four years - a sensible cost-efficient remodel that is affordable. Most of us who pay property taxes will see an increase roughly equivalent of what we pay for the bus system or about 1 percent of your overall property tax bill.
Sheriff Bergin has the respect and admiration of not just the people here in Clatsop County but in Salem and his fellow sheriffs across Oregon who named him Sheriff of the Year last year.
When we have had disasters, Bergin is out there in his 4-wheel drive, winching cars out of snowbanks and delivering water to small remote communities.
Bergin is no grandstander and it would be a real shame not to continue to benefit from his straight-talking and solid common sense.
Bergin and I disagree on some political issues, but a better sheriff we could not find.
Joshua Marquis has been Clatsop County DA since 1994 and was last re-elected in 2010.

Sunday, February 19, 2012

New Appointments and Elections

For the past three years I've served on the American Bar Association's (ABA) Criminal Justice Leadership Council (CJS) , a group of about 30 lawyers of whom about 10 are prosecutors. That term expired has just expired and I've been notified that I was nominated and elected to a second three-year term, this time as Vice Chair-at-Large to the group. 

I'm serving my fifth year on the governing Executive Committee of the National District Attorneys Association and have recently been designated to once again serve as the Oregon State delegate to the NDAA's Board of Directors. I am a former Vice-President of NDAA which gives me an automatic spot on the Board, but as the official Oregon delegate I can bring the perspective of smaller offices like Clatsop County to national issues. 

NDAA's Board and State Delegates traditionally meet in Washington, DC in late January or early February. This is when I take the opportunity to meet with Oregon's Congressional delegation -- this year I was able to meet with all seven. The trip coincided with the elegant, formal swearing in of our newly elected 1st District Congresswoman, Suzanne Bonamici. The picture below was taken outside her office just prior to her swearing in. Suzanne's staff graciously arranged for me to watch from the proceedings from the Speaker's Gallery. The entire House was on the floor, along with Senators Wyden and Merkley. It was quite impressive.

I also continue to serve as the United States delegate to the International Association of Prosecutors

It's a great honor to represent the North Coast and Oregon in both national and international organizations. I'm particularly pleased to be part ABA leadership since prosecutors historically have had little contact with the largest national lawyers group in America. I want to thank Brooklyn DA Joe Hynes for inviting me to join and nominating me to the ABA leadership.

As always, none of my out-of-state travel is paid for by Clatsop County taxpayers.

Saturday, February 18, 2012

Suspect arrested in Astoria Police shooting

Official News Release from the Clatsop County District Attorneys Office, February 17, 2012, approximately 3:30pm.


Detectives of the Oregon State Police have arrested 37-year-old Yevgeniy Pavlovich Savinskiy of Washougal, Washington on an Information filed in Clatsop County Circuit Court. He is being charged with 13 counts including two counts of Attempted Aggravated Murder, two counts of Attempted Assault in the First Degree, Felony Attempt to Elude, Identity Theft, and Attempted Possession of a Firearm Silencer, Attempted Possession of a Destructive Device and five counts of Recklessly Endangering Another Person. The first 6 counts are felonies, carrying sentences ranging from 5 to 20 years in prison, and the last 7 charges are misdemeanors carrying a possible one year jail sentence. The first two counts are Measure 11 allegations, carrying a 10-year mandatory prison terms if convicted.

Savinskiy had just been released from a Portland hospital where he had been treated for gunshot wounds in his wrist and shoulder resulting from a confrontation with Astoria Police in the early evening of Sunday, February 12.  Astoria Police had gone to the Lamplighter Motel on Marine Drive in Astoria when hotel staff had become concerned about items in a room they had found. Police found what appeared to be a silencer - a device that is illegal without a special permit from the Federal Bureau of Alcohol Tobacco and Firearms. Officers asked hotel staff to notify them if the man, who had checked in under another name, returned. He returned about 5:30 pm Sunday evening.

When uniformed officers attempted to contact him, he met them at the door of his room by pointing a loaded handgun at them. Two officers fired several rounds, at least two of which struck Savinskiy. Although bleeding profusely, Savinskiy got into a silver Chrysler van, rented under yet another name at Portland International Airport, and took officers from several Clatsop County Police Agencies on a high speed chase down US Highway 101 at speeds up to 110 mph. Sheriff's Deputies and an Astoria Police Sergeant deployed spike strips and used a tactical maneuver with a police car to stop the van near the junction of US Highways 101 and 26. Savinskiy was taken into custody there without further incident and transported by ambulance to Columbia Memorial Hospital where he was stabilized before being transported to a Portland trauma center.

The investigation, directed by an Oregon State Police detective and aided by members of the Clatsop County Major Crime Team - made up of officers from all the police agencies in the county and agents from several federal law enforcement organizations, continue to conduct an investigation into both the shooting and possible crimes by Savinskiy. A search warrant yielded an assault rifle that matched the same ammunition found earlier Sunday by Astoria Police and numerous other items.

Savinskiy told police he was in business and carried a gun to protect himself because he had received death threats. Court records show that Savinskiy and a company, believed to be associated with him, are being sued for approximately $8 million dollars. Police have information that former customers are looking for Savinskiy. Since the suspect used several different names and expressed concern for his safety, authorities were reluctant to release his identity while he was still in the hospital.

He is scheduled to be arraigned in Clatsop County Circuit Court on Tuesday, February 21 at 1:15 pm in Courtroom 300 (NOTE: Requests for camera access needs to be addressed to the Clatsop County Circuit Court at 503-325-8555). It is expected that a Grand Jury will consider charges against Savinskiy sometime next week and if Indicted he would be arraigned again.

At this time security is set at $10,000,000.00. Under Oregon law that requires the posting of one-tenth of that amount ($1 million) in cash.

For further information contact the Clatsop County District Attorney.


Tuesday, February 14, 2012

News release on Astoria police shooting

This is the text of the official news release issued by the Clatsop County District Attorney's Office, Tuesday, January 14, 2012, about 4:00pm.

The multi-agency investigation into Sunday’s officer-involved shooting in Astoria is continuing. The following is an update on the investigation involving the Clatsop County Major Crime Team led by the Oregon State Police Criminal Investigations Division. Federal investigators and forensic investigation teams from Oregon State Police and FBI are assisting. 
The suspect is a Washougal, Washington area man. Although we believe we have finally conclusively identified him we are not releasing his name for security reasons at this time. We ask the media not to speculate or identify any particular hospital. Once charged his full name and date of birth will be released. For similar reasons, we are not releasing the name of the hospital treating him. His condition has been described as stable. He was shot twice. 
Astoria officers were first called by employees of the Lamplighter Motel at around noon on February 12. Officers found evidence that the occupant of the room had been manufacturing a silencer. Officers also seized military-type ammunition for an assault rifle. Astoria police contacted federal authorities because of possible federal law violations related to the found items. After leaving the motel Astoria police were notified by motel employees that the suspect had returned. Two police units with a total of three officers arrived back at the motel about 5:30 p.m. where they saw the suspect’s Chrysler van parked near the room. The rented van and a second motel room rented by the suspect were both under different names, neither of which matched what we believe now to be his true identity. 
Initial information indicated the suspect fired his weapon at officers during the incident. As the investigation unfolds, witnesses contacted by investigators at the hotel have confirmed that the suspect extended his arm and a handgun toward the officers from the threshold of his motel room. Forensic evidence indicates both officers fired at least once at the suspect. Physical evidence at this time has not conclusively established that the suspect shot at the officers.  The investigation will continue over the course of the next several days. 
Further interviews of the officers involved and further forensic testing will attempt to determine if the suspect fired his weapon. If the suspect did not fire his weapon the charges against him will likely not include attempted murder but will still include numerous felonies. 
Clatsop County District Attorney Josh Marquis explained that there are currently no plans to present the issue of the officer’s use of deadly force to a grand jury.  However a grand jury will consider possible charges against the suspect.“The investigation and evidence thus far reflects the officers had good reason to perceive a heightened threat level when they returned to the motel. Under Oregon law, police officers are not required to wait to be shot at before they protect themselves or others, the same standard that applies to others” said Marquis. 
Pursuant to the officer shooting protocols in place, the investigation of the shooting is not being conducted by Astoria officers. 
A blood-soaked handgun was also recovered next to the suspect when he was arrested following the chase by officers from the scene. The high speed chase was reached speeds exceeding 100 miles per hour. During the execution of a search warrant of the suspects hotel room, an assault rifle, the same caliber as the ammunition earlier seized, load bearing vests containing magazines for the rifle and other items were also seized. 
The Astoria Police Department Officers involved in this incident are not yet being identified. The officers have four and thirteen years of police experience. 
Both officers remain on administrative leave in accordance with the Clatsop County Officer Involved Shooting protocol, which does not indicate any judgment as to the appropriateness of their actions. 
The next release of information is likely to come within the next few days when the suspect is released from the hospital at which time he will likely be arrested, charged, and taken into police custody. 
The Clatsop County Major Crimes Team is comprised of investigative personnel from Clatsop County Sheriff's Office, Astoria Police Department, Warrenton Police Department, Cannon Beach Police Department, Seaside Police Department, District Attorneys Office and Oregon State Police. 
"We will continue to analyze all the evidence," Marquis said, thanking the Evidence Response Team of the Portland FBI, the several other federal agencies that helped, as well as the members of the Clatsop County Major Crime Team who continue the investigation under the leadership of a state police detective.

[Read the subsequent news release re arrest of police shooting suspect.]

Sunday, January 29, 2012

Defending Juries

America is almost alone in the world in believing in the intersection of democracy and law and that by selecting 12 disinterested (which doesn't mean bored or stupid) people to settle cases we seek the wisdom we think dwells in the hearts and minds of ordinary people.  

William Landay is a lawyer-turned-writer who worked in the Boston DA's office and whose new book,"Defending Jacob," is about an assistant prosecutor who investigates his own 14-year-old son's suspected role in a killing. April Henry, in her review in today's Oregonian, writes that the "courtroom scenes are well drawn, and it's clear that Landay is writing what he knows." She quotes this passage from the book, in which the protagonist considers the jury that has been selected to determine the fate of the 14-year-old: 
It was almost comical how ignorant they were of the law, of how trials worked, even of this case which had been splashed all over the newspapers and evening news. They were chosen for their perfect ignorance of these things. This is how the system works. In the end, the lawyers and judges happily step aside and hand the entire process over to a dozen complete amateurs. It would be funny if it weren't so perverse. How futile the whole process is. Surely Jacob must have realized as he looked as those fourteen blank faces. The towering lie of the criminal justice system -- that we can reliably determine the truth, that we can know 'beyond a reasonable doubt' who is guilty and who is not -- is built on this whopper of an admission: After a thousand years or so of refining the process, judges and lawyers are no more able to say what is true than a dozen knuckleheads selected at random off the street.
I've presented cases ranging from shoplifting to capital murder to well over 200 juries -- (btw, if this case was in Oregon it would be almost impossible for a 14-year-old, even one charged with murder, to receive a jury trial; it would instead be handled in juvenile court before a judge) -- and I've lost several in which I remain convinced the defendant was guilty. But my faith in the jury system remains strong. The arrogance and contempt expressed about jurors -- indeed the entire system --  in this passage is profoundly disturbing.

Is this really what Landay "knows"?