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Grand jury reform draws supporters from all sides

GREG SCHOLLNearly five years ago an African-American man was shot during an encounter with police. He was unarmed. He had just stepped out of an apartment building with his hands behind his head. It didn’t happen in Ferguson, Mo., but rather, in Portland — and the man who lost his life that day was Aaron Campbell.

His death prompted Mike Schrunk, then-district attorney of Multnomah County, to ask a judge to record the grand jury process that reviewed the shooting.

A grand jury is a group of citizens randomly chosen to listen to evidence assembled by prosecutors and to decide whether to charge people with major crimes.

In Campbell’s case, they considered whether to charge the police officer who shot him.

The recording produced a mountain of transcripts and evidence that shed light on the decision not to indict the officer — and proved important enough that the county continued such recordings.

“I’ve always believed in the system,” Schrunk said, but “you’ve got to have the confidence of the public in what you’re doing.”

If confidence depends on recording grand juries, however, Washington County and the rest of Oregon is out of luck, because Multnomah is the only county doing so — and only in cases involving police use of deadly force against citizens.

This legislative session, a trade group representing defense attorneys will ask the Oregon Legislature to adopt legislation to record all grand juries statewide, as 36 other states have already done.

Handling cases differently 

More than 110,000 people were charged with major crimes by Oregon grand juries from 2009 through 2013, according to a review of court data by the Oregon Criminal Defense Lawyers Association (OCDLA). That’s more than 1,800 people charged with felony crimes by grand juries every month.

Many of those defendants arrived in court without knowing what exactly witnesses accused them of during the grand jury process, or if there were other witnesses whose testimony might have pointed to their innocence.

Greg Scholl, a defense attorney who directs the Washington County section of Metropolitan Public Defender (the state’s largest indigent-defense firm), thinks that’s unfair.

“Most people do not know these hearings happen in secret. They don’t know how felony charges actually get initiated,” he said. “It’s not just defense attorneys who should have an interest in recordation.

“Victims and other witnesses have an interest in knowing that their statements are preserved on the record and not changed or manipulated.”

That, Scholl emphasized, “protects law enforcement and the defendants as well, in that the process gains integrity.”

Grand juries are not supposed to be instruments of prosecutors, even though prosecutors legally control what testimony and evidence is presented. Quite the opposite. Grand juries are instruments of the court, which is charged with impartiality. They are supposed to protect innocent citizens from being tried with flimsy evidence.

If recordings of grand juries were accessible and transparent, Scholl said, it could make a big difference in the way some cases play out. “We would know who said what when, and how the decision to charge a felony crime was actually made.

“This is a good thing — it would lead to accountability and integrity for a system the public already sometimes mistrusts.”

State law requires only that a single grand juror take notes on what’s presented to grand juries. Those notes aren’t available without a judge’s order, which is typically granted only to those who can prove discrepancies between trial testimony and grand jury testimony, a feat defense attorneys call a Catch-22: How can you prove such a discrepancy without seeing the grand jury notes?

BOB HERMANNNational conversation 

With the nonprofit Innocence Project using DNA tests to help free 325 wrongfully convicted people from prison over the past couple decades, the general public has become more aware of problems within the criminal justice system.

Now the recent high-profile police killings of unarmed black men — and grand jury decisions not to indict the officers — have made grand jury reform a national conversation.

Much of it focuses on eliminating racial bias and curbing police use of force against minorities.

In other states, bills propose giving suspects a right to appear before grand juries or to have their attorneys listen in, or requiring prosecutors to show grand juries evidence that might exonerate the person.

But Oregon begins from a very different place.

“The national conversation presumes that we are already recording (grand juries) in some way. The other kinds of grand jury reforms that people are talking about? We’re not even at first base to be part of those conversations because we don’t have a record of the grand jury,” said Rep. Jennifer Williamson, D-Portland, who is sponsoring a bill to record grand juries — one of several such grand jury reform bills likely to be introduced in Oregon this legislative session.

Williamson wants courts to create records for all grand jury hearings — audio, video or transcription, and not just ones involving police officers — and she has the backing of the OCDLA, which proposed the bill. Defense attorneys argue that without recording, the grand jury system is easily transformed into a prosecutorial playground.

“The recordings can make clear [that] witnesses were not manipulated or lied to, and will also ensure that victims have a voice which is not mischaracterized later by anyone,” Scholl said. “There should be no prosecutor who’s afraid of recording the grand jury process.”

Defense attorneys also say some prosecutors fudge evidence rules and routinely “shop” cases from one grand jury to the next, withdrawing cases that appear to be on the path to acquittal and submitting them to other grand juries until they find one more likely to indict the suspect.

This pattern leaves citizens open to charges for years, defense attorneys say, because a huge number of cases are withdrawn but never closed. That’s against the law in Oregon but because of grand jury secrecy, there’s no way to track it.

“That’s the sort of stuff we want to pick up on tape,” said Gail Meyer, a lobbyist for the OCDLA.

She said Senate Bill 365 would open grand jury recordings to defense attorneys but keep them secret from the public unless a judge chose to open them in high-profile cases. Defense attorneys just want proof the Oregon system is working legally, Meyer said.

The recording would remain secret during grand jury proceedings and would be released to defense attorneys only after a suspect was arraigned on the indictment, Meyer said.

Citizens would also be able to request access to the recordings. “It’s just not that hard. It’s not that expensive. We’re talking about DVDs,” she said.

The legislation is already getting bipartisan support, with Sen. Jeff Kruse, R-Roseburg, joining Williamson as a co-sponsor. Meyer said she expects Williamson and Kruse to further amend the bill before it reaches the senate floor.

If invited, Schrunk plans to testify on its behalf.

District attorneys split

It used to be that Schrunk stood alone among Oregon district attorneys in supporting such ideas. But Aaron Campbell’s death changed the conversation and today the prosecutorial community is more divided about such efforts.

The Oregon District Attorneys Association (ODAA) has not put forth a position on the bill.

Some prosecutors, such as Washington County District Attorney Bob Hermann, are concerned about the potential costs of recording, especially if judges required transcription or a court reporter rather than video or audio recording.

Hermann, who also serves as president of the ODAA, says grand jury secrecy addresses the privacy concerns of some victims and witnesses — most notably sexual-assault and elder-abuse victims, gang members and children.

“It gives them a sense of comfort or protection when we say, ‘We’re headed to grand jury, but nobody is going to be recording the conversation or writing down your words,’” he said.

Grand jury recordings would be available only to the defense unless ordered otherwise by a judge, and witnesses are currently listed on public indictments in any case — but this cloak over verbatim testimony has compelled reluctant witnesses until now, say police and prosecutors.

Hermann, who has served as Washington County DA for 17 years, dismissed the push to record grand juries as “a solution looking for a problem,” because he believes non-recordation has served the public well.

“I have a hard time seeing any value” in changes the OCDLA is seeking, Hermann said.

As a group, prosecutors fret that recordings would open a door for legal challenges that might clog the machinery of the courts. Many of Hermann’s fellow prosecutors believe defense lawyers routinely do everything they can to make it harder for the prosecutor to send their client to jail — and that grand jury recordings could prove just another escape hatch, not a tool for clarity for the victims and the public.

But the perception that Oregon’s justice system lacks fairness and thoroughness — and is subject to prosecutorial bias — remains a central issue, according to defense attorneys such as Washington County’s Scholl.

As a group, he and his colleagues are “pretty skeptical about the way grand jury proceedings take place,” he said. “Many here are afraid the process can be very one-sided.”

Part II will be published Jan. 30. Lee van der Voo writes for Investigate

West, a nonprofit investigative newsroom. Nancy Townsley is

managing editor of the Hillsboro Tribune.

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