Monday, November 17, 2014

Parole Board not the place to re-adjudicate guilt

The Parole Paradox
Should prisoners for whom there is strong evidence of innocence be required to admit guilt to be granted parole?

Parole Boards Shouldn’t Provide Incentives for Claims of Innocence
NOVEMBER 13, 2014

Joshua Marquis is the district attorney in Astoria, Ore., and co author of "Debating the Death Penalty."

We are approaching a point in our criminal justice system where even the guilty are regarded as innocent, and no one is responsible – unless there is absolutely, positively, 100-percent perfect DNA evidence available. And even then, well, there are always legal technicalities.

The justice system is a work in progress and not perfect. There are a tiny number of people who have been convicted and were in fact innocent. But a parole board, where virtually nothing about the case or the victims or the evidence is important, is not the place to re-adjudicate guilt.

Many decry the decades-long appeals convicted murderers get, but that is how the wrongly convicted get justice, not from a overly sympathetic parole board.

It’s not surprising then that more prison inmates smell freedom amid all this confusion. They read the news. They talk to one another. They know the trends. They know it’s now possible for even a guilty man to be cast as the victim – especially if the guilty man claims innocence.

"Truth in sentencing” laws have eliminated many parole boards. Parole hearings in Oregon are only for inmates sentenced before 1992. They generally limit the district attorney and the victim's representative to 15 minutes each to address the release of the man who profoundly affected the victim's life. The inmate and his representative can go on for hours.

Nothing changes for the victim no matter what the killer wants to tell the parole board. And when does the victim get parole? Likely, never. "Closure" is an elusive concept.

What’s troubling about the stories of murderers who insist on their innocence after pleading guilty 25 years ago, is how the stories turn those killers into celebrated victims who – unlike the dead victims – can give interviews and talk about their years in prison. It feeds the myth that our prisons are full of innocent men, when in fact our prisons are full of criminals who were finally caught.

The claim that so many are actually innocent is largely an urban legend, seriously undermined last week when the supposed innocence of Anthony Porter, a former Illinois death row inmate, fell apart.

At a murder trial, a defense attorney once asked jurors,"Is mercy earned or bestowed?" I argued that in order for mercy to be bestowed, it must be earned.

Read the Opinion on the NY Times website.

Thursday, November 13, 2014

The Court of Appeals issued its decision in the DUII case today. The summary is appended below.

The decision puts us pretty much right back where we were. No decision has been made about appealing the Court's decision. The state's District Attorneys meet twice a year and I expect this case to be discussed when we meet in three weeks.

The Court did make it clear this decision affects only Astoria and not any other city municipal courts, and also makes clear the DA has no obligation to appear in Municipal Court.

My office continues to believe there is a strong need for the City and the County to work together to insure that people are held accountable for conduct that endangers not only their lives, but the lives of everyone on the road.  My office has steadfastly maintained a dedication to this ideal and is the reason for seeking this opinion from the Court of Appeals.  

Astorians' best interests are served in Circuit Court, a full court of record, where the roles and responsibilities of the full-time professionals involved are clearly defined and do not change from day to day.

So, it remains up to the City to decide whether it wants to continue to spend money on prosecuting DUIIs in municipal court and, more importantly, where justice is best served for its citizens.


Clatsop County District Attorney v. City of Astoria

(Armstrong, P. J.)
The City of Astoria appeals a judgment declaring that the Clatsop County District Attorney has exclusive authority to control and direct the prosecution of misdemeanor driving under the influence of intoxicants (DUII) offenses committed within the City of Astoria. Both parties also appeal the trial court's declaration that the district attorney is required to attend and prosecute cases in Astoria Municipal Court.

Held: The trial court correctly denied the city's motion to dismiss the action on the ground that it failed to include the necessary parties under ORS 28.110. The text, history, and context of ORS 8.650, ORS 8.660, and ORS 221.229 establish concurrent jurisdiction in the municipal and circuit courts for prosecution of those offenses. 

Accordingly, the trial court erred in declaring that the district attorney had exclusive authority to direct and control those prosecutions. The court also erred in requiring the district attorney to attend and prosecute cases in the municipal court. Reversed in part and remanded with instructions to enter judgment omitting the declarations in paragraphs 4 and 5 and declaring the rights of the parties in accordance with this opinion; otherwise affirmed.

Tuesday, August 5, 2014


I want to thank the remarkable teamwork shown by the Cannon Beach Police Department and the Clatsop County Major Crime Team, and particularly the staff in my office, in the horrible aftermath of the killing of one child and the wounding of another.

It is difficult to deal with people at the worst moments of their life but we also find grace in many of those people.

So, thank you.

Monday, August 4, 2014

Cannon Beach update

Mom Accused of Killing Daughter to Be Arraigned

Mother to appear on charge of killing 2-year-old daughter at Oregon coastal resort

The Associated Press

A woman accused of killing her 2-year-old daughter at an Oregon coastal inn goes to court Monday [today].

Authorities arrested 40-year-old Jessica Smith of Goldendale, Washington, on Sunday in the woods east of Cannon Beach. She's accused of aggravated murder and attempted aggravated murder.

On Friday, a housekeeper found Smith's 2-year-old daughter dead in a room at a Cannon Beach resort. Authorities said Smith's 13-year-old daughter was badly cut, but is expected to recover.

Clatsop County District Attorney Josh Marquis (mahr-kee) says Smith's arraignment is scheduled for Monday afternoon. He says she'll appear by a video feed from jail and is not expected to enter a plea.
He says a defense lawyer may be appointed, and the county grand jury is expected to hear the case this week.

Friday, August 1, 2014

Death Penalty Q&A

By Bryan Denson | 
Email the author | Follow on Twitter 
on July 31, 2014 at 7:40 AM, updated July 31, 2014 at 7:43 AM

"DA and former prison chief debate Oregon's ultimate punishment."

Frank Thompson, left, is a former superintendent of the Oregon State Penitentiary, in Salem; Josh Marquis is the district attorney for Clatsop county. (Karen Jackson (left photo), Beth Nakamura/The Oregonian )

Frank Thompson and Josh Marquis possess strong personalities and opinions. Both have given decades of their lives to law enforcement, the criminal justice system and the public good.

But they stand on opposite sides of the debate on capital punishment.

Marquis is the district attorney in Clatsop County, a 20-year elected official who begins his sixth term in January. He is an outspoken advocate for the death penalty, and has prosecuted capital cases.

Thompson spent three decades in military service, law enforcement and corrections, serving as superintendent of the Oregon State Penitentiary during the executions of Douglas Wright (1996) and Harry Moore (1997).

We sent them an eight-point questionnaire that touches on recent developments in American capital punishment, including "botched" executions and a federal court judge's ruling that the sloth of California's death penalty makes it unconstitutional.

These answers were lightly edited for brevity and clarity.

You both have strong stances on the death penalty. What is your position? When did you first arrive at it? And what were your reasons?

Thompson: I am actively involved in getting the death penalty repealed in the state of Oregon. Becoming an activist for repeal was the result of an evolutionary process that came to a head in 1996, when I was called upon to oversee the first of two executions to take place in over 34 years in Oregon. While preparing for the first, I found that in the face of increasing evidence-based outcomes that capital punishment was a failed public policy on many levels and I could no longer support it. My years of supporting executions had been driven, in part, by emotions. I lost a sister to a violent act; a best friend and a cousin, both Arkansas state troopers, were killed in the line of duty; and I lived through the civil rights era, when scores of activists were murdered. As a public administrator, I came to feel that emotions should not be the driving force for establishing sound public policy.

Marquis: I don't feel I have that 'strong' a position on the death penalty. I feel strongly about intellectual honesty and civility in what is understandably an emotional debate. I believe that if we truly value life, there are a very few crimes and criminals that deserve to die for their horrible crimes. That is precisely the thinking behind the concept of the Nuremburg tribunals and my personal hero, Justice Robert Jackson (who also had ambivalence about the death penalty, as I think all thinking people involved should have.

Have you ever held an alternative view of capital punishment? If so, what was your previous position, and what brought you to the belief you hold today?

Thompson: My previous position was one of support for the death penalty. I changed my position, while preparing to conduct the first execution Oregon had scheduled in 34 years, to oppose the death penalty. I realized that I was training decent, dedicated and loyal public servants to take human life in the name of a public policy that could not be shown to serve the welfare of the general public. This concern was compounded by the fact that there were reasonable alternatives, such as that of sentencing murderers to life without the possibility of parole

Marquis: I grew up opposing the death penalty. Both my parents did, and I remember putting the "Abolish the Death Penalty" bumper sticker on my father's Ford in 1964. I came to understand there were truly evil people, beyond redemption, in the mid-1970s after being a reporter and working in the district attorney's office in Eugene.

Oregon is at a standstill on capital punishment. Gov. John Kitzhaber declared a moratorium on the death penalty, and the Oregon Supreme Court has shown little interest in sending condemned prisoners to their deaths. Would it be smarter – economically, morally, or in the interests of justice – for Oregon to simply abandon capital punishment? Why or why not?

Thompson: In my opinion, Oregon should replace the death penalty with a life without parole sentence that requires offenders to work and pay restitution.  Life without the possibility of release is a just sentence for individuals convicted of aggravated murder. We could then use the monies we save, which now support capital punishment processes, and redirect those savings to make Oregon a safer place by funding crime prevention, victim services and the investigation of cold cases.

Marquis: Gov. Kitzhaber has never hidden his opposition to the death penalty. But in his first term, he allowed the law the people voted on – in 1977 and again in 1984 – to be carried out. Just because the elites of our state, untouched by crime and violence, have "little interest" doesn't matter. This is a populist state that has decided big questions like this by vote of the people. Now the governor has, in my opinion, violated his oath of office and allows his personal views to take precedence over that of Oregonians. The people have spoken, and it isn't up to Kitzhaber or the Oregon Supreme Court to subsume their will. The U.S. Supreme Court has repeatedly rejected claims of unconstitutionality in either the death penalty or its application.

The last executions carried out in Oregon were in 1996 and 1997. Both condemned prisoners, acknowledging guilt, waived appeals and asked to be executed. The state complied. What good or harm came from these executions?

Thompson: I found no good to have come from the administration of the death penalty in the state of Oregon. There are public servants that have been permanently impacted, in negative and personal ways, as a result of having been a part of those executions. There is no reliable evidence that the executions conducted in Oregon have made any of our communities safer. For the same reasons that U.S. District Judge Comac J. Carney recently ruled California's capital punishment practices as being unconstitutional today, it is my belief that, for similar reasons, Oregon's capital punishment practices and outcomes have been and continue to be indictable, and as such, have produced no general public benefits.

Marquis: Two really bad men were executed for multiple murders (each), and just as any truth in sentencing measure, it shows that a sentence carefully reviewed and fairly handed down actually means what it says. Neither of these men are around to kill any more innocent victims – the concept of specific deterrence. As Cass R. Sunstein, a former Obama cabinet member, put it in a 2005 paper: How can you not have capital punishment if in fact a number of studies post-2000 are right in showing a reduction in murders when capital punishment is used.

A federal judge in California recently vacated a prisoner's death sentence. The judge, citing the sloth of the state's executions, wrote that capital punishment violates the constitutional rights of prisoners not to be subjected to cruel and unusual punishment. For most condemned prisoners, he wrote, "systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death." Isn't that also true in Oregon? Couldn't a prisoner facing execution in this state make the same argument?

Marquis: Of course they could, but it's a Catch-22 argument: "I'm owed more due process. But if you give it to me, then you're violating my rights by delaying too long." It's frankly an absurd result likely to be overturned – as previous lower level decisions like this have been – by the U.S. Supreme Court.

Thompson: Oregon's death penalty system has never worked. It is as bad as, if not worse than, the system in California.  For more than 30 years in Oregon, taxpayers have funded an extremely expensive system that has produced  two "voluntary" executions. It is not about to begin working, either.  Instead, we are spending millions and millions of dollars for a death penalty system where virtually every case will end with a life sentence – a result we can get much quicker and easier if we simply replace the death penalty with life without possibility of parole.

Thirty-two states (plus the U.S. government and military) have capital punishment statutes. Many condemned prisoners have languished on death row for a decade – more than 20 years, in some cases. Do you believe, under those circumstances, capital punishment deters people from capital crimes on the outside?

Marquis: While low-murder states don't have the death penalty, some low-murder states (like Oregon) do have it. The murder rate is down significantly in the United States, and particularly in places like Harris County, Texas, which imposes the death penalty more than any other county in the nation. [Editors note: Harris County has executed 116 prisoners since 1996.]

Thompson: In 2012, the National Academies National Research Council, the most respected independent research organization in the land, examined three decades of research on whether or not capital punishment is a deterrent to the commission of crime. The council concluded that the research is not useful and discourages the use of any study supporting the use of the death penalty as a deterrent in making public policy. Other than Mr. Marquis, no one believes capital punishment deters. I would like to ask Mr. Marquis: Where in Oregon are the people who decided not to murder for fear of being executed, but who would have carried out the act if they were in some way assured of getting life without parole?

Many Americans seem to believe innocent people have been executed. Has any condemned prisoner in the U.S. been executed for a crime they did not commit?

Marquis: Polls show 70 percent of Americans who support capital punishment also believe innocent men were executed. While it certainly happened in the past, in the modern era of capital punishment (after the 1976 U.S. Supreme Court ruling in Gregg v. Georgia) there is not a single documented case of a wrongful execution. The literal cover boys – Roger Coleman, on the cover of Time magazine in 1992, and Ricky McGinn, on the cover of Newsweek in 2000 – both claimed to be innocent. Yet in both cases, subsequent DNA tests showed they had both raped and murdered their victims.

Thompson: People who support the death penalty will say there has been no proof of an innocent person having been put to death since executions resumed in the 1970s. This cannot be refuted if you go by their definition of innocence. By that definition, an innocent person would be one whose innocence is accepted and documented in official records of a court, or reflected in a statement of innocence as might be offered by a prosecutor. Since there is no process in the U.S. to recognize post-execution exoneration, the question cannot officially be responded to. However, the Center for Wrongful Convictions has determined that at least 39 executions have been carried out in the United States in face of compelling evidence of innocence or serious doubt about guilt.

Three prisoners from outside Oregon have been executed by lethal injection since January in what news media have referred to as "botched executions." The latest account was a prisoner in Arizona, Joseph Wood, whose execution took two hours. Accounts have differed on what happened. Have these executions been botched? What's going on?

Marquis: The anti-death penalty elites have succeeded in blocking access to the exact same drug used by veterinarians to euthanize dying animals, and, in a most ironic twist, the same drug most commonly used for doctor-assisted suicide in Oregon and Washington: sodium thiopental. Instead, states are forced to come up with other drug combinations such as the exact same one used for anyone who undergoes a colonoscopy. There is no execution that could ever be kind enough, blissful enough, to satisfy those opposed to the death penalty. We are, after all, killing the worst criminals in our society. Does this really mean they deserve an absolutely painless death?

Thompson: Uncertain outcomes in executions are increasing because of waning public support for the administration of the death penalty. The already exorbitant costs and ills of these outcomes make it difficult to find proactive support for the process in any meaningful and productive way. This leaves our public servants in a lurch to make capital punishment work through trial and error, and experimentation (with humans as guinea pigs).

the story at the Oregonian's website:

Tuesday, May 20, 2014

Primary Day 2014

This year’s primary election is most important for electing a majority of our county commissioners. Most of the other offices are unopposed, and voters often don’t even bother to fill in the oval, but I hope you will for district attorney.

While my name may be appearing alone on the ballot Clatsop County voters received in the mail, I have long understood that no one in public office should take elected position for granted. I therefore have run a modest campaign for re-election as your district attorney, buying a few newspaper advertisements in our local papers and a page in the voters’ pamphlet.

I neither asked for nor accepted offers of financial contributions for the ads from inside Clatsop County. I hold a strong belief in the principle that everyone should receive equal treatment under the law, and wouldn’t want anyone to think the district attorney might go easy because of a donation.

The Clatsop County District Attorney’s Office has an outstanding staff of lawyers, legal assistants and victim advocates, and one of the lowest turnover rates of any district attorney’s office in the state. I am extremely proud of their commitment to making firm, but fair justice on behalf of our citizens.

If you want to be popular or run for higher office, being district attorney is not the job for you. I stand up to what I consider unfair treatment of others by all alike, whether it’s your basic criminal or another government official.

So far, the voters have agreed with me. Many thanks to the hundreds of citizens who have stopped to tell me so, in the post office or a store or a restaurant. I am your district attorney, and I’m always available by phone or email (, although the answer to your question may not be the one you were wanting.

I promise this: My office will continue to be prudent with your tax dollars (having stayed within budget for all 20 years I have been in office). We will make sure the voice of the victim is never silenced. And we will temper justice with common sense.

I would very much appreciate your vote to allow me to keep serving as your Clatsop County district attorney.

[Letter to the Editor published in the Daily Astorian, Friday, May 16, 2014]

Monday, April 14, 2014

A rampant and epidemic lie

Hello and Happy 2014. Running for re-election (May 20 -- NO contributions, please) along with work, family, and that virus that's been going around, has diverted me from writing for the past while. I have several things to catch you up with, including a ridiculous LIE.

Around New Year's the Los Angeles Times and then the New York Times published editorials claiming prosecutorial misconduct was "epidemic" (LAT) and "rampant" (NYT).  Their sole source for the claim is the extremely quirky and uber-libertarian 9th US Circuit Court of Appeals Judge Alex Kozinski. I follow the usually anti-law-enforcement 9th Circuit closely, have had dinner with Kozinski, and am published with him in a collection of essays about capital punishment, Debating the Death Penalty (Oxford University Press, 2005).

In the Olsen case, Kozinski and a couple other 9th Circuit judges on the uber-left political fringe bitterly dissented over the 9th Circuit's majority refusal to agree with the defendant's claim that a federal prosecutor's actions during the trial amounted to "egregious misconduct" and therefore his conviction should be thrown out.

When a judge screws up, a case is merely reversed. When a defense attorney doesn't do her job, it's called ineffective assistance of counsel. And even the American Bar Association (overwhelmingly defense attorneys) has voted to start differentiating between genuine, malicious (and extremely rare) prosecutorial misconduct, and simply prosecutorial error. That's how it should be.

I drafted an Op-Ed in response to the editorials, but was delayed in submitting them and then it became too late for the papers to run it. It received a good response from my colleagues at the National District Attorneys Association. I append it just below, followed by the LA Times and NY Times editorials.

Draft Op-Ed in response to NY Times and LA Times on "rampant" and "epidemic" prosecutorial misconduct. 

The sudden clamor about "rampant prosecutorial misconduct" is the result of a minority dissent from the usually extremely pro-defendant 9th U.S. Circuit Court of Appeals in the Olsen case. Judge Alez Kozinski, the controversial uber-libertarian chief judge, drafted a minority opinion in which he was joined by former chief judge Stephen Reinhardt, generally identified with the much more defense-oriented wing. While the rarified air of the editorial board may have succumbed to Kozinski's turgid prose, a reading of the majority opinion (the one that matters) yields a very different result.

Kozinski may be something of an legal "wunderkind", being appointed to the federal bench in his early 30s. But he has never served as a trial lawyer, let alone a prosecutor. To damn the entire profession of prosecutors in America based on the tiny number reviewed by his panel of a federal appeals court would be like ascertaining judicial integrity based on the recent sentencing habits of judges in Alabama and Montana, who gave what amounted to a free pass to convicted child molesters. Fortunately, those judges are the exceptions, not the rule.

The Olsen case was conducted in federal courts, where only 5 percent of all prosecutions in America are set. The defendant claimed the prosecutor had committed a Brady violation -- where a prosecutor fails to disclose known exculpatory or helpful information to the defense. Such violations usually result in the reversal of a conviction and can have catastrophic consequences for the career of any prosecutor who commits such an act.

What at first glance may seem like a simple rule -- that prosecutors have a duty to seek justice first and only then seek convictions -- becomes much more nuanced when you look at actual Brady decisions.

For example, prosecutors are imputed with the knowledge of police officers who don't even work for them. Let's say a five-agency task force arrests a guy for drug dealing. One officer working the periphery of the case may have spoken to a woman who claimed to have information about the guy, but the officer found the woman kind of batty and ignored her, failing even to write a report. As the case lurches through the several levels of appeals, a defense investigator may uncover that what the woman would have said (if she'd been asked) would in fact have helped the defendant, if not by completely exonerating him then perhaps by reducing his role in the criminal enterprise.

Under the current interpretations of Brady, the prosecutor (particularly in a large office with hundreds of assistants) is deemed to know EVERYTHING that every other prosecutor was ever told (even going back decades to before that particular prosecutor entered law school) or, in this example, and to be responsible for the failure to follow-up by what appeared during the initial investigation to be a minor witness.

For most of us who prosecute for a career -- not as a step to six- and seven-figure incomes defending white-collar defendants -- the worst possible trial outcome is not an acquittal. Any of us worth our salt have lost cases where the defendant was clearly guilty. No, the worst nightmare of any prosecutor is convicting someone who is innocent of that offense. For that reason, many prosecutors' offices have established elaborate protocols to ensure that questionable witnesses are not relied upon and to ensure that any information, no matter how minor, calling the case into question will be disclosed.

Ninety-five percent (95%) of prosecutions are conducted by elected state and county prosecutors like myself, who in addition to being accountable to the trial and appellate courts also face review by their state Bar associations and ultimately the approval -- or wrath -- of voters. Those of us who are seen as cutting corners to win usually find ourselves unemployed, as we should.

America's prosecutors are proud of their role in a system that does everything it can to exonerate the innocent and hold the guilty accountable.

Joshua Marquis


A respected judge warns of an epidemic of violations of the so-called Brady rule, which holds that prosecutors must turn over evidence favorable to the accused.
By The Times editorial board
December 29, 2013

In 1963, the Supreme Court established a rule of evidence that is now well known to viewers of television courtroom dramas. In Brady vs. Maryland, it held that prosecutors must turn over to defense attorneys evidence favorable to the accused and "material either to guilt or punishment." But prosecutors, including in Los Angeles, have complied grudgingly with the Brady rule. Some have ignored it altogether.

Now a respected federal appeals court judge has warned of "an epidemic of Brady violations abroad in the land." Chief Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals sounded the alarm in the case of Kenneth Olsen, a Washington state man convicted of developing a biological agent for use as a weapon. Kozinski argued that Olsen should have had his conviction thrown out.

The evidence against Olsen took two forms: voluminous records of his browsing the Internet for information about poisons (which Olsen attributed to his own curiosity about "strange and morbid things") and a bottle of allergy pills found in Olsen's possession that allegedly contained ricin.

The defense argued that a forensic scientist with the state police who analyzed the pills before they were sent to the FBI may have contaminated them. But the argument wasn't as strong as it could have been because prosecutors had failed to turn over information about an investigation of the scientist's work in other cases that found fault with his "diligence and care in the laboratory, his understanding of the scientific principles about which he testified in court, and his credibility on the witness stand."

Despite this lapse, a three-judge panel of the 9th Circuit upheld the conviction, citing "reasonable probability" that the jury would have found Olsen guilty even if it had known about the investigation. As Kozinski notes, this approach guts the Brady rule by telling prosecutors they need not turn over exculpatory evidence "so long as it's possible the defendant would've been convicted anyway."

Kozinski argues that this case is representative of an "epidemic" of Brady rule violations. He cites a string of decisions, including a 2012 case in which the Supreme Court by an 8-1 vote ordered a new trial for a convicted murderer because prosecutors had withheld crucial information.

Kozinski is right: Courts need to deal more harshly with prosecutors who don't play fair. The message, he says, should be, "Betray ... and you will lose your ill-gotten conviction." Congress and state legislatures can do their part by enacting laws such as a model statute developed by the National Assn. of Criminal Defense Lawyers that would make it harder for prosecutors to evade their Brady obligations. Prosecutors need to stop playing games with Brady.

Copyright © 2014, Los Angeles Times

The New York Times
Rampant Prosecutorial Misconduct

In the justice system, prosecutors have the power to decide what criminal
charges to bring, and since 97 percent of cases are resolved without a trial,
those decisions are almost always the most important factor in the
outcome. That is why it is so important for prosecutors to play fair, not just
to win. This obligation is embodied in the Supreme Court’s 1963 holding in
Brady v. Maryland, which required prosecutors to provide the defense with
any exculpatory evidence that could materially affect a verdict or sentence.

Yet far too often, state and federal prosecutors fail to fulfill that
constitutional duty, and far too rarely do courts hold them accountable.

Last month, Alex Kozinski, the chief judge of the United States Court of
Appeals for the Ninth Circuit, issued the most stinging indictment of this
systemic failure in recent memory. “There is an epidemic of Brady
violations abroad in the land,” Judge Kozinski wrote in dissent from a
ruling against a man who argued that prosecutors had withheld crucial
evidence in his case. “Only judges can put a stop to it.”

The defendant, Kenneth Olsen, was convicted of producing ricin, a
toxic poison, for use as a weapon. Federal prosecutors knew — but did not
tell his lawyers or the court — that an investigation of the government’s
forensic scientist, whose lab tests were critical to the case, had revealed
multiple instances of sloppy work that had led to wrongful convictions in
earlier cases. A state court found the scientist was “incompetent andcommitted gross misconduct.”

Yet the majority of the federal appeals court panel ruled that the
overall evidence of Mr. Olsen’s guilt — including websites he visited and
books he bought — was so overwhelming that the failure to disclose the
scientist’s firing would not have changed the outcome.

This is the all-too-common response by courts confronted with Brady
violations. Judge Kozinski was right to castigate the majority for letting
the prosecution refuse to turn over evidence “so long as it’s possible the
defendant would’ve been convicted anyway,” as the judge wrote. This
creates a “serious moral hazard,” he added, particularly since prosecutors
are virtually never punished for misconduct. According to the Center for
Prosecutor Integrity, multiple studies over the past 50 years show that
courts punished prosecutorial misconduct in less than 2 percent of cases
where it occurred. And that rarely amounted to more than a slap on the
wrist, such as making the prosecutor pay for the cost of the disciplinary

Brady violations are, by their nature, hard to detect, but Judge
Kozinski had no trouble coming up with more than two dozen examples
from federal and state courts just in the last few years, and those are surely
the tip of the iceberg. According to the National Registry of Exonerations,
43 percent of wrongful convictions are the result of official misconduct.

The Brady problem is in many ways structural. Prosecutors have the
task of deciding when a piece of evidence would be helpful to the defense.
But since it is their job to believe in the defendant’s guilt, they have little
incentive to turn over, say, a single piece of exculpatory evidence when
they are sitting on what they see as a mountain of evidence proving guilt.
The lack of professional consequences for failing to disclose exculpatory
evidence only makes the breach of duty more likely. As Judge Kozinski
wrote, “Some prosecutors don’t care about Brady because courts don’t
make them care.”

Courts should heed Judge Kozinski’s call, but it will take more than
judges to fix the problem. Prosecutors’ offices should adopt a standard“open file” policy, which would involve turning over all exculpatory evidence as a rule, thus reducing the potential for error.

Fighting prosecutorial misconduct is not only about protecting the
innocent. It is, as Judge Kozinski wrote, about preserving “the public’s
trust in our justice system,” and the foundation of the rule of law.

A version of this editorial appears in print on January 5, 2014, on page SR10 of the New York
edition with the headline: Rampant Prosecutorial Misconduct.

© 2014 The New York Times Company

Friday, January 31, 2014

Re-election campaign news release

Here's the news release submitted to papers around the county today. Look forward to your support!

Clatsop County District Attorney Josh Marquis has filed for re-election.

"This is the job I love and the job I intend to keep, so long as the voters honor me by re-hiring me in May," he said.

Marquis was first elected in 1994 and continues to do hands-on work in court, participating in everything from daily arraignments to felony trials.

"I enjoy being an administrator, but I don't want to forget what it's like to stand before a judge and jury."

Among his accomplishments as District Attorney, Marquis pointed to his successful conviction of Pacific Surimi, which led to returning more than half a million dollars to local fishermen. The settlement included charitable contribution of over $300,000 which Marquis donated to the Oregon Community Fund to create the Clatsop County Endowment, with grants available to any non-profit in Clatsop County.

In addition to his work as the county's top prosecutor, Marquis is completing 17 years as Oregon's representative to the National District Attorneys Association (NDAA). His NDAA work has helped secure free, continuing education for more than 700 Oregon prosecutors at the NDAA's National Advocacy Training Center

Marquis has also served four years on the American Bar Association’s Criminal Justice Section and has remained active in animal law, with the Animal Legal Defense Fund and the Humane Society of the United States.

“I made a promise to the county administration and to the citizens when I started working with these organizations that I would not spend county funds on out-of-state travel. I’ve kept that promise and will continue to,” Marquis said.

Marquis has worked closely with Senator Betsy Johnson on laws that protect victims and toughen up the Oregon’s DUII laws. He also helped write the state’s first felony animal abuse law.

In community service, Marquis helped found the Lighthouse Center for Abused Children, and is a two-time Paul Harris Fellow and 20-year member of the Astoria Rotary Club. 

In summer theater, he plays the role of the Sheriff in the Astor Street Opry Company's "Shanghaied in Astoria." 

Marquis hosts “Evening Jazz” on Coast Community Radio (KMUN 91.9fm, KTCB 89.5fm) the first and third Mondays of each month, and is working on his 4-gallon pin as a regular donor to the American Red Cross blood drives.  

Marquis enjoys visiting high school and community college classes to talk about our justice system and the Constitution.

Marquis and his wife, Cindy Price, a writer, researcher and editor, live in central Astoria

“Cindy and I love what we affectionately call Clatsopia, perhaps especially the life and beauty of the Columbia. We’re committed to this magnificent place and to participating in protecting its beauty and the best parts of its history.”

Marquis said he won't be asking for campaign contributions from Clatsop County residents, to reduce the appearance of any political influence on the office of District Attorney.

Retired Astoria bank manager Judy Hansen is serving as the Keep Josh Marquis Our District Attorney's campaign committee treasurer.