Oregon State Bar Bulletin APRIL 2002

An Additional Note

After this article was completed a new procedural twist arose in the Rogers case that may occasion further delays. It relates to what attorneys are now calling the 'jury pool challenge.'

Defendants in criminal cases have the constitutional right to a jury pool that reflects a cross-section of the community in which they are being tried. That seemingly simple requirement has engendered several lawsuits. In a 1999 Clatsop County aggravated murder case, attorneys for Anthony Scott Garner asked for the lists of names from which the actual jury pool was composed in order to see if the constitutional requirement was being met. The state opposed the request, but the judge sided with the defendant.

The state pursued a writ of mandamus with the Oregon Supreme Court. The court then issued the Click opinion in December 2000 that seemingly suggested that these records were to be available to the defendants without a preliminary showing of possible prejudice. These records were then turned over to Garner's defense team. The 'jury pool' records include a Refined Source List (a merging of DMV and voter registration files), a Master Jury List (prepared by State Court Administrator Kingsley Click for each county on a regular basis) and the Term Jury List (prepared by each county court administrator as jurors are needed).

The 2001 legislature attempted to draft a statute incorporating the supreme court's holding, in what might be called the 'Click Fix,' but the statute seems to have an ambiguity in regard to the showing necessary to trigger the release of jury pool records.

Attorneys for Rogers moved in a pretrial motion early in 2002 to get access to the jury pool records of Clackamas County. The judge denied that motion. A similar request for the jury pool records in two Multnomah County cases were granted.

Rogers' defense team then hired an attorney specializing in criminal appeals who has recently submitted a writ of mandamus to the Oregon Supreme Court on the issue of release of records. She argues in her memorandum, submitted to the court on March 25, 2002, that the new Oregon statute, ORS 10.275, when read in conjunction with the Click decision as well as with the United States and Oregon constitutions, requires access to the jury pool records without a showing that possible prejudice may have tainted the jury pool.

The issue is now before the Oregon Supreme Court. They will probably want to clarify what the law is on the issue but it may take them some time to do so. They may or may not use the Rogers case to do it. In the meantime, the third penalty-phase trial of Dayton Leroy Rogers may be put on hold until the mandamus challenge is decided. If it is ultimately decided in Rogers' favor, his attorneys will not only ask for the records but for an appropriate time to study them. If the challenge is denied, Rogers' case will proceed as scheduled, but the denial of the records will provide appellate and post-conviction counsel with a potent state and federal appellate issue to raise for years to come.

-Bill Long (March 26, 2002)

2002 William R. Long

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