Oregon State Bar Bulletin — APRIL 2003

Parting Thoughts
Different, but Dignified
By Charles French

It is an all-too-common spectacle, and one that makes many Oregon lawyers cringe. Following a high-profile jury trial, jurors are assembled, somewhat dazed, before a bank of microphones and grilled by members of the press, often with questions provided by attorneys appearing in the case. Legal experts hired by the media then proceed to disassemble, analyze and reconstruct the jurors’ opinions, all to be packaged in a fifteen second soundbite.

Fortunately, it does not happen that way in Oregon. Strong legal traditions, state statutes and significant bar regulations prevent attorneys in this state from trying cases in the media and from intruding on the deliberations and private lives of jurors. It is a situation that most Oregon attorneys appreciate, especially after observing one media circus trial after another beamed to us from neighboring states.

Unfortunately, that tradition is under attack, as the article ('Jury Pools,' January 2003, by Rose Jade) demonstrates. While the tone of that article appears tempered and reasonable, the actual practice of what she describes as 'a five-year battle over access to jury records' represents a radical departure from the procedures and decorum that have, up to now, graced Oregon trial practice. Not mentioned in the article is the fact that those advocating access to jury source lists, in Multnomah County at least, have also sought court permission to use those lists to contact prospective jurors and to interview them prior to trial. It is a disturbing position that surpasses any of the excesses that have made us uncomfortable about post-trial press interviews of jurors in other states.

The article asserts that '(t)he fact that (access to juror source lists) is an issue at all may shock readers familiar with ORS Chapter 7, the Oregon Public Records Law, … the First Amendment to the U.S. Constitution and the state counterpart, article I section 8 of the Oregon Constitution.'

It should not, however, shock those who have read ORS 10.215, also omitted from the article, which specifically prohibits the state court administrator or circuit courts from releasing source lists to anyone. Indeed, Oregon law has long prohibited the use of these source lists for any purpose except subpoenaing jury venire panels.

Oregon law does outline a process to overcome this presumption of confidentiality. The sole mechanism to consider the release of these confidential records is found in ORS 10.275. That statute permits the release of these source lists only if a court finds, '(1) the jury records sought are likely to produce evidence relevant to the motion, and (2) production of the jury records is not unduly burdensome.' Where litigants can demonstrate some problem with the jury assembly process they should be allowed access to the source lists, if such access is not unduly burdensome. If no such demonstration can be made their request should be denied.

On both of the statutory requisites of ORS 10.275 it is difficult so see how a litigant might prevail in convincing a court to release jury source lists, at least in Multnomah County.

As the article indicates, the constitutional violation suggested by these requests for juror source lists is generally a supposed violation of the 6th Amendment, which requires that juries represent a 'fair cross-section' of the community. The article’s author, Ms. Jade, herself recently testified in this county that she has no evidence whatsoever that there are any violations of the fair cross-section provision in the county’s jury selection process. (The trial court denied her request to release source lists in the three cases for which she presented that position.) Furthermore, the actual statistical evidence is directly contrary to her position. Statistical documentation of jurors appearing for trial in Multnomah County in a recent homicide case, documentation assembled by a defense statistical expert in March 2002, concluded that 'the system employed by the county to construct the juror lists appears to appropriately sample/contain a representative population of the residents of Multnomah county.' Based on this report, prepared by an expert hired by the litigant seeking access to the records, the trial court also denied the release of the source lists in that separate case.

Given the findings and documentation in these cases it is difficult understand how releasing juror source lists could produce evidence relevant to a constitutional claim that has already been demonstrated, by a defense survey moreover, to be flawed, at least in Multnomah County.

Addressing the second requirement, whether release of the lists would be burdensome, defendants in this county have requested statistical surveys of these lists by experts, which they estimate would cost up to $17,000. Given the crisis in the funding of indigent defense in this state, it is difficult to understand why spending this type of money again and again to investigate a proposition that has already been established in court, again at least in this county, would be anything but burdensome.

Serving as a juror is a difficult proposition, with little reward but the satisfaction of knowing that you have in some small way answered the call of your community. Oregon law has long protected the dignity of the judicial process by protecting those who serve in that capacity. In doing so we have once again charted a different course from that followed in many other states. It is a course which has made lawyers in this state justly proud of the manner in which we conduct our profession.

If litigants in this state can actually demonstrate that something is amiss in the jury assembly process, they are entitled to access to these source lists under Oregon law. Until that showing is made, however, the law and the legal traditions of our state require the protection of the confidentiality of these jury rolls.

The author, a senior deputy district attorney for Multnomah County, has prosecuted criminal cases for more than 20 years.

© 2003 Charles French

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