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Cases prompt call for grand jury reform

Part One: Oregon courts could be required to record, transcribe hearings.

Nearly 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. The result was a mountain of transcripts and evidence that shed light on the decision not to indict the officer who shot Campbell.

“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.”

The policy to record grand juries in cases involving police use of force continues in Multnomah County. This legislative session, a trade group representing defense attorneys will ask the Oregon Legislature to adopt similar legislation to record grand juries statewide. And not just for police officers facing charges. For everyone.

The reason? Thirty-six states in this country record what happens at grand juries, the citizen juries that indict people for major crimes. Oregon isn’t one of them.

Instead, police officers facing grand juries in Multnomah County enjoy a better defense than any other defendant in the state. That’s because the county’s policy to record grand juries assures they get transcripts of what witnesses say against them, in their defense, and other evidence. That’s better armament than any other defendant in Oregon receives. Many head to trial with just a police report, indictment, and a statement from a prosecutor. Those sometimes don’t clearly spell out how and why the defendant was charged.

“When we have secret government processes, things get kind of dangerous,” said DeAnna Horne, a Multnomah County public defender.

Grand juries are not supposed to be government instruments. Quite the opposite. Grand juries are instruments of the court — not police or prosecutors. The juries’ main charge is to protect ordinary citizens from being brought to trial with flimsy evidence.

State law requires only that a single grand juror take notes of what’s presented to grand juries. Those notes aren’t available without a judge’s order, typically granted only to those who can prove discrepancies in testimony or evidence occurred between trial and grand jury, a feat defense attorneys call a Catch-22. Defendants who succeed in obtaining a court order sometimes find the notes don’t exist, or that they’re the equivalent of scribbles on cocktail napkins — one defense attorney in Umatilla County, for example, won grand jury notes at trial, but received only a few lines of ink on the back of a court calendar.

That is a scenario many Oregonians could face. 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. 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 witnesses said about them at grand jury. Or if there were other witnesses before the grand jury who didn’t implicate them in the crime. Nearly 16 percent of those people — or an average of 288 people every month — were indicted in Multnomah County.

Several bills aiming to reform grand juries are likely to be introduced in Oregon this legislative session. But while the national debate about grand jury reform focuses on eliminating racial bias in the criminal justice system and curbing police use of force against minorities, 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.

Different views

Defense attorneys argue that, without recording, the grand jury system is easily transformed into a prosecutorial playground.

They charge some prosecutors abuse their subpoena powers to access records they aren’t supposed to have, such as juvenile records.

They also say some prosecutors fudge evidence rules and routinely “shop” cases from one grand jury to the next, looking for the jury most likely to indict by withdrawing cases before they become acquittals. The pattern leaves citizens open to charges for years at times, defense attorneys say, because a huge number of cases are withdrawn and 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 Oregon Criminal Defense Lawyers Association.

She said the bill, which was proposed by the association, keeps grand juror deliberations secret, and would not disclose grand jury recordings to 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.

“It’s just not that hard. It’s not that expensive. We’re talking about DVDs,” she said.

If approved, the legislation would require all grand juries to be recorded, and allow those indicted to obtain copies of the recordings from a judge before trial. A judge would be free to impose restrictions if prosecutors can offer reasons why. An example? If a witness might be intimidated to change his or her story, or otherwise be put in danger.

Though the bill has been in the works since before the shooting death of Michael Brown by police in Ferguson, Mo., or the choking death of Eric Garner by police in Staten Island, N.Y., it will land in the Oregon Legislature at a time when grand jury reform is a national conversation. Elsewhere, lawmakers are discussing giving suspects a right to appear before grand juries, or have their attorneys listen in, or requiring prosecutors to show grand juries evidence that might exonerate the person charged.

The proposed legislation is expected to receive bipartisan support in Oregon — Sen. Jeff Kruse, R-Roseburg, has signed on as a co-sponsor. And it comes with an unusual advocate: former Multnomah County District Attorney Schrunk, who plans to testify on its behalf, if invited.

Rev. T. Allen Bethel of the Maranatha Church in Portland says the Albina Ministerial Alliance Coalition for Justice and Police Reform, of which he is a member, has long sought more assured transparency in grand jury proceedings reviewing use of force incidents by police, among other reforms.

While a supporter of Multnomah County’s policy to record grand juries in use-of-force cases, Bethel said, “That’s the word of one district attorney, but that is not necessarily saying that this will continue to be policy for all.” He’d like to see video or audio recording grand juries become law for every county to help pinpoint cases of biased indictments.

It used to be that Schrunk stood alone among Oregon district attorneys in supporting such ideas.

Today, nearly five years after Aaron Campbell’s death changed this conversation in Oregon, the prosecutorial community is more divided about such efforts. The Oregon District Attorneys Association has not put forth a position on the bill, and for months has not returned InvestigateWest’s calls seeking comment.

Some prosecutors say their colleagues’ viewpoints vary widely. Some are concerned about the potential costs associated with recording because the law would give judges discretion to require transcription rather then video or audio recording. Those most outspoken against proposed changes, however, chiefly worry they open a door for legal challenges to clog the machinery of the courts.

Clatsop County District Attorney Josh Marquis, for example, believes the proposed law would enable defense attorneys to routinely raise challenges based on grand jury testimony. He cautions that overuse of such challenges could slow courts, or push prosecutors to seek indictments from judges rather than juries, similarly cluttering court calendars.

“If you watch even well-written movies or shows, the conventional wisdom is that our justice system is about a gladiatorial system where each side presents its version of the truth and, out of that, the jury tries to figure out what really happened. That is not what’s really going on,” he said.

What’s really going on, Marquis said, is that defense lawyers do everything they can to make it harder for the prosecutor to send their client to jail. Grand jury recordings could prove just another escape hatch, not a tool for clarity for the victims and the public.

Mike Regan, who supervises the sex offender unit of the Clackamas County District Attorney’s Office, agrees. He worries that if grand juries are recorded, dangerous offenders would stay on the streets longer while pre-sentencing legal challenges based on those recordings are argued. He also worries defense attorneys would routinely compare recorded testimony to police reports and trial testimony and use even small discrepancies to rattle witnesses.

That’s especially a concern in Regan’s unit, where he works with abuse victims who are sometimes very young children. He doesn’t want children intimidated or harmed by aggressive questioning about their consistency. He believes a grand jury is sufficient to buffer excessive prosecution.

But whether there’s really anything wrong with the justice system is not the point, Schrunk said. Rather, he said, the perception that the justice system lacks fairness and thoroughness, and is subject to prosecutorial bias, is more at issue. After 32 years of inquests and emotional cases, Schrunk said he has lots of confidence in Oregon’s criminal justice system. But he’s also learned that just doing a good job is not good enough.

“People have got to have faith in the justice system, and the justice system has got to earn that faith of the public,” he said. “I think we’ll be better off if that happens.”

Part II will be published Jan. 1.

If you have experience with or information about Oregon grand juries, email Lee van der Voo at: lee@invw.org. InvestigateWest is a nonprofit investigative newsroom for the Pacific Northwest.