A Remedy for Gatti

Suppose that six months ago, a federal marshal reported to the United States Attorney for Oregon that he had learned of a planned terrorist attack on downtown Portland that would kill thousands of persons, but that he could stop through a hugely deceptive covert operation. To maximize the chances of successful, subsequent criminal prosecutions, the marshal sought the attorney's involvement in the operation. But the U.S. Attorney said, 'No, I can't help you. That would violate my ethical duties under Oregon law.'

And the U.S. Attorney would be right. In Re Gatti, 330 Or 517, 8 P3d 966 (2000) explains that DR 1-102(A)(3), DR 7-102(A)(5) and ORS 9.527(4) impose on lawyers 'a [public] duty of honesty and personal integrity.' Gatti at 536. This duty prohibits attorneys from engaging, or having their agents engage, in dishonest evidence gathering. Moreover, the provisions do 'not permit recognition of an exception for any lawyer[.]' Id. at 532 (court's emphasis). So taking Gatti to its extreme, the U.S. Attorney could be disciplined for involvement in the covert operation, no matter how may lives it might have saved.

Given that, it seems absurd to think that Oregon law needs no revision. The question is whether the revision approved by the 2001 Legislature, and a distinct revision now before the Oregon Supreme Court, are what is needed.

Since the court decided Gatti more than a year ago, the state's prosecution bar has worked hard to carve out a criminal-prosecutor exception to the law's ban on dishonest evidence gathering. These efforts culminated in the 2001 Legislature's House Bill 3857, and the Board of Governor's Resolution No. 3, passed by the House of Delegates and now pending before the Supreme Court.

HB 3857 authorizes the court to exempt prosecutors and other government lawyers from ORS 9.527(4)'s prohibition on 'willful deceit and misconduct in the legal profession[.]' Resolution No. 3 goes further. It asks the Oregon Supreme Court to exempt not only prosecutors and government lawyers from DR 1-102(A)(3) and DR 7-102(A)(5), but to extend that exemption to attorneys working for 'publicly funded civil rights enforcement agencies, including nonprofit organizations such as legal services offices and fair housing entities and any other lawyer acting in the role of private attorney general.' When HB 3857 and Resolution No. 3 are read together, they don't appear to exempt court-appointed criminal-defense attorneys from the ban on dishonest evidence gathering. They certainly don't exempt privately retained criminal-defense attorneys. Consequently, the bill and the resolution would so enhance 'the State's inherent information-gathering advantages,' Wardius v. Oregon, 412 US 470, 475 n9, 93 SCt 2208, 37 L Ed 2d 82 (1973), that they could violate due process.

Resolution No. 3 refers to dishonest evidence gathering as 'covert activity.' Covert activity serves a purpose very similar to discovery, in that both provide attorneys a means for obtaining evidence that otherwise could be beyond their reach. Because covert activity and discovery serve such a similar purpose, due process standards regulating discovery also could regulate covert activity.

In Wardius v. Oregon, the Court explained, '[a]lthough the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded, * * * it does speak to the balance of forces between the accused and the accuser.' 412 US at 473. '[I]n the absence of a strong showing of state interests to the contrary, discovery must be a two-way street.' Id. at 475. '[T]he Due Process Clause of the Fourteenth Amendment forbids enforcement of [discovery] rules unless reciprocal discovery rights are given to criminal defendants.' Id. at 472.

Essentially the same thing could be said about HB 3857 and Resolution No. 3. A criminal prosecutor could ground a prosecution on evidence obtained through covert activity, even though the defendant's lawyer was legally prohibited from using covert activity to disprove the prosecution evidence (or even to prove his client's innocence). This 'one-way' exemption from the ban on dishonest evidence gathering could violate due process every bit as much as the non-reciprocal discovery statute the Court condemned in Wardius.

Moreover, it may well be that suppressing such prosecution evidence is the only way to remedy the due process violation. After all, the 'court is prohibited from inserting into ORS 9.527(4) [a criminal-defense-attorney] exception that the statute does not contain.' Gatti, 330 Or at 533. Therefore, it would seem that only suppression could restore 'the balance of forces between the accused and his accuser.' Wardius, 412 US at 474.

But there is a way around this problem. Recognize that in most cases, properly trained police agencies can conduct covert activities without attorney involvement. For exceptional cases where attorney involvement would be crucial to successful prosecutions, the legislature and the supreme court could adopt statutory and DR amendments allowing prosecutors' involvement by court order upon 'a strong showing of state interests[.]' Wardius, 412 US at 475. This would avoid the due process problem, while otherwise ensuring that Oregon lawyers observe their 'duty of [public] honesty and personal integrity.' Gatti, 330 Or at 536.

ABOUT THE AUTHOR

The author is a chief deputy appellate defender with the Office of Public Defense Services (formerly the State Public Defender's Office) and past chair of the bar's Criminal Law Section executive committee.

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