Oregon State Bar Bulletin — JUNE 2002


What's the Goal?
The woman to my right read a manuscript throughout the presentation and the man to my left gasped and groaned periodically. The three women at the table in front of us each asked a number of questions directed at the two speakers. In the meantime, I spent 3½ hours vacillating between disgust and amazement. The six of us, along with about 150 others, spent Thursday morning, April 11, at the 'Cultural Competency' seminar put on by the Oregon State Bar in downtown Portland. This was the first seminar available for Oregon lawyers to satisfy the new 'diversity' CLE requirement.

Since first learning of the new CLE requirement I planned to attend as soon as possible. I was so darn curious! (My reporting period ended Dec. 31, 2001.) I could not imagine how any one person, or a panel of people, could possibly understand the multitude of cultures on this planet well enough to teach others. Will the seminar concentrate on the problems of disabled and gay people, I wondered?

I arrived at the seminar prepared to hear liberal cliches, guilt trips directed at pale-faced lawyers, a variety of holier-than-thou advice and maybe even some race-baiting. I left disappointed. There was not even that much substance to the seminar. Upon returning to my office I was not able to explain to my law clerk what the two speakers had said. The seminar was so devoid of substance that only a few remarks stuck in my head:

The speaker, Peggy Nagae, repeatedly used the term 'organizational culture' and talked about the need to 'change' the organizational cultures at our firms. I have only three employees so I wondered if I even have an organizational culture.

Ms. Nagae said that instead of 'doing unto others as we would have them do unto us' we should 'do to others as they would have us do to them.' Unfortunately, she was not able to tell us how all these 'others' want 'us' to treat them.

No less than 15 times, Ms. Nagae said, 'I grew up in Boring, Oregon,' or 'I was raised in Boring, Oregon,' or 'being from Boring, Oregon.' That left me with the impression that she considered herself to have progressed so far from her childhood that she was superior to those of us who still hang around Boring, Gresham, Portland, etc.

The architect, Robert Boileau, spoke and said that at his firm, 'We want employees to bring their personal problems to work so that co-workers can help the troubled employee solve the problem.' Upon hearing this, the man to my left leaned over to me and said that he would tell me about his prostate problems if I told him about my PMS. (Sorry, I replied; I don't have that problem.)

Mr. Boileau used the word 'kindergarten' several times. This word accurately summed up the entire seminar.

During the break I rode the elevator down with a woman who was leaving. 'I can't stand any more of this pabulum,' she said. During the last hour of the seminar I felt sorry for Ms. Nagae. The audience started expressing frustration and disgust for the CLE. They felt insulted by the assumption they are racist. Many were not paying attention to her, and were reading or talking to others. The three women in front of us each turned around to talk to us. The six of us agreed that this was a waste of time and that we were being treated like children by the bar.

I wonder if the bar exempts registered liberals from this CLE requirement? Must lawyers of color take this CLE? If not, how much 'non-white' blood must one have to receive an exemption from this obvious attempt to socially engineer Oregon's attorneys? If a pale-faced attorney can prove that she has over 30 close friends and relatives with PC bloodlines, can she get an exemption?

What is the goal here? Are the pale-faced among us supposed to be ashamed of their skin color, ashamed of their ancestral lineage or merely ashamed of every aspect of American culture?

There is no 'there' there. This silly CLE requirement is a waste of time and hard-earned money. Fortunately, this lawyer will not have to waste another 3½ hours on such nonsense until late 2007. Perhaps the 'leaders' at the bar will come to their senses by then and repeal this CLE requirement.
Diane L. Gruber
West Linn

Has P.C. Taken Over?
I notice I have been invited to a CLE on cultural diversity. Notwithstanding the complaints of some of our bar members about the bar being 'touchy-feely' for everyone, it now appears that political correctness has taken over the Board of Governors.

I guess this is inevitable. I should have known it as I grew up on such a culturally disadvantaged area. In the little eastern Oregon town where I was raised, I shared my crib with Paiutes, went to school and played sports with them, ditto for the Japanese-Nisei from the Silvies detention camp in World War II, fought and wrestled with the Basque sons of immigrant sheepherders, ditto for the sons of first generation Irish who came over on sheep contracts. That doesn't even count the Swedes and Norwegians who moved out there to work in the Edward Hines lumber mill. By golly, I still speak pretty good Swede, ya betcha.

As I am not sufficiently 're-educated' (a thought that I believed expired with Chairman Mao), I will offer an alternative which will probably be as beneficial as the bar's program and perhaps a lot more fun.

This summer I will return to Burns and attend the Basquo Fiasco. It has lots of culture. Maybe I could even find one of those little skirts that Basque men dance around in on special occasions. I can then return for the Paiute Pow Wow and visit some of my old friends. Last of all, I'll offer several hours of attendance at the Harney County Fair, Rodeo and Race meet. There's more cultural diversity there than you can usually stand.

Perhaps this requires action of the CLE committee, but I will await your advice
Thomas C. Howser

No Longer Operative
William R. Long's well written and informative article on the Oregon death penalty ('A Time to Kill,' April 2002) raises some provocative questions.

Despite overwhelming voter support for the death penalty (75.1 percent, according to Mr. Long), in practice it has been something less than a success, with the Dayton Leroy Rogers case the most notable example. Disproportionate expenditures of time and taxpayer money, the absence of uniformity and consistency and seemingly endless appeals suggest it may be time to consider abandoning this sanction in favor of the 'true' life sentence - one immune from pardon and commutation. There are of course, valid countervailing arguments, not the least of which is the overwhelming support of the electorate for this form of sanction. There is also the matter of escape and assaults, maiming and murder of inmates and correction personnel by those who would otherwise be subject to the ultimate penalty. Experience has taught that assaults on corrections personnel can occur in even the most secure settings. In October 1983, for example, two corrections officers were murdered by an inmate at the federal penitentiary in Marion, Ill., one of the most secure facilities in the nation.
In my opinion, Mr. Long has erred in questioning whether Oregon is 'justified' in executing other aggravated murderers because their crimes may not be as 'serious' as those of Dayton Leroy Rodgers. The fact is that each of the killers mentioned by Mr. Long committed crimes horrific beyond imagination. Why should such people receive a windfall benefit simply because we cannot come to grips with Dayton Leroy Rogers?

What once appeared to be a viable statute has been rendered virtually inoperative and expensive beyond measure due primarily to judicial tinkering. Inexplicable delays, changing and evolving rules and seemingly inexhaustible appeals which seem designed, not to facilitate the search for truth, but rather to circumvent the jury's verdict have too often become the order of the day. While other states seem to have worked out problems in implementing their death penalty statutes, Oregon has been unable to do so. The past being an indication of the future, there seems no prospect additional time will have a salutary effect. The time has come to consider abandoning the effort in favor of a less draconian but more workable sanction.
Charles H. Turner
Kingston, Wash.

Courts Not Yet Done
Did the 1983 Oregon Legislative session 'temporize' with the death penalty issue, as the writer of the April 2002 OSB Bulletin article states on page 10? I think not.

The record discloses that the only proposed legislation in the 1983 session related to the death penalty was introduced at the request of the then governor, Victor Atiyeh. The legislation did not pass. It did not come out of the first committee to which it was referred, the House Judiciary Committee. It was rejected in that manner. No legislator in either the House or the Senate put in any proposals on the subject in the 1983 session.

A few years before 1983, then Senate President Jason Boe had advocated across the state for the death penalty for 'heinous' murders but, as most lawyers (and the U.S. Supreme Court) agree, the concept of which murder is 'heinous' is subjective and not a legal standard that could be even-handedly applied.

That was mooted when the 1978 death penalty law was held to deprive the defendant of a jury trial by the Oregon Supreme Court.

As reported in the Bulletin, Oregon's present death penalty statute was borrowed from Texas by private individuals and was not initially the product of any legislature. In Texas and Oregon (and some other states) the jury imposes the death sentencing, not the judge. The jury does so by answering a formalized set of questions.

The jury was restricted by the three questions asked. No question was asked that allowed a finding of mitigating circumstances. That defect was of concern to the U.S. Supreme Court.

Texas defendant Penry was significantly retarded but the Texas process and jury instructions did not give the jury the right to consider that defect in making its life or death decision about Mr. Penry. Both the Texas Appellate Court and the Oregon Supreme Court originally okayed the statute in its restricted form. But after the U.S. Supreme Court said that would not do and sent the Penry case back to Texas for a new jury sentencing, the Oregon Supreme Court reinterpreted the Oregon statute to give the jury more, but not much more, leeway in deciding whether to sentence the defendant to life or death, while presumably allowing the jury to apply the non-unanimity requirement of Mills v. Maryland in choosing a life imprisonment option.

Two other factors, not mentioned in Mr. Long's article, argue strongly for clarification of the jury's power and role in imposing the life or death sentence. Although it was not always so, the family of the victim is permitted to add their pleas to those of the government. The jury that will decide is already skewed toward death. A sizeable minority are excluded. All persons who oppose the death penalty are excluded from that jury by the government's declaration that the death penalty will be sought.

I would suggest that the courts are not yet done with determining the jury's place in imposing the death penalty.

In Oregon, the form and even the content of the questions put to the jury that limit the jury's response still need constitutional work. And some more edification may come from the U.S. Supreme Court this term where several death penalty decisions are pending, including one from Arizona which has quite a different statute than Oregon and Texas, one that excludes the jury from the life or death decision.
Edward N. Fadeley

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