Now that Judge Suzanne Upton has announced her resignation, Gov. Kate Brown has the opportunity to make Washington County safer and our judicial system fairer.
While problems with police behavior and correctional institutions may take a near-revolution to solve, the problems caused by biased judges has a simpler solution: we need racially diverse judges from defender backgrounds.
Of the 14 Washington County judges, only three have public defender experience. The majority come from a prosecution background. Why does this matter? American jurisprudence demands the sustained presumption of innocence, from arrest to jury findings. Prosecutors are in the business of winning convictions, not necessarily achieving justice. And while judges are assumed to be open-minded and objective, their previous work experience colors their views.
Experts agree that diversity on the bench is "essential to equal justice under the law." Stephen Hanlon, a professor at Saint Louis University Law School stated that when this diversity is lacking, the courtroom will be biased: "You're going to get more of the prosecution perspective than the defense perspective from judges."
Georgetown Law Professor Abbe Smith suggests that most judges are not defense-oriented, or what she calls "Bill of Rights oriented." Smith argues: "Instead of judges who are nothing more than rubber-stamps for prosecutors, deferring to prosecutors at every step because they believe most defendants in fact guilty or because they dislike defense lawyers, we need judges who are truly neutral and disinterested. Instead of judges who actively assist the prosecution and handicap the defense, we need judges, at the very least, [to] allow the adversarial system to play out."
While judges may seem objective, Smith's research finds that judicial hostility towards the accused surfaces in subtle ways. These include editorial interjections during jury selection, cutting defense attorney's time to question potential jurors, disrespecting the defense's requests during pleading, positions taken during oral arguments, "and often when the defense raises a scheduling problem."
In Washington County, something as simple as a scheduling conflict or distrust of a victim has led to the jailing of victims and witnesses. After her release from a two-year stint at Coffee Creek Correctional Facility's Mental Health Unit on a probation violation, a woman accused her jailor, Corrections Officer Brian Balzer, of rape.
While Balzer won release on $2,000 bail, Deputy District Attorney Dan Hesson argued the victim had "led a life of crime." Rather than upholding a standard of conduct for prison officers, the prosecutor blamed the victim, asserting she was "complicit" in "perpetuating the illicit relationship between she and the defendant."
A former prosecutor himself, Washington County Circuit Judge Charles Bailey heard the victim's insistence she would appear to testify. The victim said "I don't want to run. [Balzer's] going to pay for what happened … If I have to be accountable for my actions and for my past, he has to be accountable for his."
Despite the victim's promises, Judge Bailey set bail at $50,000, and ordered her jailed as a material witness, often in shackles and chains, for nearly six weeks. This injustice was covered in national media as an example of prosecutors unfairly jailing victims, but Judge Bailey is also to blame.
And she was luckier than some. In Oregon, a pretrial hold can be indefinite, as Moises Vasquez-Santiago and Benito Vasquez-Hernandez learned when they were jailed as material witnesses for 727 and 897 days, respectively. After Vasquez-Santiago suffered a psychotic break and Vasquez-Hernandez testified he knew nothing about the case, Judge Don Letourneau finally ordered the innocent men released.
Witnesses, victims and the accused can be denied pretrial release for a variety of reasons, including covert or unexamined racial and cultural prejudice. The Oregon Supreme Court Task Force on Racial/Ethnic Issues in the Judicial System" found that minorities are less likely to receive pre-trial release. Those with developmental or language barriers can also find themselves unfairly and indefinitely jailed.
In 2012, nearly half of Washington County's incarcerated were held for pretrial detention and probation violations. Unnecessarily jailing large numbers of citizens increases costs to taxpayers and causes excessive financial and social hardship for those incarcerated. It also violates the fundamental principle of innocent until proven guilty. Defense-oriented judges are less likely to let these injustices stand.
Because Washington County's new judge will be appointed to complete Upton's six-year term, Gov. Brown may be able to recruit more defense-oriented applicants. During elections, nominees are subjected to the worn-out attack "soft on crime" so attorneys with defense backgrounds tend not to run. Appointed judges may not face that kind of attack.
The nonpartisan Brennan Center for Justice finds that appointed judges tend to be fairer and less punitive than elected judges. Appointees don't suffer campaign donor pressure, and numerous studies show that judges are less likely to inflict lengthy sentences and the death penalty just to prove their "law and order" stance.
Connie Baron, a North Plains resident, advocates for criminal justice reform with other Washington County residents through The Criminal Justice League. For information visit criminaljusticeleague.org.