Oregon State Bar Bulletin — FEBRUARY/MARCH 2003

Legal Aid
I write to present a perspective different than that expressed by James Hackett’s letter in the December 2002 issue. Mr. Hackett is critical of Legal Aid Services of Oregon (LASO) and the Oregon Law Center (OLC) for pursuing class action litigation and 'chasing newspaper headlines' instead of focusing on 'day-to-day legal matters of low-income clients,' and endorses withholding contributions that would support these organizations, including contributions to the Campaign for Equal Justice.

There are instances in which a class action is the most economical, appropriate and powerful method for legal aid lawyers to address the day-to-day legal needs of low-income clients they would not otherwise be able to serve, due to lack of funding. Sorenson v. Concannon, 161 F. Supp. 2d 1164 (D. Or. 2001), is an example of such a class action. That case resulted in substantial benefits for a class of legal aid clients, and the funding used to pursue the case was replenished when defendants paid over $1 million in attorney’s fees and costs to legal aid.

I encourage Mr. Hackett, and any other member questioning the benefit of contributions to the Campaign for Equal Justice, to talk to legal aid lawyers about their practices. I believe you will find dedicated lawyers making personal and financial sacrifices on a daily basis for the benefit of low-income clients, not headline seekers.

Jury Records
Rose Jade’s article gives an inaccurate description of the state of the law governing jury pools ('Jury Pools,' January 2003). This area of the law can be both complicated and boring, but any interested reader needs to understand its history.

Before 2001, ORS Chapter 10 made jury records confidential. A number of capital defendants sought the records in order to learn if the jury pools determining their fates were drawn from a fair cross section of the community. The State Court Administrator resisted these requests, saying she believed the statute did not permit her to release the records. One trip to the Oregon Supreme Court resulted in a ruling that the SCA could release the records. State ex. Rel. Click v. Garner. A second trip explored whether the SCA had to release the records. State v. Staudinger. As that was pending, the 2001 Legislature passed a new version of ORS Chapter 10 and ORS 136.005, setting out a mechanism for criminal litigants to obtain jury pool records. The Staudinger case was dismissed.

Another capital defendant requested the records under the new statutes. The trial judge ruled he had made an insufficient showing that he needed the records. A third trip to the supreme court ruled the trial judge was incorrect. State v. Rogers. To get the records, a criminal litigant must follow the 2001 statutes, making allegations that there has been a 'material departure from the requirements of the law governing selection of jurors * * *.' This must be supported by an affidavit setting out why the party alleges there has been a 'material departure.' ORS 10.275, 136.005. The criminal defendant does not have to make a showing that the system is defective. The criminal defendant has the burden of going forward (as he would, for example, in a motion to suppress), but he does not have the burden of making a showing or an initial burden of proof.

The statute provides that it is the exclusive mechanism to obtain confidential jury records. ORS 10.275(5), 136.005(4).

This issue has not been completely resolved in the courts, but in my experience after the Rogers decision, when the criminal litigant follows the new statute, the litigant will receive the records.

As expressed in her article, Ms. Jade believes the statute is defective. As a result, she has brought jury challenges under the public records law, ORS Chapter 192. In every case when she has requested confidential jury records under the public records law, however, she has been denied those records under the axiomatic ruling that under the plain terms of the statutes, ORS 10.275 and 136.005 set out the exclusive mechanism to get the records.

Oregon law takes pains to protect the privacy of jurors. See, e.g., DR 7-108, UTCR 3.120, prohibiting most contact with jurors. Other states are less protective than we are. Ms. Jade may find Oregon’s policy choice shocking, but that does not make it unconstitutional.

In contrast to Ms. Jade’s proposal that jury records be available to the public, I think there should be two specific changes in Oregon law which would both ensure that juries represent a fair sample of the population and which would also continue Oregon’s policy of protecting jurors’ privacy.

First, there should be uniform rules. As it is now, each county follows its own individual policies (written and unwritten) to draw jurors from the state-supplied master list, and to summon (and excuse) jurors for each term. Uniform rules would help create uniform policy statewide, and would be subject to public review.

Second, the entire system used to summon jurors should be regularly audited by a neutral auditor to determine if the juries summoned are a fair sample of the population. A demographer with the raw data and some legal guidelines can make this objective determination. As far as I know, nobody is doing so.

In my view, it makes more sense to have this demographer be a neutral auditor who regularly reviews each county’s procedure, rather than have the demographer be the agent of a specific litigant. If questions remain, a litigant could get those records and work papers and audit the audit. It is unfortunate that right now capital litigants, and the indigent defense fund, is responsible for seeing that this important oversight be done.

Note: The author has been involved with this issue since 1999, and represented Staudinger and Rogers before the Oregon Supreme Court. The issue is pending in her cases in several counties currently.

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