Tuesday, December 8, 2015

Loopholes in domestic violence cases

Speaking out on loopholes in domestic violence cases. In Oregon a Municipal Court is NOT a court of record and the abuser/defendant gets a whole second trial if he doesn't like the result. Fortunately in Clatsop County (and most of Oregon) domestic violence cases are referred straight to the "court of record" - Circuit Court.

CBS News NFL domestic violence case shows system's flaws

Dallas Cowboys defensive end Greg Hardy may have avoided domestic violence charges for the assault of his ex-girlfriend, Nicole Holder. But he has not been able to dodge public condemnation following the release of photos showing a badly bruised Holder.

The photos confirm what Holder told police on the night of May 12, 2014 -- that Hardy, then a Carolina Panthers player, had choked her and tossed her on a futon covered with firearms in his Charlotte apartment.

While the photos further fueled the debate about the NFL's domestic violence policy, the question remains as to why a North Carolina court dismissed Hardy's assault charges. A CBS News analysis reveals that a loophole in the state's domestic violence law is allowing many abusers to walk away scot-free.

Mike Sexton
Mike Sexton
"The laws themselves are archaic [in North Carolina]," said Mike Sexton, Domestic Violence Information and Education Specialist at Mecklenburg County Women's Commission. "Right now, if you were to drag your girlfriend or your wife down the street it would be a misdemeanor, but if you did that to your dog, it would be a felony."

Under North Carolina law, many domestic violence cases are tried as misdemeanors in district court as a means of saving time and money. These courts are "not of record," meaning a transcript of the testimony is not kept when defendants, like Hardy, plead their case to a judge without a jury.

Defendants who are found guilty in district court can challenge the decision in superior court where a form of appeal known as "trial de novo" essentially gives all defendants a second trial. Trial de novo sets the stage for a new trial, this time with a jury, as if no prior trial had been held. Similar legal practices exist in other states including Utah, New Mexico, Virginia and Colorado.

In July 2014, Hardy was found guilty by Mecklenburg County District Court Judge Becky Thorne Tin and sentenced to 18 months' probation for assaulting his ex-girlfriend and verbally communicating threats. But after appealing to superior court where trial de novo favored the NFL player, Hardy's case was dismissed due to the state's inability to get the accuser to testify again. Last month, his domestic violence record was expunged by a superior court judge.

"It's hard enough to get the victim to show up for one trial and doubly difficult to get them to show up for two," said Joshua Marquis, a spokesperson for the National District Attorneys Association and District Attorney in Astoria, Oregon. "As prosecutors, we are bitterly opposed to any procedure that gives the defendant two free bites of the apple and more importantly [one] that subjects victims, particularly domestic violence victims, to repeated examination. They endure enough trauma as it is."

Also complicating the prosecution of domestic violence cases is victim intimidation. Amber Leuken Barwick of North Carolina Conference of District Attorneys says too many victims file charges and then drop them out of fear or shame.

Ruth Glenn
Ruth Glenn
Ruth Glenn, Executive Director of the National Coalition Against Domestic Violence, described the current appeal process as not effective saying, "The appeal system for domestic violence cases is not justice or victim-centered" and is a "classic example of why victims are sometimes reluctant to come forward."

In some states like California, New York and North Carolina, prosecutors can continue to pursue charges even after a domestic violence victim chooses to drop them under what is called a "no-drop policy."

Ironically, even with such policies, some domestic violence cases cannot advance without a victim's testimony due to the 6th Amendment Confrontation Clause of the U.S. Constitution, which gives the defendant "the right to confront witnesses against him or her," explained Barwick.

Overcoming this obstacle causes many domestic violence cases such as Holder's to come to a halt.
"It's just a shame when a victim has the strength to testify in the first trial but it's basically rendered meaningless just to go through it again," said Teresa Garvey, Attorney Advisor with AEquitas: The Prosecutors' Resource on Violence Against Women.

The High Point police department, just 75 miles north of Mecklenburg County, is looking to change that and make sure cases are not wrongly dismissed.

In order to hold offenders accountable for their actions, Chief Marty Sumner is compiling criminal histories, which can lead to longer sentences and more prosecutions.

"Our entire response system is very much set up to take all the responsibility off the victim so that it is totally on the police and the state," said Sumner.

read it on the CBS News website

Monday, November 30, 2015

Oregon Supremes uphold Guzek death penalty

After three previous remands - and $3 million in costs - fourth sentencing stands

POSTED: 10:36 AM PST November 27, 2015   
UPDATED: 11:49 AM PST November 28, 2015 
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BEND, Ore. -
Nearly 30 years after the brutal 1987 slaying of a Terrebonne couple – and after court costs topping $3 million – the Oregon Supreme Court on Friday rejected convicted killer Randy Lee Guzek’s appeal of his fourth death sentence, affirming that penalty for the first time and refusing to remand the case for a fifth sentencing trial in Bend.

Guzek was 18 at the time of the brutal slayings of Rod and Lois Houser and was convicted of two counts of aggravated murder in 1988. The Oregon Supreme Court affirmed those convictions in 1990, but three times prior had ordered new penalty-phase trials under the automatic reviews required in the state court and death penalty process.

Two other men involved in the shooting and stabbing deaths, Mark Wilson and David Cathey, received life sentences after testifying against Guzek, who is one of 36 people on Oregon's death Row. The state hasn't executed anyone since 1997.

In March of 2014, four years after his last death sentence, Guzek’s attorneys filed a nearly 900-page brief raising 87 “assignments of error” – all but 13 of which the high court summarily rejected without discussion in Friday’s 31-page ruling, its first to uphold a death sentence imposed on Guzek.

The two categories of claims the court rejected included the requirement that Guzek wear a “stun belt” during the latest remanded death penalty proceedings and that the trial court gave improper instructions to the jury on how to consider Guzek’s in-court statement.

Guzek had claimed an alibi – that he was at home when the murders occurred – and while that defense was used at the original trial in 1988, using it in later proceedings became a point of contention. The U.S. Supreme Court ruled in 2006 that the defense could not be used for retrial.

Clatsop County District Attorney Josh Marquis is the former Deschutes County prosecutor who handled the last three sentencing trials and would again have been special prosecutor if a retrial was ordered.

He told NewsChannel 21 that Friday’s ruling ends the automatic appeals in state court – but does not mean Guzek has run out of appeals. However, courts that receive any future appeals would have the discretion of deciding whether to hear them or not.

As a result, “This (ruling) is very gratifying for me and the Houser family – I spoke to one of them this morning,”  Marquis said.

“I would never use the word ‘closure' – it’s a stupid word – but there is some degree of finality with the decision,” the prosecutor said. “I probably will never appear with Randy Lee Guzek in court again, which makes me very happy.”

Marquis noted that over the past quarter-century, "48 Deschutes County jurors have said he deserves the death penalty. All had to say yes – if one said no, he wouldn’t be on death row.”

In fact, if the death penalty was overturned in some formal fashion, Guzek might have been eligible for parole, as the “true life” sentence without possibility of parole was not an option at the time of his original conviction.

Five years ago, at his last death penalty sentencing trial in Bend, Guzek wrote a five-page brief that rejected the judge’s request that he let jurors consider the option of “true life,” Marquis said.

Marquis said “a lot of the credit” for the eventual successful outcome should go to the original Bend murder trial prosecutor, Ron Brown – now his chief deputy DA in Astoria. He also credited state Assistant Attorney General Timothy Sylvester, who argued the most recent case on the state’s behalf.

On the stun belt matter, Marquis noted that the issue of restraints is a “Catch-22 for those in the system."
"Someone in a convicted murder case can’t wear visible shackles – that’s clearly against constitutional law," Marquis said. "This belt, which has gotten smaller and smaller – and now is basically a wrist band – is extremely humane and has ever been activated in the 20 years used in Oregon. I even offered to have the damn thing put on me and be shocked, to show it’s not dangerous.”

Marquis noted Guzek's "allocution" is an in-court statement by the defendant to the jury that is not under oath or subject to cross-examination, "and it's not really evidence." He said the court basically found what he was allowed to do did not violate state law or the Constitution, and upheld the jury instructions given by the judge (visiting, now-retired Judge Jack Billings of Eugene).

Guzek still could bring “collateral appeals” in the federal court system -- something Marquis said he fully expects -- or a “post-conviction relief” case in state court, claiming his constitutional rights were violated.
“It’s never completely, fully over until he dies of natural causes, is executed or runs out of appeals, or instructs his lawyers, as in the Timothy McVey case, not to continue appeals,” Marquis said. From what I’ve learned in the 20 years I’ve spent on the Guzek case, I’d be astonished if he waived any appeals at all.”

But in future appeals, “the arguments are much more legal ones, and not sufficiency of the evidence,” he said.

Guzek, now in his mid-40s, has at this point been on Oregon’s death row longer than anyone else, said Marquis, who has argued a strident defense of the death penalty in books and in debates from the University of Oregon to the European Parliament.

The death penalty issue remains highly political, with former Gov. John Kitzhaber stopping executions four years ago and current Gov. Kate Brown extending that moratorium, for now as she works with a small group of advisers to decide what stance to take on the matter.

Marquis said numerous polls have shown a strong majority of Oregonians support the death penalty.

“This is a sanction rarely sought, rarely imposed – that’s the way it should be," he said.



Monday, September 14, 2015

What I'm reading

The Daily Astorian has a new feature, asking contributors to write about what they are reading. Here is my submission:

The Daily Astorian invites people to submit titles of books they are reading and share a few thoughts about the work. This week, Clatsop County District Attorney Josh Marquis shares some of his favorite books. Marquis, the district attorney since 1994, is a voracious reader. His parents didn’t allow a TV in his home until he was 16, to make sure he read. He is a frequent author of op-ed pieces in newspapers including The Daily Astorian, The New York Times and USA Today, and co-authored a book on capital punishment in 2005. To submit, send to news@dailyastorian.com

Rereading a good book is like visiting an old friend after time and circumstance have separated you.
I recently reread with great pleasure one of my two favorite books, Philip K. Dick’s “The Man in the High Castle.” (The other is Ursula Le Guin’s “Lathe of Heaven.”)

Dick, known as PKD, was a prodigious consumer of illicit drugs and an equally prolific author. He is best known to many for the movies that were made from his books and short stories — “Blade Runner” from “Do Androids Dream of Electric Sheep?”; “Total Recall” from “We Can Remember It For You Wholesale,”; “Minority Report” and others.

Written in 1962, “The Man in the High Castle” (now an Amazon TV series to be aired later this fall) posits an alternate-history America in which the United States lost World War II. Nazis occupy the eastern U.S., Japanese occupy the western states, and a buffer neutral nation called the “Rocky Mountain States of America” lies in between.
I don’t think you need to be a fan of science fiction to appreciate the many-layered themes.
Like in PKD’s other novels, the characters face challenges to their basic assumptions about themselves, their world, and their relationship to it. Without revealing too much, as I hope others will enjoy what has brought me many good hours of reading, the book references a key character who is the author of a “book inside the book” — “The Grasshopper Lies Heavy” — an alternate history of WWII in which the United States wins the war.

A few months ago, my wife Cindy and I visited one of her dearest friends, a senior Foreign Service officer at the U.S. Embassy in Moscow. It was my second trip, the first was with my father in 1990, near the end but still very much the Soviet Union. Our host loaned me “The Forsaken,” a grim and virtually unknown history of the migration of thousands of idealistic, if very naive Americans to Stalin’s Russia in the early 1930s. Some were members of the American Communist Party, but most were younger men and their families, skilled workers unable to find jobs in Depression-era America.
The author, Tim Tzouliadis, a Greece-born English documentarian, vividly describes the despair and hopelessness many ordinary workers felt before Franklin Roosevelt was able to implement the New Deal and programs like the Works Progress Administration. Tzouliadis is unsparing in his revelations of the extreme brutality, in fact genocide, committed by Stalin against, among others, the Ukrainian people, or anyone the increasingly paranoid leader felt threatened by. The author notes with disgust how the wealthy American ambassador to Russia, Joseph Davies and his wife, watched silently as American citizens begged to return to the U.S., only to be dragged off by the NKVD, the secret police that preceded the KGB and, today, the FSB.

“The Forsaken” reminds us that what we think we know as “history” is often written by the victors or, in this case, those who survived.

Most recently I read an exposé by a long-retired investigative journalist, William Crawford, who won a Pulitzer Prize in 1973 writing for the Chicago Tribune. Now he has written a shocking and revealing book about corruption in the Chicago justice system.

“Justice Perverted” is the story of how a well-known professor at Northwestern University’s Medill School of Journalism helped ensure that Anthony Porter, almost certainly guilty of a vicious 1982 double homicide, was released from prison and pardoned by Illinois’ then-Gov. George Ryan (who ended up in federal prison for his own corruption).

This isn’t the usual story of bad cops framing an innocent man. “Justice Perverted” tells the well-documented story of how the lawyers, the judges, the prosecutors, the press, and academia — all the people who should have stopped it — conspired to uphold the modern “narrative” that innocent men are regularly convicted of crimes they did not commit. What’s worse, they were all willing to sacrifice Alstory Simon, a genuinely innocent man, to prison to make their narrative work.
Through the National District Attorneys Association I’ve become acquainted with the relatively new Cook County prosecutor, Anita Alvarez. To her great credit, she freed Simon from prison last fall, citing the massive injustice perpetrated to advance the careers of many, at the cost of a man’s freedom.

The books by PKD and Crawford, utterly unrelated other than by my reading habits, warn us that the conventional wisdom is not always what it seems.

Read it on the Daily Astorian's website

Monday, May 11, 2015

Casey Foundation distorts juvenile arrest rates

Tuesday, February 24, 2015

A grand jury reform bill?

Guest column: State doesn’t need grand jury reform bill

For The Daily Astorian
There is a growing effort in Salem, led by Rep. Jennifer Williamson, D-Portland, to make a “basic reform” that would “increase transparency” of grand jury proceedings.
SB-365, co-sponsored by Sen. Jeff Kruse, R-Roseburg, proposes to record all questions and answers in grand jury proceedings and make them immediately available to the defense attorneys.
The proposal has gained the approval of The Oregonian  and is on the fast track to approval.
But, like many bills, SB-365 is a solution to a problem that doesn’t exist in Oregon. The only documented case of grand jury abuse in Oregon in the last quarter century happened here in Astoria in 1993. That summer, then-District Attorney Julie Leonhardt, angry at the Astoria Police for not giving “special treatment” to her boyfriend on a reckless driving charge, somehow got the grand jury to charge two police officers of felonies which they had never committed and for which there was no evidence. Leonhardt’s plan fell apart quickly because Oregon grand jury indictments, then and now, must bear the names of any witnesses who testify.
Leonhardt was barred from office by the governor, indicted, recalled, convicted, jailed and eventually disbarred.
Grand jurors are seven people picked at random by court staff. They serve together for two months, act as a check and balance on the power of the district attorney and take an active role in asking questions and deliberating on the cases that come before them. I’ve asked several former grand jurors their opinion of this bill. They think it’s a lousy idea.
If the bill passes, every question by every grand juror, every answer by every witness, will be recorded, primarily to give defense attorneys the opportunity to challenge indictments and to confront victims with any inconsistent responses. My educated guess is that a substantial number of vulnerable victims, who are often terrified of the court system, would simply refuse to testify. The bill will have a particularly chilling effect on victims of child abuse, sex abuse and domestic violence.
SB-365 will not bring Oregon into line with more than 30 other states. Most states, including Idaho and California, forego grand juries in favor of preliminary hearings, a public minitrial without a jury. They are time-consuming and expensive, but do “preserve” testimony, should a witness vanish, refuse to testify again or claim later they can’t remember. Should SB-365 pass, many prosecutors, including myself, may well decide to conduct preliminary hearings on tougher cases. Although the method is different, the outcome is the same: recorded testimony.
You can’t simply drop a $40 recorder on a table and call it good. Each of the three courtrooms in Clatsop County is outfitted with microphones and a recording system that is operated by the courtroom’s judicial assistant. Each recording is marked, timed, logged and secured. The county bore all the cost of including a dedicated grand jury room when it renovated the courthouse a few years ago. Installing a recording system would likewise be on the county’s dollar.
The Oregonian admitted that, “It’s worth noting that secrecy in itself is not a bad thing. The confidential nature of grand jury proceedings means that those who are about to be indicted won’t have advance warning and take off, for instance. Those whom the grand jury declines to indict are never publicly identified, either — saving them from being unfairly stigmatized.”
No prosecutor, no grand juror, wants to charge an innocent person with a crime. We simply don’t have a history of that happening, either in Clatsop County or Oregon. The cost of this bill, both in money and in the trust of victims, is too high. If the legislators truly want to create more “transparency,” why not change the evidence code to allow jurors to know a defendant’s actual criminal history?
At the heart of any “reform” should be an existing injustice. SB-365 is a solution in search of a problem. It only addresses No. 1 on the wish list of the one group who will benefit from it, criminal defense attorneys.
Hundreds of Clatsop County citizens have served as grand jurors just while I’ve been Clatsop County’s district attorney. They are your friends, family, your neighbors. Ask them about what they think of the idea,and how difficult it is to get people often at the worst moments of their life tell their story truthfully and completely.
Joshua Marquis was just sworn in last month to his seventh term as Clatsop County District Attorney.

Monday, February 9, 2015

New Yorker Festival, October 2011

In October 2011, I was one of four panelists invited to discuss capital punishment at the New Yorker Festival. The panel also included Innocence Project founder Barry Scheck, death penalty opponent Danalynn Recer, and crime victim's advocate Marc Klaas.  CNN's Jeffrey Toobin moderated the event at the Directors Guild Theater in Manhattan, New York City.

The video has recently been posted to YouTube. Here it is in full, about an hour and a half of a very interesting debate.