Oregon State Bar Bulletin — JULY 2004

Secrecy:
A Help or a Hindrance?
By Janine Robben

The federal war on terror isn’t the only place where government secrecy has been an issue in Oregon this year.

In Clackamas County, a lawyer who became a grand juror engaged the district attorney in a publicized debate over whether the system serves its purpose.

And in Multnomah County, a fatal police-involved shooting drew renewed attention to the question of whether grand jury proceedings should be recorded or otherwise made available to the public.

"I think the grand jury does serve a purpose," says Multnomah County District Attorney Michael Schrunk. "It’s public oversight. We’re not asking them (the grand jurors) what books they read. There’s no voir dire. It’s a chance for citizens to see what comes in and to work with victims, witnesses and the occasional defendant."

But Rose Hubbard, a family practice attorney who was picked at random to serve as a grand juror in Clackamas County in February, disagrees.

"What I saw consistently was the deputy district attorneys presenting cases to grand jury and not following the rules," says Hubbard, who complained about her experience to Clackamas County District Attorney John Foote, the state bar Bulletin and the Lake Oswego Review. "The grand jury system doesn’t work. I was very surprised."

Under Oregon law, a grand jury’s job is to determine whether the evidence presented to it, if uncontradicted or unexplained at trial, is sufficient to support a conviction. ORS 132.390. Generally speaking, the rules of evidence apply, ORS 132.320, and national standards remind prosecutors to respect the panel’s independence and to not unduly influence its decisions.1

Bradley Berry, the president of the Oregon District Attorneys Association, says that in his experience, grand juries do function independently.

"It is a misconception that grand juries are a rubber stamp for the prosecution," he says. "They truly act independently in my experience, issuing ‘true bills’ most of the time; adding, deleting or changing charges; and issuing ‘not true bills’ when the evidence doesn’t support a ‘true bill’ finding."

Under Oregon law, a grand jury proceeding is one of two prosecutorial options for getting a felony charge before a trial jury. (The other is a preliminary hearing before a magistrate, Oregon Constitution, Article VII, Section 5.)

Until 1983, Oregon district attorneys had the option to use either procedure at will. Then, the Oregon Supreme Court ruled that failure to have a consistent policy for the use of grand juries versus preliminary hearings violated prospective defendants’ Constitutional rights to equal protection and due process. State v. Freeland, 295 Or 367, 370, 667 P2d 509 (1983).

Since then, says Berry, all Oregon district attorneys have — to his knowledge — opted to use grand jury instead of preliminary hearings.

"My guess is that the courts were very fond of this move, and that a shift back to preliminary hearings would seriously impact available judicial time and resources," he says.

Unlike preliminary hearings, grand jury proceedings are held in secret. Grand jurors are barred from disclosing the proceedings; the "counsel" they receive from the deputy district attorneys who present cases and even their own counsel and that of their fellow grand jurors. ORS 132.060.

From a district attorney’s point of view, grand jury secrecy serves a valuable function.

"Secrecy protects the witnesses and protects the accused," says Schrunk, "especially with allegations of a sexual nature or involving corruption. If they were made public, it could do irreparable damage to the suspect."

Berry concurs. "Witnesses may be willing to come forward and testify candidly to the grand jury because they recognize that the defendant will not know exactly what they said," he explains. "It protects them from retribution."

Berry says that the secrecy also protects the integrity of the grand jury process.

"Because the proceedings are confidential, grand jurors do not respond to public pressure or sentiment in looking at the facts and making a decision," he says.

But in the view of Hubbard — and at least some Oregon defense attorneys — secrecy does not further the grand jury’s mission.

"The attitude is, district attorneys do not have to follow the same rules that other attorneys do," Hubbard complained to the state bar Bulletin and the Lake Oswego Review. "If they don’t like you, if you ask questions, if you expect that they should follow the law and the rules of admissibility of evidence, if you don’t rubber-stamp their charges — no matter how thin the evidence — they will simply forum shop and find another grand jury that will rubber stamp."

Clackamas County DA Foote says that Hubbard’s perceptions may have been affected by her prior involvement, as a defense witness, in a 1998 case that was handled by the Clackamas County District Attorney’s Office prior to Foote’s tenure.

"Hubbard’s bias toward the Clackamas County criminal justice system has been observed by many of the detectives and prosecutors who handled the (1998) case," he wrote in response to Hubbard’s letter to the Review.

"After Hubbard began her grand jury service, she called me and raised her complaints. I requested reports from each of the deputy district attorneys she accused of inappropriate conduct. I am not able to report the details of what occurred in the grand jury because of the laws that make grand jury proceedings confidential. However, I can report that Hubbard’s complaints were not supported by the reports of the deputy district attorneys who were present (during her term)."

But Hubbard is not the only Oregon attorney with concerns about grand jury secrecy.

"The grand jury system is unfair in so many ways," says Portland attorney Lawrence Matasar, who represented the Portland Police Bureau officer involved in the Multnomah County shooting earlier this year. "You learn so much by what witnesses say, how they look and how they comport themselves. The prosecutor gets to see that (in grand jury), and we (defense attorneys) don’t."

Matasar disputes the notion that grand jury secrecy exists, in part, to benefit his clients.

"That’s very nice of prosecutors to think of the poor defendant," he says. "But there are other ways to assure secrecy, such as making grand jury testimony, like discovery, accessible only to the defendant. I think it should be recorded. There’s no reason why it should not be recorded."

Senate Bill 30, which would have required grand jury proceedings to be electronically recorded, was sponsored by the Oregon Criminal Defense Lawyers Association and was introduced at the 2003 session but did not make it out of committee.

According to Foote, the recording issue produced "quite a split in opinion" among members of the Oregon District Attorneys Association.

"The majority felt that it would impair the ability of the grand jury to function," he says. "And they were worried about the cost, because the whole system is broke."

The recording issue also was raised in Portland this spring, when the fatal shooting of an African-American motorist by Matasar’s client resulted in a community outcry about police accountability. A Multnomah County grand jury heard evidence but did not indict the officer.

"There’s an inherent conflict of interest with the district attorney being allowed to present evidence with regard to officers he relies on on a daily basis," says Raymond Crutchley, a Portland attorney who is of counsel to the Portland chapter of the NAACP.

"How can the community rely on a system in which all of the parties are on the same team?" he asks. "The DA has a great deal of influence over the grand jury. It at least gives the appearance that he may be able to control the outcome."

A bill that would have required grand jury proceedings to be recorded in cases where peace or corrections officers have used deadly force, introduced during the 2003 legislative session, House Bill 3426, did not make it out of committee.

Crutchley says that the chapter is working on another bill, whose provisions may include the use of a special prosecutor in cases involving the use of deadly force by law enforcement officers.

Crutchley says that the bill also may include a requirement that grand jury testimony in such cases be recorded and perhaps made available to the public.

But the chapter is not, he says, necessarily seeking to have grand jury proceedings themselves made open to the public.

"It’s still important to have a grand jury that’s not pressured," he says.

Endnote

1. Standard 3-3.5, Relations With Grand Jury, ABA Standards for Criminal Justice Prosecution Function and Defense Function, Third Edition, 1993, and Standard 60.1-3, Prosecutor’s Relations With the Grand Jury, National Prosecution Standards, Second Edition, 1991, published by the National District Attorneys Association.

ABOUT THE AUTHOR
Janine Robben is a Portland writer and reporter. She has been a member of the Oregon State Bar since 1980.

© 2004 Janine Robben


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