Oregon State Bar Bulletin — APRIL 2015

“Things look different here,” a familiar former Oregon tourism theme, certainly is true of one facet of the state’s criminal justice system:

Ours is the only Western state that does not require verbatim recording of grand jury testimony. A total of 34 states impose what is referred to as mandatory recordation, either by statute or by judicial rule.

Changing that situation is “important in the larger national context, where people are calling for jury reform and Oregon doesn’t even meet the baseline of grand jury reform,” says Rep. Jennifer Williamson, D-Portland, an attorney who is co-sponsoring legislation this session that would require courts to create a verbatim record of grand jury proceedings, except when the grand jury is deliberating or voting. Recording is “the national norm,” it “ensures transparency and keeps accountability for the prosecution,” and it verifies that there is “no overreaching,” she says. Williamson notes that a federal courts requirement for recording grand jury proceedings has been in place for over three decades. (See sidebar on page 22 and 23.)

Whether a change is needed has been a point of contention for many years between prosecutors and defense attorneys. The district attorneys generally have maintained that Oregon’s system works well, while the defense bar has argued that the current setup is unbalanced in terms of fairness, and that they and their clients are left in the dark as a result of not having access to what witnesses told a grand jury.

The question of mandatory recordings and other grand jury reforms has received greater attention in recent years in light of several incidents in Oregon and elsewhere involving lethal force by police officers and subsequent grand jury decisions. Although Democrats hold majorities in both houses of the 2015 Legislature, proponents of mandatory recording insist that it is not a partisan issue, partly as evidenced by a recordation bill co-sponsored with Williamson by Sen. Jeff Kruse, R-Roseburg.

“When government takes actions that potentially impact people’s liberty, it should occur in a recorded or open forum,” maintains Eve Oldenkamp, a Klamath Falls defense attorney who is president of the Oregon Criminal Defense Lawyers Association. “It should be recorded so that there is an accountability for constitutional rights.”

If modification is made in the way grand juries run, prosecutors want to be part of the discussion, and they also want to be sure the Legislature and the public know exactly what is trying to be achieved by recording testimony, as well as what the consequences of doing so might be, says Robert Hermann, Washington County district attorney and president of the Oregon District Attorneys Association.

“I was unaware of the fact that the proceedings are secret,” says Kruse. “It just makes sense to me that we have a full recording of the proceedings,” which would allow both the defense and prosecutors to discern whether witnesses’ testimony in the grand jury matches that given in court. “For me, it’s not any more complicated than that.” He says the details that need to be worked out are: under what conditions the defense attorney would be able to have access to a portion of the grand jury proceedings, and in what form that would take.

“I’m a farmer, not a lawyer, but I know common sense when I see it, and this makes common sense,” Kruse says.

Multnomah County differs from the rest of the state in that it does record grand jury testimony, but only when police use of physical force is involved, especially where death occurs, according to Rod Underhill, district attorney of Multnomah County. That policy has worked well, overall, he says, and most important, it helps the public to have confidence in decisions made by the grand jury.

However, he adds, “What’s good for Multnomah County is not necessarily good for other counties.” A strong desire exists around the state to allow individual counties to determine what procedures are best for themselves, Underhill notes.

Discrepancies in Testimony

A lawyer who has seen the issue from both sides is Jason G. Short, who now practices criminal defense in Portland but previously served as a deputy district attorney in Washington County for nearly eight years, where he handled many grand jury proceedings.

“I’m in support of having grand juries be recorded,” he says. A court clerk appoints one juror to take minutes, but Short says these juror notes vary widely in usefulness and don’t provide a thorough account of the testimony given. Perhaps only half of what witnesses say under oath in grand jury proceedings gets documented in notes, and if testimony then and during trial differs, having a verbatim recording of what actually was said would benefit both sides, he contends.

Presently, in accordance with Oregon statutes, the district attorney retains the clerk’s grand jury notes and the defendant has no automatic right to pretrial access to the notes. In order to get access to those, the defendant must submit a motion to the court showing that there is a specific legal or factual basis for access to the notes in that case.

“If the court believes that the notes are relevant, either side would rather have a true version,” he says. “It’s much more thorough; there’s no room for error as to what was said or asked.”

Short adds, though, that under our current system, “if a witness tells different stories, the prosecutor would be under an obligation to notify me.”

Doug Marteeny, district attorney for Linn County, agrees. “We have the duty to bring forth those types of deviations,” he says.

Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense. This includes any evidence favorable to the accused — evidence that goes toward negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence related to the credibility of a witness. Underhill notes that under Brady, prosecutors must supply discrepancies in testimony to the defense attorney — and adds that that is happening: “The defense is getting all the information that they should,” Underhill says, citing as an example a case where a witness changed her story and juror notes verified the disparity. “Disclosure was made to all parties. The system worked,” he says, adding, “Prosecutors need to be diligent.”

Gail L. Meyer, a lobbyist for the Oregon Criminal Defense Lawyers Association, says the defense bar introduced and passed Senate Bill 492 in the 2013 session, which codified the Brady rule into the discovery statute, ORS 135.815. Her association thought codification was necessary, partly because she says district attorneys were under the misimpression that they were required to disclose only evidence about which they themselves were aware. Instead, Brady imposes on prosecutors the “duty to inquire” of the police whether they have any evidence within their possession that is potentially favorable to the defense.

Recording grand jury testimony and “breaching its secrecy” potentially could jeopardize one of the oldest tenets of grand jury law: protecting the innocent accused, says Hermann. Under the current system, if the defendant is not indicted, the jury notes must be destroyed, a provision that protects the accused from public vilification, he says.

“Any informed and meaningful discussion of the merit of mass grand jury recordation should include the history and import of grand jury secrecy,” he adds. “The true function, workings and role of the grand jury need to be understood.” He notes that the U.S. Supreme Court has discussed the secrecy requirement in numerous cases, including United States v. Sells Engineering, in 1983. “The potential chilling impact on witnesses and victims, especially vulnerable victims,” and on grand jurors themselves are among important factors to consider, Hermann says.

“The request for recording has been on the defense bar’s agenda for a long time,” says Marteeny. “Is this an attempt to have an additional discovery tool? I hope not. We don’t want to get rid of the protections in place.”

An Extension of the Court

Randall W. Cook, an attorney with Saalfeld Griggs in Salem who specializes in employee benefits and executive compensation, served as a foreman on a grand jury in April 2014. Although he says the prosecutors generally conducted themselves professionally, he was perplexed when they allowed some witnesses to introduce hearsay evidence. A state statute forbids supplying grand jurors with inadmissible evidence.

“If grand juries’ proceedings were recorded, I’m sure it would reduce that,” because if the D.A.s knew that grand jury proceedings were being recorded, they probably would be much more careful about particulars such as letting witnesses give hearsay testimony, he says.

The only objection Cook has heard to recordation is that it could slow down the grand jury process. Instead, he thinks what it ultimately could slow down is the criminal proceedings process itself, “because defense attorneys would likely routinely request a transcript, and when they got that transcript, they would have some fertile ground from which to mount a defense.”

He clarifies that the transcripts “wouldn’t necessarily be fertile ground to challenge the indictment itself. Rather, the transcripts would be fertile ground from which to mount a defense at trial, or at least to put the prosecution and the defense on equal footing when negotiating a plea bargain. That is because the transcript would reveal things like witnesses who contradicted other witnesses who appeared before the grand jury. Or the transcript might reveal evidence that the D.A. presents to the grand jury but decides not to present at trial because the narrative that the D.A. decides to present at trial changes between indictment and the trial date.”

Emphasizing that “I don’t have a dog in this fight,” given that he doesn’t practice criminal law, Cook recalls that his initial exposure to grand juries was from a high school civics class. There, he learned that a grand jury is designed to protect ordinary citizens from being charged with a crime “based on flimsy evidence.” His experience serving convinced him that such a scenario is not what is actually playing out in the grand jury room.

“My impression is that, as a practical matter, the grand jury room is where the D.A. starts building their case. It’s not two sides presented, it’s one side — the side that wants to get the indictment. If I was a defense attorney, I would like to know what went on in the grand jury.”

Cook says what the grand jury does is important, because “it determines whether or not someone gets indicted.” But if the idea is “protecting ordinary citizens from being taken to trial by an aggressive government, that’s not what’s going on.”

Hermann responds that the grand jury in fact “is part of the checks-and-balances system.” They stand between citizens and the government. Of Washington County residents who get called for regular jury duty each year, the court “draws cards” from that pool to select the about 350 individuals annually who serve on grand juries, he says. Unlike with regular juries, no individuals can be eliminated from the grand jury by challenge. The result is that grand jurors are of diverse ages, ethnicities and backgrounds, he points out, and they are who make the decisions.

Underhill concurs, noting: “The grand jury system by statute, by law, is an extension of the court, not the district attorneys. The court selects the grand jury members; I’m not in the room where that occurs.”

“These are the court’s grand juries,” adds Marteeny. “In my county, the court chooses the grand jurors, then the court speaks to the grand jury about the importance of looking at all the evidence, and describes the important role of the grand jury. We take part in that process ourselves. Prosecutors are dedicated to justice, and never want to indict someone who is innocent.”

“A provision in statute actually allows the grand jury to go to the court if in doubt about facts,” notes Hermann.

Multnomah County prosecutes about 5,000 felony cases per year, and “a significant number result in an indictment,” says Underhill. “If grand jurors felt that they were being misused or felt like rubber stamps,” or thought that “untoward behavior” was taking place, the media and public would hear about it, he adds. The reason they don’t is “because of the professionalism that occurs,” he says.

Defense attorneys point out that counties vary in who presents orientations and instructions to grand jurors, and in how presentations are made, and that no Oregon statutes are specific to either point.

Weighing the Cost

Another lawyer who, like Short, has seen both sides of the fence is Timothy R. Park, who now practices criminal defense in Dallas, Ore., but previously served as an assistant district attorney in Polk County for seven years. He says that in his county, the presiding judge talks to the grand jurors, then the D.A. gives an orientation to them. As a result, the district attorney becomes a familiar face to grand jurors who serve.

“There becomes this level of trust seeing them every day. If you contrast that with a trial jury, we would never do that,” to allow such familiarity to the point that grand jurors come to think, “This guy knows what he’s doing,” Park says.

He acknowledges that some Oregon district attorneys have expressed concern that if recordings of grand jury proceedings were made mandatory, some witnesses might be reluctant to testify as witnesses.

“I don’t know if that’s really true,” he says. “It doesn’t strike me as a compelling argument.” An “in-between position,” balancing the need for privacy and secrecy versus gaining additional public trust in the outcome, should be achievable, he says. “There should be a middle ground that meets both concerns.”

As a defense attorney, he recalls a case where a prosecutor brought multiple charges against his client, but substantiation could be made to only two charges. If he as the defense lawyer had had access to a recording of the grand jury’s proceedings, he would have been able to identify those discrepancies immediately. But Park believes that having recordings of proceedings would be beneficial to the government, as well. “If my witness goes sideways, I want to know about it,” he says.

“I think there should be some method of recording grand jury proceedings,” Park says. “It’d have to be under the auspices of the presiding judge in each county.” He thinks recordings would be reviewed primarily in domestic violence cases, where witnesses may change their testimony later at trial. Access to recordings is “one of those things that isn’t going to be important until it is.”

“The government is protected in their case by having a verbatim statement,” in the opinion of Meyer, a former criminal defense attorney. “If a witness goes sideways on the D.A. at trial, the D.A. can immediately rehabilitate or impeach the witness with the transcript of their prior grand jury testimony. This is very important in domestic violence cases, child sex-abuse cases, gang cases — whenever a witness might give different testimony at trial, for any number of reasons. If you talk to a D.A. from another jurisdiction where they actually record, they say they would never want to do a grand jury without a verbatim record. Once they’ve got the testimony locked in at the grand jury phase, they feel much more secure about their case.”

Some district attorneys express concern that mandatory recording would be expensive, especially for some counties. “Anytime you record something,” the costs incurred are in labor, says Linn County’s Marteeny. He says keeping files of everything said in grand jury proceedings would put a further burden on the courts. “I anticipate, at least for my jurisdiction, to see more motions filed challenging the process,” he adds.

Phil Lemman, legislative communication manager for the Oregon Department of Justice, says the courts are concerned about the impacts to court staff and resources if grand jury recordings become required. “If preliminary hearings replace grand juries as the primary method of bringing a felony charge, as some district attorneys have indicated would occur if grand juries are recorded, there could be an additional impact on court dockets,” he says. “In 2013, 32,000 felony cases were filed in the state, so the impact on dockets could be substantial.”

Lemman says the Judicial Department will ask the Legislature to consider the need for additional resources if any change is made to the way grand juries function. Courts would need to buy recording equipment; train grand jurors to operate the equipment; catalog and store the recordings; and respond to requests for copies of the recordings.

There also might be additional costs outside the courts, he adds. For example, would indigent defense cost more? Would there be fewer indictments and prison costs? “When you make a change in any part of the criminal justice system, it causes changes elsewhere,” he says. For instance, if legislation allows the presiding judge the option of deciding whether to use electronic recording or a certified court reporter, more expenses would be associated with having a court reporter.

Grants Pass defense attorney Holly A. Preslar says that even though her county, Josephine, has seen law enforcement capabilities severely reduced because of lack of funding, the argument about cost of recordation “is not really relevant anymore,” because in the “digital age,” most courtrooms don’t use court reporters now. The costs associated with taping and storage that might have been incurred in the past no longer exist with digital recording, she says. Besides, she adds, “Funds can’t dictate the right to fairness.”

The defense lawyers association’s Oldenkamp seconds that assertion, noting that soon all courtrooms will have electronic filings, and that electronic recording is not difficult. “The accountability to the people — you can’t really put a price on that,” she says. The public will gain more trust if proceedings are recorded, she asserts. “Government accountability to its citizens should not have a price tag.”

Portland defense attorney Short says if cost is the only stumbling block to recordation, “that cost could fall on us,” referring to the defense. “I wouldn’t be opposed to paying for that.”

The Legislature’s Williamson has met with district attorneys and the defense bar to try to take into account all sides’ concerns. “My hope is that as a legal profession, we can come together and make a better policy.”


Cliff Collins is a Portland-area freelance writer and frequent contributor to the Bulletin. Reach him at tundra95877@mypacks.net.

© 2015 Cliff Collins

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