Sunday, October 22, 2017

Speech to Parents of Murdered Children

For the second time in five years, Parents of Murdered Children, the non-partisan support group for the families of the murdered, invited me to speak at their remembrance ceremony. It was an honor to be with the families, and to discuss accountability and forgiveness. The talk was given in Oregon City on September 25, 2017.

Thank you for inviting me back for this solemn memorialization of this wall and the sad task of adding names to the wall of remembrance.

I need to say a word of remembrance for possibly the greatest pioneer of victims’ rights in this state - Dee Dee Kouns, who died last week at 89. Dee Dee and her late husband Bob never ceased fighting for murder victims -- their daughter and the all too many other victims represented on these walls and by those of you here today. I remember Dee Dee from the tough political days of the mid-1980s, when those who stood up for victims’ rights were accused of trying to undercut civil rights. Times have changed.

Since I last spoke to you we also lost Hardy Myers, long-time Attorney General and champion of victims’ rights. Bob and Dee Dee had a great deal to do with changing Hardy's view of the rights of victims, so thank you Dee Dee, for all your work.....for all those years.

Thanks to Clackamas County DA John Foote, who was Dee Dee’s good friend for many years, right up to her sudden death this week. John has been an outspoken leader in the prosecution community on behalf of victims’ rights. You here in Clackamas County are lucky to be represented by him, but I suspect you don't need me to tell you that......!

As I approach the end of my career in trying to hold accountable those who tear and attempt to destroy the lives of others, I am reminded of the advice I gave a newly hired Deputy District Attorney, something that happens less often as the profession of prosecution becomes much more of a career and a lifelong mission and less of a stop-over en route to seven-figure salaries and second homes.

That advice is never to say to a family member 'I KNOW WHAT YOU ARE GOING THROUGH.” Unless she or he has had the have horrible experience of losing a family member to murder, they cannot say "I KNOW WHAT YOU'RE GOING THROUGH."

Over the 32 years I have been prosecuting homicide cases I have come to form deep, long-lasting relationships with the family members of murder victims. I never cease to be amazed by their grace, their dignity, and most of all their incredible eloquence.

But sitting through trials with family members, explaining the decades-long appeals process, or attending the scene of a brutal murder when the smell of blood, like copper, never seems to leave, is NOT the same as what you and other family members have been through.

I detest the phrase "closure" and find myself snapping back at legislators or attorneys who use the expression too easily, implying that like an expiration date on a bottle of prescription medicine, the family can expect to have resolved all their feelings by some arbitrary date or juncture in the justice process. The criminal justice system can...sometimes....achieve a measure of FINALITY, but never "closure."

For over 20 years I prosecuted a brutal killer named Randy Guzek. The name Guzek matters little. The good people he gunned down in the summer of 1987 were Rod and Lois Houser. Like virtually all murder victims for whom it has been my honor to speak as the prosecutor of their killers, I never knew Rod or Lois in life. In the strange world of homicide investigation and prosecution I only came to know them through the stories, photos, and memories of their surviving family their case their two adult daughters, their brother and nieces and nephews.

Guzek had already been tried and sentenced to death when I became Chief Deputy DA in Bend, in 1990. I was hired, in large part, to re-try Guzek after all of Oregon's death sentences were overturned in 1989. In 1991 I slowly gained the trust of the Houser family during the second trial, where a second jury gave a second sentence of death. I moved on in 1994 to the job I hold now, as DA of Clatsop County, in Astoria, but I made a promise to the Houser family that if they needed me, I'd come back.

It was sooner than I thought. In 1995 the case was overturned again. I moved back to Bend for a few months to prosecute Guzek for a third time. Again the jury sentenced Guzek to death and again the Houser family endured with dignity and gave the testimony that shone the little light the law allows on the lives (not the deaths) of Rod and Lois Houser. Doug Houser, Rod's brother and one of the most prominent lawyers in this part of the nation, had the jury - and me - in tears as he told how as kids he and his brother made a pact that whoever died last would take the ashes of the other to a remote but beautiful lake in the Willamette National forest -- Duffy Lake.

But the 1995 trial brought neither closure NOR finality. In 2005 the Guzek case went to the US Supreme Court, where our side won unanimously. That did not stop a FOURTH trial, held in 2010 - 22 years after the first trial. At that point about $3 million had been spent defending the murderer Randy Guzek. Many of the original witnesses and even some members of the Houser family had died, but Doug Houser and Sue Shirley, the victims' daughter, were there every day.

The fourth trial resulted in a fourth death penalty. Of course the case went to the Oregon Supreme Court, who finally have denied Guzek's direct appeal. This last February the United States Supreme Court denied cert - meaning they declined to review the conviction or sentence.

Of course most of you know that is NOT the end of the case. Guzek will now claim Post Conviction Relief, that one of his five teams of lawyers rendered so-called "inadequate assistance of counsel"
But last summer the family of Rod and Lois Houser asked me to hike with them the three miles off the trail head in the Cascades that leads to the silent but beautiful Duffy Lake, where Doug Houser said a few words in memory of Rod and Lois.

I recall another homicide prosecution of a driver who was drunk and high on drugs when he came around a corner on the Sunset Highway in Clatsop County and slammed into a van driven by a father whose wife and two children were in the car. As all too often happens, the drunk was essentially unhurt while the father and mother died instantly. One of the children died shortly after at the hospital in Portland. The sole survivor was the young son, Ben. I went to his relatives’ home outside Portland to discuss a possible resolution of the case with his guardians – his aunt and uncle, and to assess whether the boy could handle getting on the witness stand, if necessary. I’m not a father and I’m honestly not great with kids so I was trying to find a common point of reference with Ben. It turned out we both loved cats. He explained he couldn’t have a cat because his relatives were allergic, and his cat lived in the house where nobody lived any more. I had not really considered the enormity of his loss until that moment. I realized that before he was in 7th grade his entire family was stolen from him, violently and without cause.

Ben’s family did not particularly want to go through a trial, but I was able to secure a 15-year prison sentence under Measure 11. Most cases do resolve by plea, not trial, saving a family the anguish and uncertainty that comes with a trial. The sentencing was – nonetheless – very emotional. The victims played a memorial video in court and gave the defendant a fancy bible into which a family photo had been embossed. The Portland TV stations were all in court and afterwards they asked me if I was surprised by the Christian forgiveness the family expressed for the man who killed three members of their family. I replied that I was moved by their willingness to forgive, and I didn’t think I would be so generous. Buta criminal trial isn’t about forgiveness, it’s about accountability. To quote the Bible at MATTHEW 22:21 “Render unto Caesar the things that are Caesar's, and unto God the things that are God's".

The drunk driver received their forgiveness, in the personal and spiritual sense, but it is not the State of Oregon’s place to grant forgiveness.

I come from a family who have been pursued by governments meaning to do ill to my ancestors. My mother’s grandfather was a Mormon polygamist chased into the wilderness of southern Utah by the US Army during the “Mormon Wars” of 1858. More recently my father and his entire family fled Nazi Germany in the 1930s to avoid persecution and death for being ethnically Jewish.

Today is part of what an observant Jew (I am not a religious person of any denomination) would call the “DAYS OF AWE” –5 days after Rosh Shonna, Jewish New Year and 4 days before YOM KIPPUR, the “Day of Atonement.” In that faith God keeps “books” on a person’s life and the ledger can be altered by particular acts of atonement during these “days of awe.” Events like these always remind me of a tale recounted by Canadian writer Anne Michaels in her book FUGITIVE PIECES. She tells the parable of a rabbi, renowned for his wisdom and great knowledge, who is invited to travel to a nearby, wealthier congregation to speak. For reasons known only to the Rabbi, he dresses as a poor peasant on the train journey and is treated poorly by some of the passengers, who turn out to be members of the congregation that invited him.

After the rabbi’s speech , members of the congregation come to him and ask his forgiveness for their thoughtlessness and poor behavior. He smiles sadly and tells them he cannot. As the Day of Atonement approaches they re-engage the rabbi and ask him how, he – a holy man – can deny them forgiveness on of all day this Day of Days, YOM KIPPUR.

He shakes his head and tells them the only person who can forgive them is the man on the train, and he no longer exists.

As Anne Michaels writes: “Nothing erases the immoral act. Not forgiveness. Not confession. And even if the act could be forgiven, no one could bear forgiveness on behalf of the dead. No act of violence is ever resolved.”

But if you can find it in your heart to forgive, I applaud you. That is your choice, morally and spiritually. Sometimes it can be a healing act, not just for them but for you. But don’t let anyone or any institution bully you into thinking you are required to give that forgiveness. It is yours to give or with-hold. In a society that increasingly finds ways NOT to hold people accountable for their thoughtless, even cruel acts, you have the freedom and right to give or with-hold.

It has been my honor to work for over 35 years as someone who helps support victims, demand accountability on their specific behalf in court, and in the community in policy discussions. Join me today in remembering all those whose names were added to the wall, the names already there and those who just left us, like Dee Dee Kouns.

Joshua Marquis
Clatsop County District Attorney

Monday, October 2, 2017

History Matters

In 1934, Oregonians passed Measure 302 which made several changes to felony trials : (1) It allowed a defendant to not have a jury trial; (2) It allowed a jury in most (but not all) felony trials to render a verdict of either guilty or not guilty with the concurrence of only 10 out of 12 jurors; and (3) a unanimous verdict remained a requirement for conviction, but a not guilty verdict could be reached with the concurrence of only 10 of 12 jurors.

In the last year, some "activists" have spread the claim that 1934's Measure 302 was a "racist and unfair" law mainly because Louisiana had similar laws. But Louisiana's law differed in an important way: Guilty verdicts for Murder are allowed on jury's 10-2 vote.

Several lazy journalists have simply been taking dictation from the activists. They've written articles claiming that the US Supreme Court (SCOTUS) was set in this year's session to hear a case from Louisiana that would "change Oregon law." Except it would not have, because the case was about a man who had been convicted of murder on a 10-2 verdict which, as noted above, is not and never has been allowed in Oregon.

SCOTUS validated Oregon's Measure 302 most recently in 1972, and many times since has declined to consider cases challenging the 10-2 not guilty verdicts. Including today. The Supremes did not include the Louisiana case on its list for their new term beginning today.

What follows is my response to an article published in the University of Oregon Law Review, which simply shrugged off my many criticisms about the author's historical deceptions about Oregon in the 1930s.

History Matters: A Response to Prof. Aliza Kaplan
Joshua Marquis
November 27, 2016

In an article prepared for the Oregon Law Review, Professor Aliza Kaplan paints a picture of Oregon, from its beginnings to the later years of the 20th century, as a cesspool of racism and bigotry, a society and government of the 1920s and 1930s dominated by a powerful Ku Klux Klan, anti-immigrant, overwhelmingly white, Protestant, and religiously bigoted, Thus Professor Kaplan sets the stage for another in a long line of heretofore unsuccessful attacks on non-unanimous jury verdicts in Oregon criminal cases.
            Also being used to provide some academic veneer for a motion in a pending case of Prof. Kaplan’s, the article repeats cliches about how non-unanimous verdicts deny critical due process rights to defendants and are particularly susceptible to unfairly targeting racial and ethnic minorities. Conveniently enough, Louisiana is the only other state to allow non-unanimous verdicts, and so Prof. Kaplan smears Oregon prosecutions with the chronicle of racism and injustices in Louisiana’s genuinely dark history.
            In 1972, in Apodaca vs. Oregon, the US Supreme Court affirmed the right of the states to allow non-unanimous verdicts. Oregon’s rule was the result of a process of progressive reform over a couple of decades, leading to its adoption by popular initiative in 1934. But this history eludes any comment by Prof. Kaplan. Then again, the professor chooses throughout her article not to cite the findings of the majority of the court, instead choosing to cite those dissenters who agree with her position, along with a highly dubious series of inside websites run by the same Criminal Defense Bar of which Ms. Kaplan is such an outspoken member. (In a serious law review article that would be like me quoting other articles I had written as proof of an underlying fact in a footnote.)
            Professor Kaplan's obvious lack of knowledge about the history of Oregon populism and progressive reform at the beginning of the 20th century can only be the result either of poor scholarship or of an attempt to deliberately mislead the reader. This gets even worse as the article progresses, where Kaplan grossly misstates a number of voter-driven criminal justice reforms, once again citing her own organization, the Oregon Innocence Project, as the authoritative source.
            Prof. Kaplan recounts a little-known case involving Jacob Silverman, a Portland man who was charged in April of 1933 with first-degree murder for the deaths of a man and a woman. One “hold-out” kept the jurors from unanimously agreeing on either first-degree or second-degree murder, so the jurors agreed on the lesser charge of Manslaughter, for which Silverman received a three-year prison sentence.
            Prof. Kaplan then claims that a vile, anti-Semitic mob, also known as the Oregon electorate, was so outraged that the one "hold out juror unwittingly became the poster child for Oregon Ballot No. 302-03.”
            Much is missing in Prof. Kaplan’s argument. The measure, which passed on a 58-42% margin, allowed Oregon criminal jurors either to convict or to acquit on a 10-2 vote, in all but murder cases. It cannot be much of a leap to assume Prof. Kaplan would be okay with a 10-2 verdict of acquittal.
            Missing also is the most obvious fact: Silverman’s case would have resulted in the same verdict of manslaughter whether he had been tried before or after Measure 302-03.  At the time of Silverman’s trial, all criminal verdicts required a unanimous vote to convict. The manslaughter conviction was clearly a compromise to which the one hold-out juror was willing to agree.
            The irony is that Kaplan is claiming that the racist and anti-Semitic mob mentality of 1933 Oregon was so outraged that the verdict in the Silverman case lit the spark that gave rise to Measure 302-03.  Ballot measure 302-03 specifically excluded murder, which, as it does to this day, requires a unanimous vote by the jury to convict.
            And what’s more, the measure also expanded criminal defendants’ rights by allowing trial by judge -- avoiding “the mob” of a jury -- with the judge’s consent.
            As bad as the legal "scholarship" is here, what is worse is either the deliberate ignorance or the deliberate omission of the facts of political life in Oregon in the first third of the 20th century. That racism existed in Oregon in 1910, 1938, 1985, 2017 is undeniable. The question is whether it was as pervasive and perverting as Kaplan claims.
            Readers might be interested to learn that the Governor of Oregon during the relevant time period, 1931-1935, was the only person ever to be elected as an Independent: Julius Meier, a Jewish man whose family, along with that of the Frank family, founded the iconic Meier & Frank department stores. (Frank's descendant, Gerry Frank, continues to write about Oregon life and politics in the Oregonian and other venues.)
            Like many Oregon politicians of the early 20th century, including earlier Governor Oswald West (1911-15), Meier was considered to be a progressive and a reformer. Meier organized the Oregon State Police, drawing on the advice of noted Marine General, two-time Medal of Honor winner turned political radical Smedley Darlington Butler, turning it from a rag-time bunch of game wardens into the statewide professional organization it remains almost 100 years later. Meier also advocated for removing partisan politics from the judicial system
            There’s no question that there was a political resurgence of the Ku Klux Klan in the 1920s across northern states, lasting essentially until the Great Depression. The Klan had advocated boycotting the Meier & Frank stores, and the Oregonian could be a vile newspaper, stirring up racist and anti-Semitic passions; in fact, the editors opposed Meier’s election.
            But if Oregon was such a viciously anti-Semitic place as Kaplan asserts, how on earth did a reformer like Meier get elected?
            And Meier was not an outlier. His predecessor as Governor was Albin Norblad. Sr., of Astoria, Oregon, considered “too progressive” by his fellow Republicans. Norblad formed a Pardons Board and personally interviewed inmates seeking relief.  Norblad was preceded by Gov. I.J. “Ike” Patterson, who directed the state prison system to house adult and juvenile criminals separately.
            In fact, a discussion of the “Progressive” era of American politics must include William U’Ren, a now little-known reformer who served a single term in 1898 as a state representative from Clackamas County. U’Ren invented the direct referendum, the recall, and the direct popular election of U.S. Senators.
            This minutiae may seem irrelevant to Prof. Kaplan, intent on creating a very different Oregon, perhaps cut from the same cloth as D. W. Griffith’s notorious 1915 silent movie Birth of a Nation, which glorified the KKK and slavery, and was originally titled after its source book, The Clansman.
            Context and history matter, so when Kaplan starts speculating about a spate of voter-driven reforms that were passed by voters in the 1980s and 1990s, she mischaracterizes most of those changes as well.
            Kaplan runs the Oregon Innocence Project – the second of such projects after the initial 2005 iteration at the University of Oregon Law School failed -- not for lack of volunteers, willing professors, or earnest law students. It failed because it lacked a critical ingredient: innocent convicts. When the group’s determined effort failed to turn up even one “innocent” over the course of a few years, the group quietly shuttered. The new effort is better funded, and is advertised by advocacy groups as trying to roll back the very “truth in sentencing” and victims’ rights enacted by Oregonians, measures that Kaplan thinks of as mob rule. Some call it democracy.
            As Kaplan describes the very small number of cases in the United States in which DNA advances have freed people who truly did not commit the crime (14 men from death row, 9 of whom had already been released off death row or out of prison entirely; about 340 overall for all crimes), she fails to mention the history of DNA in Oregon and elsewhere. It was prosecutors who fought, courtroom by courtroom through this nation, to get this new and remarkable technology accepted -- over the fevered objection of defense lawyers. In Oregon, a Clatsop County murder case, State vs. Futch , 324 Or. 297 (1996) finally established that DNA evidence met the state’s Daubert-like “Brown/O’Key” scientific standard for admissibility.
            Prof. Kaplan makes short work of a series of voter-passed and Oregon Supreme Court-approved criminal reform measures. She refers to Measure 11 as ”restricting the legislature’s ability to reduce voter approved sentences.” But Measure 11, which requires sentences ranging from 70 to 300 months, depending on the crime, has had the net effect of reducing racial disparities in sentencing by prohibiting judges from considering whether a defendant is from a “good family.” And in 2000, an attempt to repeal Measure 11 was rejected by a 3 to 1 margin, dwarfing the original passage rate of merely 2 to 1.
            Kaplan entirely brushes off  Measure 69, which ensconced voter-passed statutory victims’ rights into the Oregon Constitution as Article 1, Section 43.  She refers to Measure 71, which requires judges to consider both a defendant’s likelihood of appearing in court and the risk they pose to the community as “limiting a judge’s discretion in pretrial release decisions.”
            Perhaps most egregiously, she refers to Measure 57, a complicated sentencing measure jointly sponsored by the state’s Democratic legislative leadership and the state’s district attorneys to head off a mandatory minimum measure as a law that “appeared to be disguised as an anti-drug trafficking bill, [but] established mandatory minimum sentences for repeat property, identity, and mail theft offenders.”
            Kaplan is either being lazy or deceptive, or both. Measure 57 did not impose a single new mandatory minimum sentence, save one the Democratic leadership insisted on including involving the delivery of huge amounts of methamphetamine, designed to make the measure look “tougher” than a competing measure offered by Kevin Mannix, a former legislator who had authored many crime laws and sought to be seen as “tougher on crime” than others.
            In conclusion, Kaplan deliberately leaves out one important fact: Oregon is likely the only jurisdiction in the nation allowing a not guilty verdict to be reached by only 10 of 12 jurors. The effect of Measure 302-03, passed in 1934, has not increased guilty verdicts. It has simply reduced the number of hung juries.
            As the saying goes “god and the devil are in the details.” 
            So is the truth.