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2010-10-18T13:03:00.001-07:00

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Defendants get a bargain

2010-10-13T21:09:00.000-07:00

published Thursday, October 14, 2010

A study released last week by the Brennan Center for Justice raised concerns that assessing convicted criminals fees for their public defenders would somehow dissuade them from exercising their constitutional rights or unfairly burden those who are broke.

More than 95% of crimes are prosecuted by locally elected prosecutors,
called district attorneys in most states. We live and work in the community alongside both the victims and the defendants. We are well aware of the tough economic times, which hit the victims of crime much harder than those who prey on them. And the poor are much more likely to be victims of crime.

When the citizens are asked to bear the cost of providing a lawyer for anyone who can't afford one, it is not unreasonable to ask those found guilty to pay at least part of that cost. In Oregon, that means about $300 for a misdemeanor and rarely more than $1,000 for a felony.

Given the value of the excellent legal representation many defendants receive, they are getting a bargain. Anyone who hired the same lawyers would be expected to pay a retainer several times that amount. And, unlike many of the portrayals on TV, public defenders usually offer outstanding representation.

Prosecutors have also come up with innovative early disposition programs, recognizing that most crimes don't need a sentence of jail or prison. These programs are under fire by some defense attorneys because the defendants choose not to avail themselves of a court-appointed lawyer. Often, the prosecutor offers community service, or even reduction of the charge, so the defendant ends up without any criminal record whatsoever.

The offender and the community benefit when people are held accountable, but not punished so severely that they can no longer work. The "broken window theory" — which says pay attention to the little things and they won't become bigger crimes — has proved a success. Americans are much safer now than they were 20 years ago.

We should never expect the justice system to be a revenue center for local or state government, but that doesn't mean that those who violate the law should get a free ride.

This opinion was solicited as a response to a USA Today Editorial Board View.

National Day of Remembrance

2010-10-07T11:46:00.000-07:00

I was asked to speak at the National Day of Remembrance for Murder Victims, in Oregon City, on September 24th. I was honored to speak after Attorney General John Kroger. These were my remarks to the approximately 100 members and supporters of Parents of Murdered Children:

I am humbled to be here among the survivors of the very worst thing that can happen to a family - the senseless loss of life out of time out of place -- and I never cease to be amazed by the grace and the eloquence of a victim’s family.

POMC is not a political organization and the rights of victims are not a partisan issue.

One of the most important rights we fought for and won - first in 1986 with Measure 10, then in Measure 69 in 1999 - was the right for the survivors to speak at the sentencing of the person who caused the loved ones’ death.

That simple right, that basic decency, may seem normal and expected to some of the younger people here. But 30 years ago there was no such right. Some claimed it would deprive the defendant of some basic right. But the right to be heard, the need to speak for the dead is too important not to ensconce in our constitution, where it properly sits today.

Over the years I have come to know remarkable people after they are gone.
I’ve learned of them through the memories of their families and friends, through the photographs and letters their family collected.

I recognize that as a prosecutor I am working with people at the very worst moments of their lives. When the world seems to have broken all around them, when the rules have all seem to fallen apart, when they are adrift in a sea of complex legalisms that all too often seems indifferent to their loss.

Out of this darkness I have been heartened to find the strength, the dignity, the passion, and the truth that these families speak.

I often stay in touch with them and when I’m lucky I run into them out of happenstance or, less welcoming for them, at a parole hearing to try and keep the killer in prison.

I’ve been trying murder cases for 25 years. For almost 20 years I’ve tried one case over and over again because of a promise I made those two decades ago to that family.

That promise was to stay the course until justice was done.

That voyage made its fourth trip through a courtroom in Bend this summer and a measure of justice was achieved.

Once again the family summoned the courage, the strength and the dignity to speak of the LIVES of the two people who were murdered in 1987.

The presiding juror later told me that, during deliberations, the jurors had put up in their room the one relatively small photo of the victims that I had been allowed to enter into evidence. The photo was to remind the jurors of why they were there.

Many ancient cultures believed the souls of the departed lived on so long as they were named and remembered.

Today we honor and remember those who you loved and lived with us.

NDAA Summer Meeting, Napa, CA

2010-07-16T10:49:00.000-07:00

The National District Attorneys Association summer conference in Napa,
California featured a great speech by former Supreme Court Justice
Sandra Day O'Connor, who told us that the only job she could get as a
Stanford Law grad back in the day was at the DA's Office in San Mateo.

I was stunned to receive the "Home Run Hitters Award" in recognition for
my work on the Houser (Guzek) case. (I think we should start calling the
cases by the names of the VICTIMS not the killers.) That's a customized
genuine Louisville slugger bat with my name engraved on it.

with Chris Chiles, NDAA President and DA of Cabell County (Huntington), WV

The award is the brainchild of Fayette Commonwealth (Lexington, KY) DA Ray Larson
and is given at no regular interval. As co-chair of NDAA's Media
Committee I have advocated that it be given -- as it almost always is -- to
non-elected working prosecutors, so I was very surprised and moved.

July 4

2010-07-04T10:30:00.000-07:00

Considering she is 234 years old today and accounting for all the wrinkles
and scars, the United States of America is looking pretty good for her age.

On the wall of my office I have a framed copy of what is called the
"Gadsden flag," one of the original flags of the American Republic. It
displays a coiled rattlesnake on a yellow field with the words "Don't Tread
on Me" below the snake. The flag's history -- like all American history -- is
fascinating and complex.

Over the last two centuries-plus, different groups have used the Gadsden
flag; at the moment the Tea Party Movement has tried to appropriate it.
Well, like so many icons and concepts of American liberty and freedom, it
doesn't belong to them. It belongs to us, like the other tenets of the
American Constitution which expresses reserves in the 9th Amendment --
that rights not otherwise enumerated to the government belong to . . .
the people.

I must confess that I get profoundly depressed by the general lack of
knowledge about the Constitution, American history, and the reason for
the symbolism that is laced through our popular culture -- the reciting of
the Pledge of Allegiance at public meetings or the singing of the National
Anthem at sporting events. Because, like words, symbols matter. A lot.

The history behind Independence Day is so radical, even today, that it
bears examination and reflection. Much of my thoughts were triggered by
the receipt of an email from Professor John Barrett, a law professor at St.
John's University in New York and the biographer to someone who is my
personal legal hero. Often called "the most important American no-one
has ever heard of," Robert Jackson was friend and Attorney General to
Franklin Delano Roosevelt, Justice on the Supreme Court and, most
famously, Chief Prosecutor at the Nuremberg War Crimes Tribunal. On July
4, 1941, then-Attorney General Jackson (who had just been nominated to
the Supreme Court) gave a speech. It was scheduled for the steps of the
Washington Monument, but the weather turned bad and was instead
broadcast nationally from a radio studio later that day.

Since context is just about everything, it's important to remember that this
was about two years after the Nazi invasion of Poland and then Europe,
and German efforts to bomb England into surrender. There was a great
deal of anti-war sentiment in the United States, fueled in large part by the
still-fresh memory of the terrible toll of what was then called "The Great
War" but, even more, a belief that the United States should just keep its
nose out of what was happening in Europe.

Jackson was having none of that. (Keep in mind he was about to be voted
on as a nominee to the US Supreme Court, just as Elena Kagan is right
now.) Imagine a Supreme Court nominee in the last 30 years pleading
with America to remember that: "The Declaration of Independence speaks
strong doctrine in plain words. It is the master indictment of oppression.
The fervor of its denunciation haunts and challenges dictators everywhere
and in every field of life."

Jackson goes on to challenge the Congressmen who don't want to face
Nazi aggression: "One fact emerges clear above all others. We Americans
cannot cease to be the kind of people we are, we cannot cease to live the
kind of life we live. We are not the kind of people the dictators will ever
want in the world. They will never have any use for our kind of life, nor we
for theirs."

So, for America's birthday it is all well and good to have parades and
barbecues, and fireworks that make our pets hide under the bed. But let's
remember what this is all about: that government is for, by, and of the
people. Those of us in the government have one boss -- you, the people.

And exactly 184 years ago today, which was the 50th birthday of America
(1826), two of the greatest Americans who helped make July 4th what it is
died. Thomas Jefferson at his home in Montecello, Virginia, and his long-
time friend and adversary John Adams, at his home in Quincy,
Massachusetts, whose last words were, "It is a good day, a great day.
Jefferson survives."

And today, if we remember, if we learn to tell others the meaning of
American liberty, independence and justice, they survive too.

Let's not forget about the crime

2010-07-04T08:00:00.000-07:00

GUEST VIEWPOINT:
In advocating for inmates,
let’s not forget about the crime
By Joshua Marquis
Appeared in print: Sunday, Jul 4, 2010

The family members of criminals often pay a greater price than the people
who molested, stole, assaulted or even murdered. They don’t deserve to
be punished, but it is a classic line that the judge or prosecutor should go
easier on the criminal because of how it might affect their family.

Bob Welch’s June 27 article (“Hard time”) paints Citizens United for
Rehabilitation of Errants as a group of isolated outcasts with little
sympathy and less support.

What strikes me is the plethora of groups like CURE. They include the
extremely well-funded Partnership for Safety and Justice, Families Against
Mandatory Minimums, Better People (which launched state Sen. Chip
Shields’ political career as an advocate for inmates and their families), and
Sponsors Inc. of Eugene, which has been around a very long time.

I don’t begrudge these organizations, but to claim that they are shivering
on a metaphorical ice floe is not accurate. And, unlike the few victims’
support groups — including Crime Victims United — these groups are well-
funded by deep pockets such as George Soro’s Open Society Institute. By
contrast, the victims’ groups operate on a wing and a prayer.

Welch points out that, “Among other things, the Oregon chapter
works with the Oregon Department of Corrections on intake and
release orientation.” The official position of the DOC is to do
everything possible to help inmates’ families and to assist in the
eventual transition of most inmates back into society. Otherwise,
unless the inmate is doing life without parole — a sentence that can
be imposed only for aggravated murder — he will walk among us
again, probably sooner rather than later. And remember: The
Legislature increased earned time up to 30 percent in the last
session.

This paragraph by Welch hit me the hardest:

“They talk about the logistics of visiting a family member in a
correctional facility. The perceived unfairness of Measure 11 — the
voter-approved law that requires minimum mandatory sentences for
certain felonies ... As the meeting continues, nobody asks what
crime someone’s relative has committed; the emphasis is on now,
not then. Getting by in the present, not digging up the past. But
about a third are connected in some way to someone incarcerated
for sex offenses, and the bulk of the rest have loved ones serving
time for armed robbery or assault. One is related to a convicted
murderer.”

I can understand the group not wanting to ruminate on the terrible
crimes committed by family members, but that is like having an AA
meeting without ever mentioning booze.

The biggest objection to Measure 11 usually comes from middle-
class families who are outraged at the penalties for their son, who
just had this “one incident with some 11-year-old who looked 18,”
or their daughter, who just did “something stupid” when she
clubbed an 82-year-old woman over the head with a wrench,
doused her in pepper spray, tied her up, threw her in a bathtub and
sprayed her with a fire extinguisher, then ransacked the house and
stole her car. “Suddenly, she found herself in prison,” Welch wrote.

Measure 11 doesn’t apply to drug dealers or burglars, car thieves or
even those convicted of most forms of child abuse (unless it is
sexual). And if the felony is not violent but what is known as a Class
C felony (car theft, drug possession, etc.), the offender can have
her entire record wiped clean three years after conviction, if she
stays out of trouble.

Oregon incarcerates at a rate less than 60 percent of other states.
Our sentences are typically much shorter. Oregon’s violent crime is
down a lot — in part due to Measure 11, in part due to other factors.

My late father, University of Oregon professor Lucian Marquis, liked
to quote Italian writer Ignazio Silone: “Never make fun of a man in
jail.” He was right, of course. But let’s not lose sight of why the man
is there.

Joshua Marquis worked for 11 years in the Lane County district
attorney’s office, for two years in Eugene as a criminal defense
attorney and for the past 17 years as district attorney in Clatsop
County.

The fourth Randy Guzek trial

2010-06-19T11:18:00.000-07:00

last updated Monday, June 28, 9:20pm

Letter to the Editor
Bend Bulletin
Published: June 28, 2010

For the past two months, I lived and worked in Bend to lead the team that
prosecuted Randy Lee Guzek for the murders of Rod and Lois Houser.

To the people of Deschutes County and most particularly to the many
current and retired law enforcement officers and citizens who stepped
forward for the fourth time to ensure that justice was done: You have my
deep gratitude. The case took the efforts of many members of the
Deschutes County District Attorney's Office, especially co-prosecutor
Darryl Nakahira and office manager Patty Hendrix. Deschutes County is
fortunate to have such dedicated people who will put their own lives aside
to serve the public.

All our efforts to resolve the case without subjecting the victims' family
and others to yet another trial were fruitless. One person had the ability
to stop these trials: the killer himself. He gambled that a jury would not
sentence him to death a fourth time, despite his steadfast refusal to admit
what was proved 23 years ago — his guilt beyond a reasonable doubt.

Another 12 jurors deserve the respect and admiration of their community
for making a long and difficult journey to the death penalty and justice. As
writer Stephen King says, “It's the tale, not he who tells it.”

It is impossible to tell what the appellate courts will do with the case, but
everyone who put their heart and soul into bringing justice for the
Housers and your community deserves all our thanks.
Joshua Marquis
Special Prosecutor
District Attorney
Astoria
link to published letter in Bend Bulletin

----------------------------------------------------------------------
Erin Golden of the Bend Bulletin; Kelsey Watts of KTVZ-TV NewsChannel 21 (Bend); Steve Duin, columnist for the Oregonian; and Steven Dubois of the Associated Press covered the trial.

Links to coverage follows.

On the verdict

Guzek IV jury forewoman reflects on Randy and the death stare
Steve Duin, The Oregonian
Published: Monday, June 28, 2010 8:10pm

Guzek Jury Foreman Talks of "Tough Decision"
KTVZ-TV NewsChannel21
Posted: June 22, 2010 10:02pm

Guzek IV: Sam Bracamonte's victim impact statement
Steve Duin, The Oregonian
Posted: Sunday, June 20, 2010 10:27pm

Houser Family Pleased by Guzek Death Penalty
Kelsey Watts, KTVZ-TV NewsChannel 21
Posted: June 18, 2010 4:55pm Updated: 5:27pm

Randy Guzek gets sentenced to death -- again
Erin Golden, The Bulletin
Published: June 18, 2010 4:00am

The Dead Man Resumes Walking
Steve Duin, The Oregonian
Published: June 17, 2010 10:23pm Updated 10:34pm

Fourth Jury Gives Randy Guzek Death Sentence
KTVZ-TV News Channel 21
June 17, 2010 5:30pm

Randy Guzek, convicted of murdering couple in their home, sentenced to death for fourth time
The Oregonian
Published: Thursday, June 17, 2010, 3:30pm Updated 8:37pm

Guzek gets death sentence
Bend Bulletin
Published: June 17, 2010 3:21pm

Murderer Guzek Gets Death -- Again -- But It's Not Over
Kelsey Watts, TTVZ-TV NewsChannel 21
June 17, 2010 4:05pm

Ore. man given 4th death sentence in 1987 slayings
Steven Dubois, Associated Press, from the Washington Post
Thursday, June 17, 2010 5:00pm

Steve Duin (the Oregonian) columns

The Dead Man Resumes Walking
Published: June 17, 2010 10:23pm Updated 10:34pm

Fatigue may mean new life for Randy Guzek
Published: Monday, June 14, 2010 6:34pm

Randy Guzek case testimony features Anne Houser, niece of slain couple
Published: Monday, June 07, 2010, 5:36PM
Updated: Monday, June 07, 2010, 6:365PM

Mark Wilson vs. Josh Marquis donnybrook at Randy Guzek IV
Published: Thursday, June 03, 2010, 10:05PM
Updated: Friday, June 04, 2010, 9:49AM

Ken Berg called back to testify in Randy Guzek case about the night
Published: Wednesday, June 02, 2010, 5:00pm
Updated: Wednesday, June 02, 2010, 4:40pm

Randy Lee Guzek revels in the endless spotlight
Published: Wednesday, May 19, 2010, 5:58pm
Updated: Wednesday, May 19, 2010, 6:05pm

Randy Guzek IV: The Preliminaries Heat Up
Published: Friday, May 14, 2010, 3:03pm
Updated: Friday, May 14, 2010, 3:54pm

Randy Guzek (Part 1 of 5):
Like the killer himself, a horrific crime saga refuses to go away
Published: Sunday, December 04, 2005, 1:57pm
Updated: Friday, May 21, 2010, 2:17pm

Randy Guzek (Part 2 of 5):
A change of plans, a rap at the door, and a family falls prey to evil
Published: Monday, December 05, 2005, 12:46pm
Updated: Friday, May 21, 2010, 2:15pm

Randy Guzek (Part 3 of 5):
Abused girl, telltale clues point to killers
Publihsed: Tuesday, December 06, 2005, 1:14pm
Updated: Friday, May 21, 2010, 2:12pm

Randy Guzek (Part 4 of 5):
Another chance to dodge death -- for the killer, not his victims
Published: Wednesday, December 07, 2005, 1:27pm
Updated: Friday, May 21, 2010, 2:12pm

Randy Guzek (Part 5 of 5):
In evil's wake, even hope has its limits
Published: Thursday, December 08, 2005, 1:37pm
Updated: Friday, May 21, 2010, 2:10pm

Erin Golden (The Bulletin) articles

Randy Guzek gets sentenced to death -- again
Published: June 18, 2010 4:00am

Guzek's stepmother tells court details of family life
Last modified: June 16, 2010 5:54am

Psychologist: Guzek not anti-social
June 12, 2010, 4:00AM

Correction: Guzek's conviction has never been overturned
June 11, 2010, 4:00AM

Troubled family life revealed: Psychologist says Guzek victim of "toxic" household
Published: June 10, 2010, 4:00AM

Co-defendant [Donald Ross Cathey] refuses to testify in Guzek case
Published: June 08, 2010 4:00AM

Co-defendant [Mark Wilson] testifies in Guzek death penalty trial
Published: June 04, 2010 4:00AM

Guzek jury told of grisly murder scene
Last modified: June 02, 2010 6:35AM

Fourth death penalty trial begins: Opening arguments for trial of Randy Guzek
Published: May 28, 2010 4:00AM

Guzek sentencing moves ahead: Judge grants motion to remove one possible sentence
Published: May 11, 2010 5:32AM

KTVZ-TV News Channel 21

Note: Videos are from 1-3 minutes in length, begin when loaded, and may be preceded by a brief commercial.

Houser Family Pleased by Guzek Death Penalty
Kelsey Watts, KTVZ-TV NewsChannel 21
Posted: June 18, 2010 4:55pm Updated: 5:27pm

Fourth Jury Gives Randy Guzek Death Sentence
June 17, 2010

UNCUT VIDEO: Killer Randy Guzek Addresses Court
June 16, 2010

Murder Victim's Brother Testifies Against Killer -- Again
June 9, 2010

Guzek Accomplice Won't Talk, Held In Contempt
June 8, 2010

Accomplice in Murders Denies Guzek the Ringleader
June 3, 2010

Psychiatrist Testifies about Randy Guzek's Mental State
June 3, 2010

Disturbing Details About Guzek Family as Trial Continues
June 2, 2010

Ex-Neighbor of Guzek Recounts Frightening Memories
June 2, 2010

Victims' Daughter Speaks Tearfully at Guzek Death Trial
June 1, 2010

Guzek Back on Trial; Victims' Family Back in Spotlight
May 28, 2010

Fourth Death Penalty Trial Begins for Randy Guzek
May 27, 2010

Guzek’s fourth death penalty trial begins

2010-05-28T15:30:00.000-07:00

Opening arguments for trial of Randy Guzek
By Erin Golden / The Bulletin
Published: May 28. 2010 4:00AM PST

As she sat at the witness stand, dabbing back tears with a tissue, Susan Shirley identified the things that had once made her parents’ house a home.

There were the wicker baskets her mother had collected. A stuffed white cat purchased as a gift for the couple’s grandchildren. A pair of running shoes that had belonged to her father, a marathoner. A small wooden bank, still filled with coins that clinked as the prosecutor shook it back and forth.

Nearly 23 years after Rod and Lois Houser were murdered in their Terrebonne home, Shirley took the stand in Deschutes County Circuit Court on Thursday to testify in the fourth death penalty trial of one of the men convicted of the crime.

Randy Lee Guzek, now 41, was 18 when he and two other men shot and stabbed the Housers and then ransacked their home. He was convicted of aggravated murder in 1988 and sentenced to death, but the sentence has been overturned three times.

Life or death?

Now, a new jury — made up of eight women and four men — will decide if Guzek should receive the death penalty or a life sentence with the possibility of parole in 60 years.

On Thursday, Guzek, dressed in a suit, sat between his attorneys as he listened to the attorney’s opening statements and Shirley’s testimony. Several of the victims’ family members were in the courtroom, along with a handful of sheriff’s deputies who watched over Guzek during the proceedings.

Clatsop County District Attorney Josh Marquis, who was appointed as a special prosecutor on the case, told the jury that Guzek was a highly intelligent and manipulative young man who plotted and carried out a string of burglaries before deciding to enlist the help of two friends to murder the Housers, the aunt and uncle of a girl he’d once dated.
“This was not a burglary gone bad,” Marquis said. “This was not something where it was just another one of these burglaries. This was a murder intended to be a murder. And it was planned and plotted and carried out by Randy Guzek.”

Richard Wolf, one of three attorneys representing Guzek, agreed that the facts of the Housers’ deaths are serious and not up for debate. But he told the jury that they should consider the circumstances surrounding the crime, including Guzek’s difficult childhood at the hands of an abusive, alcoholic father — and even the abuse that Guzek’s mother and father suffered when they were growing up.

“You’re going to hear from numerous people that really the only way Randy could get any affirmation from his father was to engage in antisocial and criminal activities,” Wolf said.

Defense attorneys plan to call several of Guzek’s family members and friends, including his siblings, as witnesses.

After the opening statements, prosecutors called their first two witnesses: Guzek’s high school health teacher, whose home was burglarized by Guzek and his friends, and Shirley, who discovered the bodies of her parents along with her younger sister on July 1, 1987.

Shirley identified several items that were recovered from the crime scene as belongings of her parents — and said she’d seen them after the murders, when police took her to Guzek’s home.

Guzek had apparently been using many of the items as his own. A tablecloth that had once been on the Housers’ kitchen table was on Guzek’s table, a bedspread in his bedroom. The name “Guzek” was etched into the back of the couple’s television.

Guzek was convicted by a jury in 1988 and sentenced to death. Two years later, the Oregon Supreme Court overturned that sentence and those of other death row inmates because of a flaw in Oregon’s death penalty law.

The two other men who participated in the murders, Donald Ross Cathey and Mark James Wilson, were both convicted of aggravated murder and sentenced to life in prison. Prosecutors plan to call both men to testify, along with a long list of other witnesses that includes some of Guzek’s former teachers and classmates from Redmond High School, medical examiners and police officers, a forensic psychiatrist and family members of the victims.

The trial is set to resume next Tuesday and is expected to take at least three weeks.

Erin Golden can be reached at 541-617-7837 or at egolden@bendbulletin.com.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

RELATED:

Guzek revels in endless spotlight

2010-05-28T15:00:00.000-07:00

By Steve Duin
The Oregonian, May 19, 2010
reprinted by the Daily Astorian, Monday, May 24, 2010

As of noon Wednesday - the ninth day of jury selection in the latest legal dance with Randy Lee Guzek - 23 jurors had passed muster in Deschutes County.

Only 21 to go. Only 21 more potential jurors must convince Judge Jack Billings they can impartially decide matters of life and death before we proceed with a trial that serves no purpose but to give Guzek another week or two luxuriating in the stage lights and media buzz.

In the 23 years since Guzek and Mark Wilson murdered Rod and Lois Houser in Terrebonne, Guzek has three times been sentenced to death and three times had that sentence overturned.

In throwing out the death sentence from Guzek's 1997 trial, the Oregon Supreme Court ruled that (a) Guzek's attorneys should have been able to introduce alibi evidence during the sentencing phase; and (b) the "true life" option - life without the possibility of parole - should have been available to the jury.

In 2006, the Supreme Court of the United States unanimously slapped down that first argument.

The "true life" question is more complicated and has a direct bearing on the ongoing melodrama in Bend.

When Guzek went on trial for the Houser murders in 1987, jurors had only two options if they found him guilty of aggravated murder: the death penalty and life with the possibility of parole after 30 years.

In 1989, however, the Legislature added the "true life" option, and the Oregon Supreme Court eventually ruminated - all ex post facto considerations aside - that the Guzek jury should have considered that third sentencing option in 1997.

In other words, if Guzek waived his right not to confront a law that didn't exist at the time of the murders, his jury could still ensure he died in prison.

Thus, it would seem, the only reason Guzek is back in court, and back in the headlines, is to decide whether he deserves a "true life" sentence rather than a lethal injection.

But in April, Guzek sent a six-page legal brief - in his trademark Times Roman script - to Billings, insisting that "the application of life without parole to my case" violated his constitutional rights in any number of ways.

And when the smoke finally cleared May 10, Billings ruled that "true life" is no longer in Guzek's fourth death-penalty trial.

What in the world is going on?

Billings has imposed a gag order on the attorneys in the case, but Josh Marquis, who is leading the prosecution of Guzek for the third time, argued in a court brief that Guzek "is attempting to create a Catch-22 where no matter what the jury decides he will avoid any but the least severe punishment possible."

Perhaps. Or it might be possible that Guzek has no interest in "true life" because he's come to enjoy the status of death row.

In that august corner of prison, Randy Guzek is a rock star. He has privileges, a reputation for outwitting prosecutors and the occasional opportunity to come out of hiding to taunt relatives of the wonderful couple he murdered.

He may even suspect that in the end, this state doesn't have what it takes to silence him for good.

A death penalty opponent - William R. Long, a visiting professor at Willamette University College of Law - might have said it best.

"By the time Guzek is executed, if ever, we will have spent enough money on his case to have given at least 1,000 Oregon kids full academic scholarships to the University of Oregon," Long wrote in 2005. "Indeed, by the time of his execution, Oregon will have spent more on Randy Guzek than on any other citizen in the history of the state.

"And I suspect that's just the way Guzek would have wanted it."

Steve Duin is a columnist for The Oregonian

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

RELATED:

Shelving of Measure 57 was a shell game

2010-04-04T09:42:00.000-07:00

April 03, 2010, 8:05AM

On Feb. 15, with no fanfare and with virtually no public comment, voter-approved Measure 57 was cryogenically frozen until some distant point in the future.

During the recently ended special session some Oregon legislators used the cover of fiscal doom to make dramatic changes in criminal sentencing policies. In full spirit of "Never let a good crisis go to waste," they used the economic downturn to dilute voter-directed mandates and reduce the safety of Oregon family and businesses.

But were they using a budget shell game?

In 2008, more than 60 percent of Oregonians voted for Measure 57, the "smart sentencing" law that would mandate drug treatment and give judges the discretion -- heretofore denied them -- to send people such as Marcus Bologna to prison.

Bologna had a prior burglary conviction when he was convicted of stealing the bronze statute of Sacagawea from Fort Clatsop National Memorial. Bologna chopped off the head so he could sell the $25,000 work of art for $500 in scrap metal. Under Measure 57, Bologna could have received up to two years in prison, but the maximum allowed at the time was 20 days in jail and three years probation (which he subsequently violated three times).

A broad coalition of prosecutors, law enforcement groups, prisoner rights advocates and legislators such as Sen. Chip Shields, D-Portland, who has argued passionately against tougher sentences, supported Measure 57 as a more affordable alternative to a competing ballot measure. But soon after it passed, Shields, co-chairman of the Public Safety subcommittee of the budget-writing Ways and Means Committee, argued that the state could not afford to enact the new law. He and some like-minded colleagues proposed to suspend Measure 57, increase so-called "earned time" from 20 percent to 30 percent, and limit sentences to no more than 60 days in jail even for repeated probation violators.

Sentencing philosophy played a large part in the debate, but the subcommittee's most compelling argument was a threat to close youth authority facilities in eastern Oregon and eliminate state police positions and other much-needed public safety jobs in order to fund Measure 57. The editorial boards of many of the state's major newspapers bought the hard sell.

It's an old ploy, loudly played out in 1994 over Measure 11, which requires violent felons and serious sex offenders to serve every day of their sentence. Opponents (including Shields, who then ran an advocacy group called "Better People") claimed Measure 11 would break the bank and add 6,000 new prison inmates to an already overburdened system by the year 2000. Instead, Oregon prosecutors used the law carefully, and by 2002 violent crime had fallen 40 percent. The prison population increased about half what had been predicted.

The 2008 Voters' Pamphlet said that Measure 57 would add $150 million to the state's 2009-11 budget, but $58 million was actually appropriated to the Department of Corrections for the two-year period. The state's district attorneys were required to track who was sentenced under the provision, the length of the sentence, and whether prison would have been an option if not for the measure.

The results?

Measure 57 was in force for one year. Its implementation did not cost half of the threatened $150 million, nor even half of the appropriated $58 million. It was likely less than $10 million.

In other words, the law that provided for truth in sentencing cost a fraction -- one-tenth -- what the fearcasters predicted.

Prison forecasts have been overpredicting inmate populations for more than a decade, and thereby driving the debate.

We often hear how prosecutors, cops, judges and lawmakers need to "get smart, not tough" on crime. To have any meaning at all, that catchphrase must begin with smart financial analyses untainted by political philosophy, so that the tough decisions about incarceration and treatment -- and of not incarcerating and treating -- can be made fairly and with justice.

Joshua Marquis is the Clatsop County district attorney and served on the Oregon Criminal Justice Commission from 2005-2009. click here for link to the OpEd on oregonlive.com

DAs say cost of anticrime measure inflated

2010-03-31T09:48:00.000-07:00

by Dan Tilkin KATU News and KATU.com Staff

Originally printed at http://www.katu.com/news/local/89574927.html

PORTLAND, Ore. - A tough-on-crime measure passed by Oregon voters was suspended by state lawmakers because they said the state couldn’t afford it, but according to a preliminary report by district attorneys, legislators made their decision on bad data.

Measure 57 was passed by a strong majority of voters and called for cracking down on criminals habitually breaking into homes and stealing cars.

The Voters Pamphlet said Measure 57 was going to cost $153 million the first two years. The Legislature appropriated a smaller sum of $58.5 million.

But a study by the District Attorneys Association found it only cost $5 million to $9 million for the year Measure 57 was enforced.

The district attorneys say that wasn’t the first time they’ve battled overestimation.

When Measure 11 was passed in 1994 voters were told it would require more than 6,000 new prison beds by the year 2000. The actual number turned out to be less than half that. Recent data shows the number is still well below the forecast: about 3,800.

“There have been other attempts to change Measure 11 or to repeal Measure 11 and every time it’s going to break the system, and it hasn’t broken the system,” said Columbia County District Attorney Stephen Atchison. “And that pattern has seemed to have repeated itself in Measure 57, and if that is evidence of collusion, or whatever you like to call it, that argument could be made.”

Clatsop County District Attorney Josh Marquis said he believes there’s an ideological battle waging over the issue.

“There are people in the building, as they say, in Salem who have very strong opinions that prison is generally not a good idea, and they are deliberately driving the numbers as high as they can make them in order to force Oregonians to make what I believe are false choices,” Marquis said.

Sen. Chip Shields, D-Portland, said he’s not sure what Marquis is talking about.

Shields has led the fight to spend less on locking people away. In March 2009 he said that the “criminal just system is out of whack, out of balance and we need to get it back into balance” when he had another report that supported his position about the value of more rehabilitation.

But he said he won’t comment on the district attorneys’ new report because it hasn’t been officially released.

When asked if it was justified to suspend Measure 57 if the numbers show the cost less, Shields said, “I think the real question is why isn’t it costing as much, and what I think you will see, when the final draft comes in, is part of the reason why it’s not costing as much as anticipated is because property crime is plummeting. That is the real point here.”

He said he doesn’t know why property crime is down or if it has anything to do with Measure 57.

Part of the problem may be because of a disconnection between the district attorneys and policymakers.
The district attorneys said they told policymakers and legislators that they wouldn’t use the tough-on-crime laws against everybody, which would save money. The policymakers said they asked the district attorneys for specifics about how that would be done but they never got the information.

“I don’t think the district attorneys told the forecasters, ‘we’re going to plead down a substantial number of these cases to a lesser offense,’” said Craig Prins of the Oregon Criminal Justice Commission.

The district attorneys said their offices don’t have a crystal ball to give specific data but that history should show the cost of getting tough on crime has been overestimated.

“I can understand how someone can get it maybe 20 percent wrong, or maybe 40 percent wrong, but 90 percent wrong, I have a hard time believing that,” said Marquis.

All agree, however, that in this situation it is hard to come up with how much these tough-on-crime measures will cost.

Measure 57 is slated to come back to life in 2012.

Running for Fifth Term

2010-03-22T11:10:00.000-07:00

Joshua Marquis has just started his 17th year as Clatsop County's top prosecutor and has filed to run for his fifth full term.

Appointed by then-Governor Barbara Roberts in 1994, Marquis won a contested race later that year. He was re-elected without opposition in 1998, 2002, 2006 and now in the 2010 election of May 18.

"I have never taken the job for granted," Marquis said after learning that he is un-opposed again. "I hope that means my constituents have high regard for the job the people in the DA's office are doing to make Clatsop County a safer place, which according to the latest state health benchmarks is true.

In anticipation of the election, Marquis purchased space in the State voter's pamphlet. He received endorsements from Oregon Attorney General John Kroger, Sheriff Tom Bergin, and Pat Burness, director of Clatsop County's Women's Resource Center.

The Clatsop County DA's office files hundreds of felony and misdemeanor cases each year. Most trials are handled by his six deputies, but Marquis enjoys the practice of law and appears for the State at jury trials on a fairly regular basis. Most days he takes the "one-fifteens," the hearings that begin at 1:15 p.m. each afternoon to address new cases, setting initial trial dates and conditions of bail. "It's a great opportunity to stay closely in touch with the office's workload and with community challenges."

Marquis also enjoys policy-making and considers it an important role, one that he claims a "luxury" because of his "outstanding staff," lead by Chief Deputy Ron Brown and Office Manager Lori Johnson. "The criminal justice system is almost continually under attack, from pop culture stereotypes to legislative impediments against sentencing, victims' rights and inadequate funding of public safety at the state level. There's always room for improving the system itself and also a great need to educate about the realities of law and order. Justice is a work in progress," Marquis said.

Marquis has a leadership role on the Executive Committee of the National District Attorneys Association (NDAA) , was appointed last year to the Criminal Law Section of the American Bar Association, and serves on the board of directors of the Animal Legal Defense Fund. He is frequently asked to speak to prosecutors and law students, and to engage in debates with criminal defense colleagues. The NDAA just appointed Marquis as the United States delegate to the International Association of Prosecutors although

Marquis stressed that none of his out-of-state travel is paid for by county taxpayers.

Marquis maintains a website, coastda.com, at his own expense and with his wife's expertise. It includes commentaries on justice, the media, pop culture and the law, and an extensive archive of his published writings. One section, Ask The DA, gives people a chance to ask questions, anonymously if they wish, with the caveat that he can't and won't comment on pending cases or give specific legal advice. He's gotten questions from Seaside and from South Africa. His most frequent advice: "Do as Chris Rock says and 'O-bey the law!'"

Pornography of Pay: Part II

2010-02-26T11:38:00.000-08:00

Prosecutors' pay cut caught in controversy
E-mails allege pressure
by Nick Budnick
Feburary 24, 2010
reprinted with permission in The Daily Astorian
scroll to bottom for the associated editorial, "This Stinks," from The Daily Astorian
(pictures, top to bottom: Michael Dugan, Judy Stiegler, Bill Porter, Josh Marquis)

SALEM — Last July, Deschutes County District Attorney Mike Dugan learned that he and Oregon's other elected top prosecutors had each lost about $5,000 pay. Not only that, but his own wife, Rep. Judy Stiegler, D-Bend, had, like other lawmakers, voted for the bill that slashed his salary in the final days of the 2009 legislative session — not knowing it would hit the elected DAs personally.

For many district attorneys, $5,000 is almost a month's paycheck. And that sum, it turns out, is enough to affect how a public debate plays out at the Capitol.

Though Dugan, a Democrat, won't say much about the politics of the pay cut, several prosecutors say they stayed out of this month's legislative debate over a criminal sentencing bill, hoping the Legislature would restore their unexpected pay cut. The cut is slated to be restored in a budget bill expected to be voted on today.

Some of the state's 36 district attorneys contend lawmakers used the pay cut to pressure the DA s group into an uncharacteristically quiet role on a “fix-it” bill modifying “earned time” sentencing provisions that allow some inmates to be released early. The bill, which effectively puts a six-month moratorium on early release, was approved by both houses and sent to Gov. Ted Kulongoski, who signed it Feb. 17.

The accusations are contained in e-mails obtained by The Bulletin under Oregon's Public Records Law.

On Feb. 10, Clatsop County District Attorney Josh Marquis warned his fellow elected prosecutors not to voice criticisms of an earned time bill, Senate Bill 1007.

“There are many problems with this 'fix' but if any of us say a word they'll cut off our salaries.... so I hope everyone has equity for a loan, savings or has been setting aside money,” he wrote.

In an e-mail to his elected colleagues the next day, Malheur County District Attorney Dan Norris wrote that the Legislature “is buying our silence on (legislation) with our salary ... The Legislature has taken a very dangerous low road by tying our hope that we get the salary (restored) to our rolling over on earned time.”

Truth and rumor
Several key Democratic lawmakers said they don't believe the claim that pay raises were linked to legislative positions. “Neither I nor anyone I am aware of would tie the two together,” said House Speaker Dave Hunt, D-Clackamas County. “It wouldn't be appropriate, and it didn't happen.”

Sen. Chip Shields, D-Portland, clashed with prosecutors last year over the earned time issue. Told of their allegations of improper pressure, he said, “I hope they use more evidence than that when convicting people.”
The prosecutors won't say who they think pressured them to stay silent. But Marquis, who is active in Democratic politics and who is among the candidates to be Oregon's next U.S. attorney, said that based on his inquiries at the Capitol, he firmly believes that “legislators who had the power to do this” made the threat.

He said he wouldn't single out any lawmakers in part because he didn't want to reveal his sources. But he's lobbied on criminal justice bills for close to three decades, and “I think I'm able to distinguish between truth and rumor,” he said.

Marquis, like other prosecutors, refused to discuss the pay politics until the e-mails were obtained under records law.

“I've never seen anything like this, and it's very concerning,” he said of the politics around the pay cut.

The concerns add prosecutors to those who in the last month have complained about pressure politics in the Capitol, a list that includes Oregon Head Start officials, corporate lobbyists and a bank president.

Last week, e-mails surfaced that show that Hunt warned Head Start officials that their budget was at risk next year because the group had failed to support two tax measures on the Jan . 26 ballot, backed by Democratic leaders, and wouldn't fire their conservative lobbyist, Mark Nelson, a leader in the opposition to the measures. For his part, Hunt contends he simply was worried Nelson's role would hurt Head Start.

Pay cut imbroglio
The prosecutor pay cut controversy dates back to November 2008, when voters approved Measure 57, which increased penalties for drug and property offenders, including drug dealers, burglars, car prowlers and identity thieves. But in 2009, legislators wanted to suspend Measure 57 to help close a $4 billion hole in the budget — and they ran into a fight.

Prosecutors protested that House Bill 3508 would effectively let thousands of inmates out early to reduce prison costs. It did so by increasing the amount of “earned time” an inmate could shave off his or her sentence, from 20 percent to 30 percent.

Crook County District Attorney Daina Vitolins said prosecutors fought the bill out of concern for public safety as well as on behalf of thousands of crime victims.

In late June, it became clear the bill would pass, over their objections. So the prosecutors decided to “get out of the way” and support the bill, said Kevin Neely, the lobbyist who represented the Oregon District Attorneys Association in the fight.

But that wasn't the end of it.

In two budget hearings in June, several lawmakers said that the prosecutors' pay deserved to be cut but said it wouldn't be.

They complained that the ODAA's activism on House Bill 3508 had reduced the scope of the bill and therefore necessitated cuts elsewhere. In a June 22 hearing of the budget-writing Joint Ways and Means Committee, Rep. Nick Kahl, D-Portland, called prosecutors' lobbying an “incursion to the legislative process.”
It was only after the hearings closed that lawmakers were presented with a last-minute budget bill that cut about $170,000 from elected district attorneys' pay.

Lawmakers now say that DA pay was cut not in retribution but because so many deeper cuts were being made elsewhere. “Prosecutors were not singled out,” said former state Sen. Margaret Carter, D-Portland, who co-wrote the budget bill before leaving office last summer.

A personal issue
Stiegler recalls the day in July she learned about it from Dugan, her husband: “I remember Mike coming home and saying, 'Do you know you cut my salary? '”

“And I'm like, 'What are you talking about, dude?'” she said.

Dugan said that he thinks most of the 90 state representatives and senators didn't know their vote would make prosecutors the only elected officials to receive a pay cut last year. “It's my opinion that at least 87 of the people in that building had no inkling whatsoever,” he said.

The news hit district attorneys in a personal way. Prosecutors in smaller counties make about $87,000 from the state, and in larger counties, of more than 100,000 people, about $99,000. On top of that, many counties give their elected district attorneys supplements to boost salary.

Jefferson County District Attorney Steven LeRiche said he has two young sons and a wife to support and said the lost paycheck wouldn't just affect his kids' college fund.

“I'm probably living more month to month than that,” he said. “You're pretty much talking about a month's salary, and what employed person can say they could lose a month's salary and not (feel it)?”

Relations between the elected prosecutors and lawmakers remained tense after the session. Media accounts discussed how thousands of inmates were being released, some of whom had records of violence and sex abuse. Lawmakers vowed to take up a legislative fix to stop further releases of dangerous convicts.

Meanwhile, many prosecutors tried to find out why their salaries had been cut and what they had to do to get it back. E-mails from the elected district attorney's listserv show the first mention of pressure from lawmakers appeared less than six weeks after the pay cut.

On Aug. 12, Tillamook County District Attorney William Porter e-mailed his colleagues in support of a legal challenge to the salary cut, calling the pay cut punishment for their fight against HB 3508. “We are also being blackmailed w/ threats of further cuts if we don't behave ... Let's fight back!”

In another e-mail, Marquis insisted lawmakers told the group that the negative newspaper articles about HB 3508 risked their salaries.

Asked about the e-mails, Neely denied knowledge of any direct threats, instead saying he had typical political discussions with lawmakers when he approached them about getting the DA pay restored. In an e-mail, he called it a “two way street” in which lawmakers sought the district attorneys' support on the legislative “fix” bill, later called Senate Bill 1007.

“Some legislators expressed dismay over the media attention around earned time; I expressed my dismay over the salary reduction,” Neely wrote. “Was I specifically told to play ball on SB 1007 or lose salary money? No. Did legislators insinuate that it would be an easier road if we assisted on SB 1007? Sure. At the same time, I told legislators that it would be pretty hard to ask for the DAs to support anything until our salaries are restored.”

Most district attorneys, in fact, wanted HB 3508 to be fully repealed, not just fixed. But in the end, they decided not to fight it actively, instead co-authoring a polite letter with law enforcement groups. Neither Neely nor any elected district attorney testified on the bill.

Under pressure?
Neely characterized the toned-down stance as a tactical decision to repair frayed relations with the Legislature. Was it motivated partly by desire to restore their salaries? “I'm not sure,” he said, adding that while some prosecutors had that motivation, others didn't.

Stiegler, for her part, said she hadn't heard from lawmakers about DA salaries getting wrapped up in pressure politics, though she knew some prosecutors suspected it.

Dugan and Vitolins say they don't think lawmakers pressured prosecutors.

LeRiche said he doesn't know what to think. But the suspicions aren't good for public faith in the democratic process, he said, adding that legal protections for district attorney pay could be the solution.

“If people are suggesting that you can influence public officials with money, then that's a bad thing, and it shouldn't be part of the process,” he said.

E-mails allege pressure
Dec. 22: Malheur County District Attorney Dan Norris to his fellow DAs on whether they should respond to an Op-Ed supporting House Bill 3508, a bill that let thousands of inmates out early to help ease a budget crisis:

“Failing to respond will encourage legislatures to view our organization as weak and divided. Couple that with the fact that they intentionally cut our salary, and are holding the add back hostage to our keeping silent about a bad policy that we opposed will appear that they can control us for 1.8% of our salary. If we set that precedence we will be encouraging more of the same.”

Aug. 12: Tillamook District Attorney William B. Porter's e-mail to his fellow elected district attorneys, discussing whether the DA's association should mount a legal challenge to a pay cut the Legislature approved for them:

“Why not go there? We are duly elected constitutional officers. We are being punished for exercising our rights as citizens and our duty as DAs. The Governor has consciously chosen to just let it happen. We are also being blackmailed w/ threats of further cuts if we don't behave. The legislators that hate us are already out to cut our pay more. Let's fight back!”

Feb. 10: Clatsop County District Attorney Josh Marquis to his fellow district attorneys on whether they should point out flaws in Senate Bill 1007, a bill to fix problems with HB 3508:

“Colleagues

There are many problems with this “fix” but if any of us say a word they'll cut off our salaries ... or more accurately refuse to reinstate our June 2011 paycheck so I hope everyone has equity for a loan, savings or has been setting aside money. This WILL pass. There is nothing we can do about it.”

Feb. 11: Malheur County District Attorney Dan Norris to his fellow DAs on whether they should ask Sen. Floyd Prozanski for help getting their pay restored in light of their restraint in speaking out:

“The legislature (Floyd et al) is buying our silence on earned time with our salary. We have always taken the high road, and not traded policy for a pay raise. The legislature has taken a very dangerous low road by tying our hope that we get the salary that the law requires to our rolling over on earned time. This is a very dangerous precedent. I should have spoken more forcefully last month, but I had already said enough. It is too late to change our course. However the pay cut worked so well this time for the legislature that it will become the way that they neutralize us in the future.”

In a series of e-mails obtained under Oregon Public Records Law, elected county district attorneys claimed lawmakers were using DA salaries to pressure them to keep silent about bills changing the rules on inmates' early release thanks to “earned time.”

Nick Budnick can be
reached at 503-566-2839 or
at nbudnick@bendbulletin.com.

This stinks

It is time to remove politics from Oregon prosecutors' compensation

editorial, February 25, 2010

It is a wonder that Oregon is so backward on compensating county prosecutors. The latest sordid wrinkle in this story was reported Wednesday by The Bulletin of Bend. An Associated Press version of the story is in this edition. The allegation in the Bulletin's story is that Oregon district attorneys' salaries were cut by the 2009 Oregon Legislature as retaliation for their pressure on criminal sentencing and that key legislators have bought silence from DAs on criminal sentencing legislation in the 2010 session by threatening legislation that would alleviate the damage done in the prior session.

All of this stinks.

Oregon's county prosecutors are notoriously inadequately compensated. How bad does it have to get before a core group of legislators end this disgusting drama? And where is Gov. Ted Kulongoski, who served as the state's top law enforcement officer?

A good solution would be to tie the salary of prosecutors to the compensation paid to Oregon judges. That was proposed in Clatsop County when county commissioners reduced the local share of District Attorney Josh Marquis' salary.

In the imbroglio in Clatsop County, the commissioners' implicit motive was to drive DA Marquis from office.

The legislative game described in The Bulletin's reporting reflects badly on the leadership of House Speaker Dave Hunt. The Oregonian, in a recent Sunday report, described Speaker Hunt's retaliation against businesses and others who opposed ballot measures 66 and 67.

Speaker Hunt is only the latest political leader who acts as though there is no tomorrow. It is a fatal flaw in the political gene pool. It appears in every generation. In this malady, Richard Nixon and Huey Long are Speaker Hunt's political ancestors.

It is beyond ridiculous that district attorneys' compensation is a tactic in the Capitol's soap opera. Let's remove that from the table by enacting a link between Oregon judges' compensation and that of county prosecutors.

Sentencing guidelines neglect animal abuse

2010-02-10T16:01:00.000-08:00

Pet Talk: Oregon's animal-abuse laws lose their bite under state sentencing guidelines
By Jacques Von Lunen, Special to The Oregonian
February 09, 2010, 3:58AM

The laws Oregon has to protect animals from abuse look great.

They look good enough, in fact, to ensure the state perennial bragging rights for being among the toughest in the nation on animal abusers.

Problem is, looks aren't everything.

Prosecutors say that in court, where it counts, they are hampered by Oregon's sentencing guidelines, which make animal-abuse laws all but useless. Budget concerns shut down attempts to correct the situation in last year's legislative session.

The problem lies with trying to convict people of felony animal-abuse charges.

Prosecutors say that lower-level offenses -- letting animals live in squalid conditions, for example -- carry adequate sanctions for the most part. But they say the punishment does not fit the crime when it comes to those who have killed or tortured animals.

That's because of sentencing guidelines.

On paper, someone who bludgeons puppies with a crowbar or throws a kitten in a fire -- real Oregon cases -- could, if convicted, go to state prison for five years. At least that's according to Oregon's statute on aggravated animal abuse (ORS 167.322)

But in reality, any judge sentencing a felon has to obey Oregon's sentencing guidelines. And in the case of animal abuse, the guidelines defang the law.

Oregon's sentencing guidelines are structured as a grid that weighs the severity of a crime and the criminal history of the offender.

Imagine a checkerboard with crime categories on one side and criminal history scores on the other. Through this grid runs a jagged line. Everything north of that line means prison time. Anything below results in probation.

A judge can point to the category of the crime in question, run a finger across the grid to the column under the offender's score and read the range of sentences that can be meted out.

Under Oregon's guidelines, aggravated animal abuse -- which the law defines as "maliciously killing or intentionally torturing an animal" -- is a Level 3 crime. At that level, even someone with a record of multiple violent crimes lands in the probation zone. There'll be no prison no matter how heinous the offense.

Judges have some discretion. A process called departure allows judges to add time in county jail -- as long as 12 months for the worst offenses -- to a probation sentence. And offenders who repeatedly violate the terms of their probation can ultimately end up doing the full time.

But neither scenario is very likely. And that's infuriating to prosecutors.

"We have what sounds like a tough law," says Josh Marquis, district attorney in Clatsop County. "But there is literally no way to get prison time, no matter how horrible the (animal-related) crime."

Heidi Moawad, deputy district attorney in Multnomah County, says, "Level 3 doesn't appropriately reflect the seriousness of these crimes."

Jean Kunkle, deputy district attorney in Marion County, says, "The fact that it's ranked 3 is frustrating."

All three have faced the sentencing limitations in cases in which offenders got off on probation or received a few months in county jail for, say, beheading or stomping to death an animal.

Anyone who thinks it's a waste to spend tax dollars on putting away a cat killer should read about the link between animal abuse and other violence.

"There's an absolutely undeniable link between person and animal cruelty," Marquis says. "All of the serious sexual psychopaths have animal cruelty in their backgrounds."

Moawad says animal abuse has played into domestic violence cases that she has seen: Spouse and child abusers kill or maim family pets to exert pressure on their victims.

Just to be clear: This isn't about hunting or telling people how to take care of their animals. This is about the few cases of malicious, intentional, torturous killing -- the cases that the vast majority of society agrees are ghastly.

If laws reflect a society's values and if Oregonians value their animals, then why, when it comes to punishing animal abuse, does Oregon lag other states?

Scott Heiser, director of the criminal-justice program at the Animal Legal Defense Fund, says that sentencing guidelines in Texas and Virginia, for example, indicate that a conviction of aggravated animal abuse in those states would most likely land you in prison.

And he cites a case in Wisconsin: Randy Lee Whitney was convicted of killing a woman's kitten by stomping on its head in 2005. His sentence was four years in prison. In Oregon, says Heiser, who used to be the Benton County district attorney, Whitney would most likely have gotten "a whopping 60 days (in) jail as a condition of a 24-month term of probation."

Animal abuse's ranking in Oregon's sentencing guidelines almost changed during the last legislative session.

The Criminal Justice Commission prepares recommendations for each crime's ranking, which the Legislature then must pass.

Marquis, the Clatsop County D.A., served on the commission until April. Moawad, his Portland colleague, testified before the commission. They made their case.

The commission recommended that the Legislature raise the ranking for aggravated animal abuse to Level 8 and the ranking for first-degree felony animal abuse -- cruelly killing an animal in front of a child, for example -- to Level 6.

Marquis thought he'd ended his commission term on a high note. "This was something I thought we'd accomplished," he says.

There was just one problem: money.

The Legislature's committee on ways and means -- the budget folks -- struck down the recommendation.

"There was a serious shortfall in the Department of Corrections budget," says Craig Prins, the commission's executive director. "We were reducing time served for guys who already have hurt people."

He says legislators favored the recommendations in principle but couldn't afford to add to the prison population.

But it's not as if the higher rankings would have flooded Oregon's prisons.

"I don't think the Legislature is in a position to say this is too expensive," Marquis says. "We can afford to send three or four really bad animal offenders to prison."

The prosecutors haven't given up on changing the guidelines.

"Maybe in better fiscal times," Kunkle says.

The door is not closed on the issue. Prins says either the Legislature or the commission could take it up again. But, he cautions, budget forecasts make that unlikely.

Unless the public demands such a change.

"My hope is that we could encourage legislators to give it another try," Moawad says.

-- Jacques Von Lunen

Doug Bates: The truth about tough-on-crime Josh Marquis

2009-11-14T17:00:00.000-08:00

The truth about tough-on-crime Josh Marquis

By Doug Bates, The Oregonian

November 14, 2009, 10:37AM

The Oregonian
Josh Marquis, Clatsop County district attorney

All three finalists for Oregon's U.S. attorney have impressive resumés, and I'm sure that whoever among them is appointed by President Barack Obama will do an excellent job. [Marquis note: See 10/28/09 Main Justice article by Stephanie Woodrow.]

Personally, however, I'm pulling for Josh Marquis, the outspoken and sometimes controversial Clatsop County district attorney.

Let me confess right up front that I've never met the other two finalists who were recently named by a 13-member screening committee. They are Amanda Marshall, an Oregon Department of Justice attorney, and Kent Robinson, the acting U.S. attorney for Oregon. Both have strong credentials and both will be formidable competitors for the appointment against Marquis, in part because neither has been out there with him on the rough-and-tumble front lines of Oregon politics.

For Marquis, who has exceedingly strong credentials of his own, that creates a disadvantage. His long career as an elected DA and advocate for prosecutors has given him a reputation as a "law and order Democrat," something that's perversely resented by some on the political left. Now certain liberal bloggers in Oregon are suggesting that Marquis shouldn't get the appointment because he isn't "progressive enough" to be a good ideological fit with the Obama administration.

That's pretty silly. I've known Marquis and have worked with him off and on for nearly 30 years, since he was an exuberant young deputy DA in Lane County, and the man I know is a true-blue Oregon Democrat who happens to be tough as hell on crime.

Think of a John Kroger with a little less political cautiousness. Or maybe a lot less. Marquis' willingness to be out front on such prickly issues as mandatory sentencing has made him a bit of a lightning rod for some on Oregon's far left.

I haven't always agreed with his positions, but I know he isn't the reactionary some lefties think he is. Yes, he supports the death penalty but thinks it should be very rarely used – pretty much the same position as another progressive Democrat named Barack Obama.

At any rate, neither the death penalty nor mandatory sentencing has any significance in the federal appointment. U.S. attorneys don't make the decision to seek a death sentence, and federal sentencing guidelines, passed by Congress, make Oregon's sentencing laws look like marshmallow cookies.

Josh Marquis, a Democrat In Name Only? If he is indeed a DINO, it's interesting that he was among only four DAs in Oregon who endorsed Jeff Merkley for the Senate.

OK, I'll admit a bias here. Among prosecutors in Oregon, Marquis possesses an unusual openness to the media. It probably has something to do with his heavy journalism course work as an undergraduate at the University of Oregon. He understands the profession and genuinely likes talking with reporters -- to the extent that some accuse him of an excessive fondness for seeing his name in the paper. (News flash: Hey, he's an elected official, for crying out loud.) He's also an excellent and prolific writer, someone who would have made a good newspaper journalist if he hadn't gone off to law school instead.

Too conservative for Oregon's blue crew? That's silly, too. He's in the news all the time as a tough-on-crime prosecutor, but few people know anything about his personal commitment to civil rights, social justice, clean government and the environment.

Five years ago Marquis ticked off the Bush administration with an op-ed piece chiding the Bushies for obsessing over marijuana when meth was a much bigger problem. Last year he wrote that it was wrong to consider death sentences for people tried in Guantanamo. And as a member of the board of directors of the National District Attorneys Association, he proposed, wrote and got passed an endorsement of Justice Sonia Sotomayor, pointing out that she had been a working deputy DA in New York City.

As I said, I've never met Amanda Marshall or Kent Robinson. I'm sure both are also terrific candidates for Oregon's U.S. attorney. When the Obama administration considers the three finalists, however, I just hope Josh Marquis' candidacy is not hurt by false perceptions that he isn't a sufficiently progressive Oregon Democrat -- not that this should be a prerequisite anyway.

You can call me a DINO, if you want. (I've had my home broken into, and I kind of like it when DAs are tough on bad guys, myself.) But don't lay that not-blue-enough rap on Marquis, because it's unfair and untrue.

– Doug Bates

Vanderbilt Law School debate

2009-11-14T11:15:00.000-08:00

On my way home last week from my first meeting as a member of the American Bar Association's Criminal Justice Section, I stopped off at Vanderbilt Law School. Students there had invited me to an "Oxford-style" debate in which the audience "votes" on who "won" the argument by walking out a particular door.

Over the last ten years I have been asked many times to speak about issues surrounding capital punishment. Part of the reason is that I was once a journalist and I enjoy writing, and as a litigator I enjoy a good debate. All too often my willingness to talk and debate is misinterpreted as excessive zeal for the death penalty. The truth is I think capital punishment should rarely be used and that we -- defense lawyers, prosecutors, judges, everyone in criminal justice -- can do better. Justice is a work in progress.

Above all else I value civility in discussion of such important and often emotional issues, and have been fortunate to have been matched up (almost always) with opponents of capital punishment whom I greatly respect and with whom I've found much common ground. That was certainly true of Prof. Ken Haas, my eloquent and personable debate opponent from the University of Delaware.

Vanderbilt posted the debate online at YouTube, if you want to know from the horse's mouth why I support capital punishment:

Justice Dept. to Review Bush Policy on DNA Test Waivers

2009-10-11T10:37:00.000-07:00

By Jerry Markon

Washington Post Staff Writer
Sunday, October 11, 2009

Attorney General Eric H. Holder Jr. has ordered a review of a little-known Bush administration policy requiring some defendants to waive their right to DNA testing even though that right is guaranteed in a landmark federal law, officials said.

The practice of using DNA waivers began several years ago as a response to the Innocence Protection Act of 2004, which allowed federal inmates to seek post-conviction DNA tests to prove their innocence. More than 240 wrongly convicted people have been exonerated by such tests, including 17 on death row.

The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if new evidence emerges. Prosecutors who use them, including some of the nation's most prominent U.S. attorneys, say people who have admitted guilt should not be able to file frivolous petitions for testing. They say the wave of DNA exonerations has little impact in federal court because all those found to be innocent were state prisoners, and the waivers apply only to federal charges. DNA evidence is used far more frequently in state courts.

But DNA experts say that's about to change because more sophisticated testing will soon bring biological evidence into federal courtrooms for a wider variety of crimes. Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty -- mainly to get lighter sentences -- and that denying them the ability to prove their innocence violates a fundamental right. One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn't commit, and 16 of them pleaded guilty.

"It's a mean-spirited policy. Truth, ascertained by science, should trump the finality of a conviction," said Peter Neufeld, co-director of the New York-based Innocence Project. He said the waivers are effectively "gutting the impact" of the 2004 law because 97 percent of federal convictions result from guilty pleas.

Interviews and documents show that language allowing for DNA waivers was inserted into the law at the behest of Republican senators and that the Bush Justice Department lobbied against the measure even with the waiver provision. Soon after the law passed with bipartisan support, the department sent a secret memo to the nation's 94 U.S. attorney's offices urging them to use the waivers, several federal officials familiar with the memo said.

Holder, a former U.S. attorney in the District, has called for expanded DNA testing in federal courts. After inquiries by The Washington Post, his spokesman, Matthew Miller, said Holder "has ordered that the department review its DNA waiver policy."

"The attorney general believes that DNA testing is a crucial law enforcement tool both in solving crimes and exonerating the innocent," Miller said, adding that if new evidence arises after conviction, "prosecutors have an obligation to act."

The waivers run counter to the national movement toward post-conviction DNA testingas the forensic tool has revolutionized criminal justice. Nearly all 50 states have passed laws giving inmates the right to seek testing in state courts, and most allow for petitions after guilty pleas.

Oregon prosecutor Joshua Marquis, who sits on the executive committee of the National District Attorneys Association, said he's never heard of DNA waivers in state court and that the organization opposes the concept. "I think it's important to always leave the door open for actual proof of innocence," he said.

In federal court, the waivers are part of the standard plea agreement filed by prosecutors in the District, Alexandria and Manhattan, which are among the nation's highest-profile U.S. attorney's offices. Waivers are used in some or all pleas by at least 16 other offices, including such large ones as Chicago and Los Angeles and such smaller ones as Arkansas and West Virginia. Prosecutors in Maryland rarely use the waivers.

"It saves us a lot of spurious litigation down the pike," said G.F. Peterman III, acting U.S. attorney in the Middle District of Georgia. "All they have to do is say I'm not guilty, go to trial and they've waived nothing. It's their decision."

Defense attorneys disagree, saying prosecutors give defendants the choice of signing the waiver or not getting the benefits of a plea agreement, which usually include a lighter sentence.

"It's a horrendous provision, and I can never get them to take it out," said Christopher Amolsch, a lawyer whose client recently waived DNA testing rights in a cigarette smuggling case in U.S. District Court in Alexandria. Other lawyers said they don't usually fight the waivers, considering it a losing battle.

The U.S. attorney's office in Alexandria declined to comment.

At least 24 U.S. attorneys don't use the waivers. It could not be determined how many inmates have been affected by the policy, because the remaining 50 U.S. attorney's offices did not respond to inquiries or declined to comment. It is also unclear how many federal prisoners have filed petitions seeking post-conviction DNA testing since 2004. Justice Department officials said the number is small but have also said they expect more petitions over time.

At the heart of the debate is the question of how often the innocent plead guilty. Michael Volkov, a former federal prosecutor who as counsel to Sen. Orrin G. Hatch (R-Utah) pushed to insert waiver language into the 2004 law, said he thinks it is "extremely rare."

But experts who have studied DNA exonerations say it is more common. "The idea that people who plead guilty are always guilty is false," said Brandon Garrett, a University of Virginia law professor. He said the waivers "send a terrible message: that federal prosecutors take a dim view of truth telling."

Arthur Lee Whitfield, for example, was convicted in 1982 of raping a woman in Norfolk and was about to go on trial in a second rape. Facing a possible life term, he pleaded guilty for a lighter sentence. He was exonerated of both crimes by DNA in 2004 after more than 22 years in prison.

"I figured I can put my life on the line and take a chance, or I can take the plea and have a shot at coming home to my family," Whitfield said in a recent interview. "You never know what you'd do until you're put in that situation."

Justice Department officials who favor DNA waivers say the 2004 federal law wouldn't have affected such defendants because their cases were in state courts. Violent crimes in which suspects are more likely to leave their DNA have traditionally been prosecuted locally.

But federal prosecutors have been tackling more violent crimes in recent years, especially involving gangs or drugs. And experts say the arrival in the next few years of more sophisticated DNA testing will allow DNA to be used in more federal cases both to convict and to exonerate.

For example, DNA tests can't discern whether DNA came from blood, semen or other tissues; they show only that a DNA profile is present. When that changes, said Dan Krane, a biological sciences professor at Wright State University, defendants might be able to show that they never touched key pieces of evidence in drug, gun, forgery and other cases.

These types of scientific advances were among the reasons that Sen. Patrick J. Leahy (D-Vt.) originally proposed the Innocence Protection Act in 2000. The waiver provision emerged from intensive negotiations with Republican senators, who insisted on it as one price for their support, congressional sources said.

The language inserted into the final bill says federal judges can order post-conviction DNA testing if the inmate did not "knowingly and voluntarily waive the right to request DNA testing of that evidence in a court proceeding." The law also says the government can destroy biological evidence if there is a DNA waiver.

With the waiver provision in the law, the Justice Department in April 2004 sent a 22-page letter to the Senate Judiciary Committee that said allowing any defendant who pleaded guilty to seek DNA testing would amount to "an unjustified attack on the integrity of guilty pleas which . . . are the means by which most cases are resolved."

"The purpose [of post-conviction DNA testing] is not to enable killers, rapists and other criminals to re-open old wounds of crime victims and their survivors years and decades after the normal conclusion of criminal proceedings," the letter said.

An Interesting Week

2009-09-18T09:23:00.000-07:00

On Saturday the Clatsop County Democrats held their annual picnic at Cullaby Lake, in Gearhart. Larry Taylor, the CCDCC chair, emceed the event with his usual aplomb. Lots of Democrats came to meet and greet. Special guests: Bill Bradbury, who officially announced today he'll run for governor in 2010; Peter Huhtala, challenging Brad Witt for State Rep; Rep. Brad Witt; Sen. Debbie Boone; and our indomitable Sen. Betsy Johnson. Word on the street is Betsy will soon be named co-chair of the powerful Joint Ways and Means Committee.

Attorney General John Kroger was the Keynote Speaker and was as dynamic as ever. After meeting John in 2007 I knew that he would be a great choice for A.G., and he has been. He takes no prisoners on environmental protection, civil rights, corruption investigations and consumer fraud -- the latter an area that means a lot to me because I started in the prosecution biz as a consumer fraud investigators in the mid-70s in the DA's Office in Eugene. (See the Eugene Register-Guard, August 24, 1977.)

One of the things John talked about at the picnic was the need for more treatment for people with addiction problems. I've been a long-time advocate of spending more money for intensive programs, including in-patient treatment, and also for drug treatment in our jails and prisons. During the Meth Summit (final report here, a .pdf), it was striking how many recovering addicts thanked Sheriff Tom Bergin for locking them up long enough to get sober. Jail can't be used primarily as a detox facility but for many addicts it's the only way they can get clean long enough to get motivated to get involved in treatment.

I recently attended the opening of the expansion of Astoria Pointe, the first in-patient residential substance abuse facility in Clatsop County since Serenity by the Sea went out of business a few years ago. Astoria Pointe recently bought the Rosebriar Hotel and have converted it into a treatment facility specifically for women. The owners of Astoria Pointe have very generously consistently donated one bed for local residents who could not otherwise afford the 30- to 90-day treatment program. I've worked with our judges to use that bed as an alternative to longer term incarceration, and it is standard practice for my office to agree to "day for day" credit for time spent in any certified in-patient facility. We are always looking for thoughtful, responsible ways to reduce our customer base.

Last night I had a great time at the University of Oregon's White Stag Center, on Couch Street in Portland, debating George Washington University Professor Paul Butler, who was promoting his new book Let's Get Free: A Hip-Hop Theory of Justice. The discussion was sponsored by the American Constitution Society, a progressive alternative to the more conservative Federalist Society. I made the point that we in Oregon have been ahead of the country in many ways, including, for example, by decriminalizing possession of small amounts of marijuana; that more than 75% of felons in Oregon don't go to prison; and that, of the 25% of felons in prison, more than 70% are there for violent felonies and only 9% for drug offenses, with virtually all those for dealing, not using.

Professor Butler has some very controversial ideas, like advocating jurors should refuse to vote guilty on what he calls "non-violent" crimes even if they believe that the prosecution proved its case. I have a hard time calling Felony DUII or selling Meth a "non violent" crime, there's a reason we are, as John Adams wrote, "a nation of laws and not of men." We don't and can't allow the whims of the one -0 be that a juror, judge or DA -- to over-rule the law. I have confidence in juries and we need to make sure they get as much truthful evidence as possible.

I've added the video of the great Chris Rock bit, "How Not To Get An Ass-Whipping," to the sidebar here. It's great advice that humorously reinforces messages of personal responsibility and keeping your act together.

As Chris Rock Says: "O-bey the Law!"

2009-09-06T16:30:00.000-07:00

Back in the spring of 2006 some Clatsop County residents who were driving around the area where Highway 26 leaves Highway 101 to head back to Portland noticed that a number of horses at a place called "Small World Farm," just off Highway 101, looked seriously undernourished and generally miserable. The Seaside Police Department sent two officers, one of whom had been a rodeo rider and knew something about horses. He ended up calling the Clatsop County Sheriff's Office and an investigation resulted in the farm's owner, William Maxwell, getting charged with several counts of Animal Neglect.

In the fall of 2007 Mr. Maxwell's case went to trial, represented by Portland lawyer Geordie Duckler (who bills himself as "The Animal Law Practice"). The prosecution had as witnesses a number of local women I called "the angels." These women were just local residents who knew something about horses, and each took one or more of the horses in the worst shape and nursed them back to health.

The main witness for the prosecution was Dr. Jack Giesy, a veterinarian from Vancouver, Washington. Dr. Giesey is well north of 60 years of age and still practices large animal veterinary medicine. He's so beloved that the horse arena at the Clark County (WA) Fairgrounds is named after him. Dr. Giesey looked at the picture of one horse, named Goliath (pictured below in a story from the Seaside Signal), and literally broke into tears.

Photo courtesy of the Seaside Police Department. When Goliath was seized from the Small World Farm south of Seaside on April 4, 2006, he weighed 857 pounds. After being placed in foster care, the horse’s weight was recorded at 1,325 on Aug. 21, 2006 (shown).

After three days of testimony things looked so bleak for Mr. Maxwell that his lawyer asked for the plea deal I'd offered Mr. Maxwell's son. The answer was . . . "NO." He had to plead guilty, forfeit the horses to the nice women who had nursed them back to health, and pay the women (although none of them ever asked) about $15,000 in restitution. I didn't ask for jail time because I wanted him to pay the money and "O-bey the Law!" (Scroll to the end for the video from Chris Rock's website.) (Here's the full story about the horses and their angels, from the Seaside Signal.)

A few months later my office received a police report that Mr. Maxwell had slugged an arborist he'd contracted after what some call the December "Gale of '07" blew down lots of stuff. The case was postponed six times. By the latest trial date, in August 2009, the victim was broke and couldn't make it to court. Trying assault cases without the victim is dicey at best, more so in this case because the victim refused initial medical help even though he'd been sucker-punched.

So . . . back to trial with Mr. Maxwell in front of another Clatsop County jury, who heard nothing about his previous mis-deeds. Mr. Maxwell took the stand and claimed that he'd been trained as a security agent for Macy's, and that all he was trying to do was stop the arborist from leaving the bank with a check from the insurance company that was made out to both of them. I asked Mr. Maxwell if Macy's instructed him to slug people in the face as a way of detaining shoplifters. He allowed as how they didn't.

The jury, headed up by a United Airlines pilot who lives in Astoria, convicted Mr. Maxwell of Assault in the Fourth Degree, and this time he went to jail . . . on his birthday.

Judge rejects story, sends Maxwell directly to jail
‘He thinks the rules don’t apply to him,’ says DA
By SANDRA SWAIN
The Daily Astorian
Thursday, August 27, 2009

Despite his request for leniency during a sentencing hearing Tuesday, a Seaside man found guilty during a jury trial last week of fourth-degree assault is spending his 53rd birthday in the Clatsop County Jail.

"I don't believe your version of events," Judge Paula Brownhill told William Seth Maxwell, before sending him directly to jail to serve a 20-day sentence for the assault charge, with credit for time served. "Your behavior was not that of an upstanding citizen." He was also sentenced to 24 months of probation and must pay a $40 monthly monitoring fee, obey all laws and pay a $567 unitary assessment.

Tuesday's sentence stems from an incident in March 2008 at the Wells Fargo Bank branch inside the Seaside Safeway store. That's when Maxwell punched itinerant arborist Chris Wallace and knocked him to the floor during a dispute over a check from an insurance company for damage that happened during the big 2007 winter storm. Wallace had done some storm cleanup work for Maxwell and was supposed to get $3,000 of the $4,100 insurance check.

"He just intentionally clocked Mr. Wallace," District Attorney Josh Marquis told the court. "It's what people do when they have no control over their anger." The entire incident was recorded by the bank's surveillance camera and observed by witnesses including the bank manager.

Marquis said Wallace, who was not present for the trial or the sentencing, did not want medical treatment and the prosecution was not asking for restitution, just jail time. "The defendant acted like a thug. We believe he should receive a jail sentence of 30 to 60 days," Marquis continued, adding that Maxwell should also receive anger management counseling.

"Obviously I made a mistake in my relationship with Mr. Wallace," Maxwell told Judge Brownhill. He also described himself as an outstanding citizen, who started a water polo team and is active in the PTO, a parent-teacher organization.

Maxwell said he was fearful during the encounter at the bank because Wallace had a knife and had pushed him and knocked his wife down. But Brownhill said the surveillance video showed otherwise and there was no way Maxwell could have seen a knife.

Defense attorney Don Haller argued that Wallace was an "extremely difficult contractor," whom Maxwell had been dealing with for several months. Haller also said Wallace was wanted on warrants in Washington and Oregon.

"So Mr. Wallace deserved it?" Brownhill asked Haller.

Haller said no, but he asserted that the victim had helped create the situation that led to the incident. And Haller said Maxwell was not a thug, but was in desperate financial straits and unable to find employment. "The man made a mistake - it was a momentary mistake," Haller said.

Maxwell's money troubles stem from his October 2007 conviction for animal neglect at his Small World Farm in Seaside. His herd of nine horses had been seized in 2006 by Seaside police officers, the county sheriff, the county posse and volunteers.

During that trial, Maxwell had pleaded guilty to one count of first-degree animal neglect for failing to provide minimal care for his horse, Goliath, and one count of second-degree animal neglect of a mare named QT. He gave up ownership of the horses.

In January 2008, Maxwell was sentenced to 48 months probation, but did not receive jail time. He was also ordered to pay $14,800 in restitution to the group of women who volunteered to take in the neglected horses and nurse them back to health.

But Marquis said in court Tuesday that Maxwell has not made any restitution payments since October 2008. That violated the terms of his probation, and as a result, Marquis has filed a "show cause" amendment. A hearing is set for Tuesday.

"Maxwell just doesn't get it," Marquis said after the sentencing hearing Tuesday. "He thinks he's a middle-class citizen and the rules don't apply to him."
###

American Constitution Society Event

2009-08-27T08:24:00.000-07:00

The Oregon Lawyer Chapter of the American Constitution Society presents:
Let's Get Free: A Hip-Hop Theory of Justice

Featuring:

Paul Butler, Associate Dean for Faculty Development and Carville Dickinson Benson Research; Professor of Law, The George Washington University Law School;
and Author, Let's Get Free: A Hip-Hop Theory of Justice

and

Josh Marquis, District Attorney, Clatsop County; UO Honors '77, JD '80; former President, Oregon District Attorney's Association; and Member, Board of Directors, National District Attorneys Association

Thursday, September 17, 2009
6:00 p.m. - 7:30 p.m.
University of Oregon
White Stag Building
70 NW Couch Street
Portland, OR

There is no charge to attend this event. Please RSVP here.

Summer Greetings

2009-08-11T10:31:00.000-07:00

A blog is by its nature an attempt to communicate in the language of the blogger, so it will come as no surprise that I enjoy posting the positive things happen to me and within my professional world. Negative and/or hateful comments from Anonymous (posted here and elsewhere) can be hurtful, but mostly they're just trash. As if spitting at someone is going to make them change their point of view. Those of us who are thoughtfully engaged in policy understand that it takes a long time -- sometimes a very, very long time -- to effect change, and that keeping a cool head and playing well with others is necessary most of the time.

There's a scene in the movie Philadelphia that speaks to me. Tom Hanks' character is on the witness stand and is asked what he likes about being a lawyer. He says:

Well... many things. But I think the thing I love the most,
is that every once in a while, not that often, but occasionally...
you get to be part of justice being done.
It's really quite a thrill when that happens.

Ever since I arrived in Astoria as the appointed DA in March of 1994, there were many who said I'd soon leap to some higher office. Sixteen years later, I continue to agree with my friends and colleagues on the Board of Directors of the National District Attorneys Association who say that being the DA is one of the best jobs in America. It's not the fabulous pay (hah!) or the massive power (checked by intelligence, empathy, the legislative and judicial branches of government, and the voters). It's that I get paid to do the right thing, to be a part of justice being done every day.

Contrary to conventional wisdom, that does not mean putting every wrongdoer in jail or prison. It means prosecuting those who need to be prosecuted, and having the wisdom to know the difference. This is especially important in a little town, a lightly-populated county, where there is little distance between me, the victims and their families, the defendants and their families, and even the jurors. We run into each other at the coffee shop where I like to eat lunch, at the supermarket, the Post Office, the Rotary luncheons.

One of the great people I've gotten to know through the NDAA Board is Charles (Joe) Hynes, the DA of Brooklyn (technically Kings County, New York). I was surprised and flattered when Joe called few months ago and asked if I would serve on the American Bar Association's 30-member Criminal Justice Section leadership council. I have publicly disagreed, often on the pages of their own magazine, with some of the positions the ABA has taken, and am viewed at best as a rowdy iconoclast by a good many of their members.

I'm a WYSIWYG kind of guy. What you see is what you get, and you can find me in the Archives section of this site. Looking through those earlier essays I find they continue to reflect my beliefs and interests, are fairly well-written, and sometimes come with photos of myself that make me cringe.

Occasionally you can find me on stage, and not while giving a speech at a state prosecutors association meeting somewhere around the country. This month marks my 16th consecutive season in the role of the Sheriff in the Astor Street Opry production of Shanghaied in Astoria. I had just arrived in Astoria when the Astoria Police Chief suggested I make a cameo appearance in the play. It is a VERY small role, just two lines, and I'm honored and pleased to be in rotation with some of the real actors and do eight or ten shows a year. It's one of the many reasons that I find Astoria a very special place, all the more so after traveling around the United States. Living in a little town is about a lot of little things that combined make big things -- like belonging to Rotary (and trying to live by their Four-Way Test) and working towards a four-gallon pin for the Red Cross.

Thankya, Constant Reader.*
(*borrowed from Stephen King)

For jurors in Michigan, no tweeting (or texting or Googling) allowed

2009-07-04T14:12:00.000-07:00

Tresa Baldas
July 1, 2009

Call it the silencing of the tweets.

The Michigan Supreme Court has laid the hammer down on gadget-happy jurors in banning all electronic communications by jurors during trial, including tweets on Twitter, text messages and Google searches.

The ruling, which takes effect Sept. 1, will require Michigan judges for the first time to instruct jurors not to use any handheld device, such as iPhones or Blackberrys, while in the jury box or during deliberations.

The state's high court issued the new rule on Tuesday in response to prosecutors' complaints that jurors were getting distracted by their cell phones, smart phones and PDAs, in some cases texting during trial or digging up their own information about a case and potentially tainting the judicial process.

Wouldn't common sense suggest that's wrong? "I don't think jurors go out and Google stuff thinking it's wrong. Sometimes it just doesn't click," said Charles Koop, immediate past president of the Prosecuting Attorneys Association of Michigan, which pushed for the new rule. "I think it brings home to the conscientious jurors -- which most jurors are -- that I'm not supposed to do this.' "

The new rule also helps older judges, who might not be tech-savvy, stop jurors from doing things in their courtroom that they are unaware of, said Koop, prosecuting attorney in Antrim County, Mich. "Judges of an older age may not be in tune as much as younger judges as to what's going on out there," Koop said, adding the constantly evolving PDAs are especially problematic for the courts. "It's a new technology. We're playing catch-up."

Michigan's new rule follows a wave of recent cases in which jurors have blogged, posted Tweets or sent text messages during trials, infuriating judges and triggering mistrials.

In Florida, Miami-Dade Circuit Court Judge Scott Silverman in May declared a mistrial in a civil fraud case after discovering a witness -- a company executive -- was texting his boss on the stand during a side bar conference. "I never had this happen before," Silverman stated. "This is completely outrageous."

On the flipside, an Arkansas judge in April ruled that a juror's Twitter postings during a trial won't affect a $12.6 million judgment issued against a buildings products company. Lawyers for that company had argued that the juror's Tweets during trial showed he was biased against the company, including one that said, "just gave away TWELVE MILLION DOLLARS of somebody else's money." But the judge upheld the verdict, finding that the tweets were in bad taste but not improper.

A Pennsylvania judge delivered a similar blow recently to defense lawyers in the corruption trial of a former state senator who requested a mistrial because a juror posted updates about the case on Twitter and Facebook, telling readers that a "big announcement" was coming. The judge, however, let the deliberations continue and a guilty verdict was issued. An appeal is in the works.

Looks like more states should consider following Michigan's suit, said Josh Marquis, who sits on the Board of Directors for the National District Attorney's Association and believes technology is wreaking havoc on the justice system.

"The potential for jury tampering is unbelievable. All you have to know is a person's cell number," said Marquis, district attorney in Clatsop County, Oregon, who has seen text messages and Google searches by jurors taint his own cases.

"One thing that will almost always cause a mistrial is extrinsic material coming into the jury room. In the pre-electronic age, that meant a dictionary or encyclopedia," Marquis said.

Those days are over. Now there's Google, Twitter, Facebook and a host of other cyberspace message boards for jurors to play on, and potentially kill a case.

"It almost invites people to do extrinsic research," Marquis said of the Internet and hand-held technology. "The problem is -- technology has far outpaced the court rules."

Next week, Marquis is going to the annual NDAA conference in Florida. He is counting on his Michigan colleagues to talk about their new rule, and the directive judges are now under to tell jurors that no electronic communications are allowed during trial. "The first thing I'm going to do is call them and say, 'bring this up,'" Marquis said.

According to the National Center for State Courts, a number of states have grappled with the problem of allowing jurors to bring cell phones to the courtroom. A recent questionnaire sent to court administrators across the country showed that many courts are addressing the problem of potential juror misconduct through hand-held devices.

For example, courts in Ramsey County, Minn. recently issued a new cell phone policy that prohibits jurors from brining any wireless communication device to court after two mistrials were declared when jurors used cell phones during deliberation against the court's order.

New Jersey, however, allows jurors to bring cell phones to court, but they must be turned off during trial. Cumberland County, Penn. has a similar phone policy. In Malheur County, Ore., jurors are not allowed to bring cell phones to court at all.

"This has been a hot topic," said Gregory Hurley, an analyst with the NCSC who studies trends in the courts.. "It's a funny balance that a court has to do. On the one hand, common sense says, 'get all the cell phones out of there. Sanitize the environment." But in this day and age, with people who have kids, you have to have a little compassion for the jurors."

He added: "If you want to take the cell phones out, you have to be extra careful to have phones around for people to use."

Tresa Baldas can be reached at tresa.baldas@incisivemedia.com.

NDAA endorses Sotomayor

2009-06-17T11:47:00.000-07:00

On June 8th, the NDAA sent the following letter to Senator Patrick Leahy, Chairman, and Senator Jeff Sessions, Ranking Member, of the Senate Committee on the Judiciary:

". . . [W]e offer our full support for the nomination of the Honorable Sonia Sotomayor to become the next Associate Justice of the United States Supreme Court. . . .

"Judge Sotomayor's depth of experience with all aspects of the law -- as a prosecutor, a private litigator, a Judge and as a Federal Judge -- has made her into an exemplary judge and an outstanding nominee to serve on our nation's highest court. She possesses wisdom, intelligence and a real-world training that would bring important insight to Supreme Court decisions. The National District Attorneys Association believes that Judge Sotomayor would be a welcome addition to the Supreme Court.

"We are happy to offer our full support for Judge Sotomayor's nomination to serve as a Supreme Court Associate Justice and encourage her swift nomination by the Senate."

the full text of the letter (.pdf file) is here

Miki Dora* -- not.

2009-06-12T18:43:00.000-07:00

Honolulu D.A. Peter Carlisle is a tough negotiator. Need proof? During our recent meeting in Waikiki of the Executive Committee of the National District Attorney's Association, he convinced me to try surfing.

I brought home an exotic collection of reef rash.

*A great read: All For a Few Perfect Waves: The Audacious Life and Legend of Rebel Surfer Miki Dora, by David Rensin. My wife, Cindy Price, worked with David on the book.

Alejandro Escalante-Franco Sentenced

2009-06-01T09:11:00.000-07:00

News Release
Clatsop County District Attorney's Office:
Alejandro Escalante-Franco Sentenced
May 29, 2009

On Friday, May 29, Clatsop County Circuit Judge Phil Nelson sentenced 35-year-old Alejandro Escalante-Franco to a prison term of just under three years under the new and tougher Measure 57 sentencing law.

Escanatle-Franco had been arrested after an investigation by the Clatsop County Inter-Agency Drug Task Force, after they served a search warrant on his home in Astoria on April 7 and recovered 105 grams of cocaine and 27 grams of methamphetamine, and over $2,000 in cash. He also was in possession of a forged social security card and was originally charged with Identity Theft as well. That charge was dismissed and Escalante-Francio pled guilty to charges of Delivery of Cocaine and Methamphetamine.

District Attorney Josh Marquis commended the Drug Task Force led by deputies from Sheriff Tom Bergin’s Office. “Meth and cocaine continue to be the scourge of our North Coast community,” Marquis said. “This arrest of a mid-level dealer is a good start to making our county an unfriendly place for drug dealers. If it were not for Measure 57, the defendant’s sentence would have been 16 to 18 months in prison instead of the 34 months to which he pled guilty.”

Measure 57 was one of two “get tough on property and drug crime” initiatives on the November 2008 ballot. Voters chose Measure 57, which had been backed by a broad coalition of district attorneys, unions, and defense attorneys, as a more balanced reaction to Oregon’s high rate of property crime. Measure 57 creates mandatory sentences for dealers of large amounts of drugs and gives judges the authority to sentence repeat property offenders (burglars, car and identity thieves) to prison time, and mandates treatment.

Marquis pointed out that, under Oregon law before Measure 57, a man with a prior felony record who stole and cut up the bronze statute of Sacagawea at Fort Clatsop National Park could only receive a maximum of 20 days in jail. If that crime were committed today, the judge could give up to three years in prison.

“More than 70% of felons do not go to prison, and first-time property offenders never go to prison in Oregon.” Marquis said. “We should give people struggling with drug addiction who commit non-violent crimes the chance to get clean, but need the stick of possible prison if they refuse to co-operate with probation and treatment.”

For more information, call 503-791-0012 or 503-338-3614.

Measure 57: the best way forward in this fiscal crisis

2009-05-26T15:04:00.000-07:00

Guest opinion by Bradley Berry, John Foote, Josh Marquis and Michael Schrunk, guest opinion May 24, 2009

Last November, Oregon voters overwhelmingly enacted Ballot Measure 57, which enhances penalties for repeat property offenders and provides drug and alcohol treatment for addicted offenders.

In passing the measure, voters embraced a balanced system of justice with incentives for those willing to change and the power to sanction those who abuse the rights of others. Based on the balance between accountability and access to treatment, Oregon's 36 district attorneys joined a broad coalition of partners to vigorously support the measure.

Measure 57 was carefully crafted to give judges the power to incapacitate repeat property offenders for a time sufficient to ensure they can obtain treatment during their time in prison. Eligible offenders who successfully complete treatment programs are entitled to significant sentence reductions. The measure, which has been in effect for six months and impacted 125 offenders, is fair and balanced.

Unfortunately, since the implementation of the measure, the state and many of its citizens are confronting an unprecedented fiscal crisis. The economy makes it impossible for the state to conduct business as usual. As a result, some are questioning the wisdom of implementing a measure that may place an additional burden on the budget. Of course, it is precisely during these difficult budget times that we must most ardently protect our personal possessions. Oregonians cannot afford to have their identities appropriated, their cars stolen or their homes burglarized.

We must, nevertheless, find a way to balance our state budget. Oregon's district attorneys are committed to working with state lawmakers to find a financially responsible solution that does not erode the public safety successes achieved over the past 20 years -- Oregon's violent crime rate has decreased by 46 percent and our property crime rates have declined from a high of fourth worst in the nation down to 18th.

Oregon's district attorneys and crime victims groups have suggested the Legislature make reductions to our public safety system based on four core principles. Foremost, we must protect the public and minimize victimization. Second, any policy changes intended to save system costs must be one-time, reversible adjustments. Third, any cuts to the public safety sector must be balanced. Disproportionate reductions to any one sector, be it the courts, public defenders or the front-line officers, can cause the entire system to collapse. Finally, the public expects transparency in our sentencing policies. If we must cut sentences, victims and our citizens deserve to know at the outset the extent to which our budget crisis will reduce accountability for criminals.

To achieve a balanced budget, the district attorneys and crime victims groups have proposed that the Legislature enact a system of targeted reductions for nonviolent offenders who are nearing the end of their sentences. We would rather no prisoner get out early. However, by targeting those offenders who are low- and medium-risk, we believe it is possible to maximize cost savings while minimizing the risk of reoffending.

To further reduce revictimization, we support using federal stimulus dollars and, possibly, a modest reinvestment of the savings to create new re-entry programs or enhance existing community services. Small reductions in our recidivism rates can generate substantial long-term savings.

It is not a politically expedient proposal. No legislator wants to be responsible for opening the back doors of our prisons. Yet the unprecedented shortfall will mean hard votes across the budget -- larger class sizes, reduced services for the vulnerable and more. While unpleasant, there is simply no way to cut $250 million from the public safety budget without letting people who belong in prison out early.

Sometimes the hard way is the right way. A one-time sentence reduction for Oregon's nonviolent criminals will allow us to maintain a functional court system, an operational public defense network, and most importantly, an adequate state police presence with sufficient forensic capabilities.

It will also allow us to enact Measure 57, which was endorsed by a wide swath of politicians and advocates. We need to stand by those promises. The criminals affected by Measure 57 are repeat burglars and repeat identity thieves, not first-time offenders. These are people often in the throes of drug addiction and at the height of their criminal behavior. It makes more sense to hold them accountable now and hope to use treatment programs that have been shown to work. If we have to reduce our prison population, let's do it using those less dangerous felons who have hopefully learned something from their stay in prison.

Bradley Berry is Yamhill County district attorney, John Foote is Clackamas County district attorney, Josh Marquis is Clatsop County district attorney and Michael Schrunk is Multnomah County district attorney.

See also:
"Let's suspend Measure 57," guest opinion by Chuck Sheketoff, The Oregonian, June 24, 2009
"Oregon's in a box on prison spending", by the Oregonian Editorial Board, June 24, 2009

Guns v. Butter = Hungry and Defenseless

2009-04-16T21:10:00.000-07:00

Guest Column
For The Daily Astorian

A recent editorial claimed that "Incarceration is an Oregonian's only entitlement" and went on say that "convicted criminals will get immediate seating in fully-funded accommodations," and that these luxuries all come at the cost of Oregon - our children's - education.

Let's look at the facts, once again.

Oregonians spend about 57 cents of every state tax dollar on education and about 7 cents on prisons and probation.

Oregon incarcerates its criminals at a rate far lower than most states. The average sentence served is just over three years for serious felonies, and about 75 percent of con'victed felons aren't given any prison sentence at all. That rate has actually decreased over the last 18 years, contrary to the conventional wisdom. The sentence in Clatsop County for a third-time drunk driver is usually 30 days or less in jail.

Anyone who thinks Clatsop County is sending the wrong people to jail or to prison is invited to come to the Clatsop County Courthouse for what we call "one-fifteens." Since neither the county, which runs the jail, nor the state, which funds the court, can afford a release officer, it is at 1:15 p.m. every day that I appear in court and recommend the judge release people with lengthy felony records because I know there are only 60 available beds and they must go to the worst of the worst. County taxpayers have spent tens of thousands of dollars on studies that tell us we need at least twice that jail space, and yet ...

During the campaign for the third judgeship two years ago, one of the (unelected) candidates claimed that "the wrong people are in jail. I'd asked him to identify a single person in the Clatsop County jail who did not belong there. He couldn't, even upon reflection. Anyone: Examine any of the 40 people Clatsop County sent to state prison in 2003 and make a case that the person doesn't belong there.

Judge Phil Nelson's drug court does not work without an empty jail bed as the last resort for someone who refuses to work the court's plan. The woman who is beaten by her boyfriend needs the protection of a jail bed to keep him away from her.

Our judges are not jailing the wrong people. They are not sending the wrong people to prison. Our choice is not jail or treatment, it's often jail and treatment. Unfortunately there is not enough of either available in either Clatsop County or the state of Oregon.

I am never going to run out of customers. I'd like to have fewer of them, because that would mean fewer people are robbed, beaten, maimed or killed by drunk drivers, raped or murdered. But we do not live in a prison state that denies children what they need in order to lock up those who would prey on them.

We need adequate funds at both ends of the system. We shouldn't short educational needs, neither should we short programs and facilities that prevent crime. It is a false economy that seeks to deny the necessity of holding those few members of the community who victimize the overwhelming majority of law-abiding citizens.

In this time of economic distress it is all the more important that your tax dollars are wisely spent. Let's not get drawn into the "guns or butter" argument that leaves us both hungry and defenseless.

#### END

Related story from Willamette Week
issue #35.23, published April 15, 2009

Prisoners Dilemma
Crime and punishment—and how state budget problems may bring huge changes in both.
BY JAMES PITKIN

REP. CHIP SHIELDS (LEFT)
CLATSOP COUNTY DA JOSH MARQUIS (RIGHT)

Amid all the gloomy news around Oregon’s projected $3.1 billion state budget gap, there is potentially a bright side for liberals who have fought for years to reform how the state deals with criminals.

Those advocates for judicial reform are pitted against the state’s district attorneys in a high-stakes debate on how best to cut the state’s $1.6 billion biennial prison bill.

At the same time the state is considering releasing potentially thousands of prisoners, advocates are using the budget maw to push a rewrite of some of the controversial minimum sentences set when state voters passed Measure 11 in 1994.

With each prisoner costing the state $78 a day, sentencing reforms that in past years have died a quiet death in Salem now have new life. At the center of that revival is Rep. Chip Shields (D-North Portland), a point man on public safety in the House Ways and Means Committee.

Before he was elected to the Oregon House in 2004, Shields worked as a volunteer to pass Measure 94, a failed effort in 2000 to overturn Measure 11.

Now he’s leading the effort in Salem to reshape the state’s strategy on fighting crime—one he and others say puts too much emphasis on incarceration.

Along with such allies as Sen. Jackie Dingfelder (D-Northeast Portland) and Rep. Mitch Greenlick (D-Northwest Portland), Shields is fighting to gut Measure 11 from the inside out. And the need for massive prison cuts has provided a rare opportunity.

“The budget crisis forces us to get serious about solutions,” Shields says. “It has definitely forced us to deal with this in the short term. The question is if we will also have the courage to balance things out in the long term.”

That’s where the Oregon District Attorneys Association comes in.

Given the state’s dire budget projections, the DAs reluctantly agree with the need to release prisoners. The issue is who should get out.

Asked to cut up to 30 percent of its budget, the Oregon Department of Corrections has floated a plan to close 10 of the state’s 14 prisons and free 4,100 of 13,800 inmates. In the end, the Legislature and Gov. Ted Kulongoski will decide how many people get released, and who they are.

The DAs resist freeing violent criminals sentenced under Measure 11. But Shields and his allies say some Measure 11 convicts should get consideration.

As the DAs are quick to point out, releasing prisoners will probably mean an uptick in crime. But their opponents say that won’t necessarily happen, and that investing in treatment and community corrections can help any increase.

The larger fight is over Measure 11 sentences—the DAs are adamant they shouldn’t be changed just to save money. Faced with the need to reduce prison populations, they prefer to do so by releasing prisoners early out the back door now, rather than admitting fewer through the front gate in the future.

“Let’s stick with a one-time event for what hopefully is a one-time problem, rather than an unprecedented change in our sentencing structure that will be very hard to reverse,” says Kevin Neely, lobbyist for the district attorneys association.

It’s a battle the DAs aren’t used to waging—in the past, almost any attempt to change Measure 11 that they didn’t support was dead on arrival in Salem. With Democrats enjoying large majorities in the House and Senate, that’s no longer the case.

The DAs are using the debate to correct what they call a widespread myth: that all Measure 11 sentences are mandatory. In fact, due to past reforms in the Legislature, judges often have leeway in sentencing and can even give probation in some cases if the defendant qualifies.

Nonetheless, Clatsop County DA Josh Marquis says he now expects a “wholesale attack on Measure 11 as a means of reducing the cost of corrections.”

What Shields and his allies have introduced so far falls short of that. They’re sponsoring bills, all opposed by the DAs, that would:

Make courts inform juries of mandatory minimums.
Reduce sentences for some crimes such as second-degree assault and second-degree robbery, but increase sentences for more serious offenses like first-degree rape.
Give judges power to release juvenile offenders who were tried as adults after they complete half their sentence.

Matters were further complicated by Measure 57, which state voters approved last fall. The measure stiffened sentences and mandated treatment for some drug and property crimes. But some lawmakers say there’s no way the state can afford to do that. They want to repeal or delay Measure 57. The Oregon Criminal Justice Commission puts Measure 57’s price tag at about $150 million for the biennium, but some DAs believe that estimate is too high.

Also in the mix is a bill from Dingfelder that would make all Measure 11 sentences discretionary. Neely says its success seems unlikely. However, advocates are still pushing for widespread reforms in the coming weeks.

“We’d like to see efforts that take a broader approach at Measure 11 reform, rather than just doing it piecemeal,” says David Rogers, head of the Portland-based Partnership for Safety and Justice.

But DAs insist Measure 11 helped reduce violent crime in the state by half.

“You are substantially safer in Oregon,” says Neely, “because of Measure 11.”

FACT: Oregon spends a higher portion of its general fund on corrections than any other state—10.9 percent in 2007, according to the Pew Center.

Keep The Oregon State Flag

2009-02-08T11:54:00.000-08:00

An idea that is expensive, unnecessary and an insult to a proud and important history.

Oregon's 150th birthday is this Valentine's Day, February 14th. Last October, admittedly before the financial crisis in the state and in the nation was acknowledged as the worst since the Great Depression, the Oregonian came up with the idea that, as a birthday gift to ourselves, we Oregonians should re-design our State Flag because, among other things, (1) the state seal looks like "a bunch of others"; 2) it is expensive to produce and heavy because it sports a design on both sides; (3) the beaver on the reverse side resembles "a blob of butterscotch pudding"; and (4) altogether the flag doesn't represent the essence of Oregon. Judge for yourself:

The Oregonian says a change wouldn’t cost much because the thousands of state flags that are displayed in offices like my own and fly from state buildings would be replaced only when they wear out. The one in my office is over 50 years old and shows no signs of wear at all, so it could be the next sesquicenntenial before Oregon actually has one state flag.

The editors held a contest. There were many submissions, many from schoolkids who got their first lesson in civics. They were admittedly fun to look at. The thousands were narrowed to ten finalists, and finally, the winner: None of the above. In other words: The current flag will do just fine, thanks. In second place:

It's the blob of butterscotch, which designer R.C. Gray of West Linn retained to honor -- yes, you guessed it -- the current flag.

I'm going to leave aside the pedestrian issue of money -- not so easy to leave aside when, among other essential services on the chopping block, home care is slated to be taken away from dependent seniors.

My real gripe is with the appalling lack of understanding of our flag’s symbolism.

When I attended grade school in Eugene, we were taught the state flower -- Mahonia, the Oregon grape -- and the state song, “Oregon, My Oregon”:

Land of the Empire Builders, Land of the Golden West;
Conquered and held by free men, Fairest and the best.
On-ward and upward ever, Forward and on, and on;
Hail to thee, Land of the Heroes, My Oregon.

Land of the rose and sunshine, Land of the summer's breeze;
Laden with health and vigor, Fresh from the western seas.
Blest by the blood of martyrs, Land of the setting sun;
Hail to thee, Land of Promise, My Oregon.

[midi file here]

And we were taught the meaning of the symbols on the state flag. Here's the official description of the state seal:

. . . an escutcheon, supported by 33 stars [the number of states in 1859], and divided by an ordinary, with the inscription, "The Union." In chief mountains, an elk with branching antlers, a wagon, the Pacific Ocean, on which there are a British man-of-war departing and an American steamer arriving. The second quartering with a sheaf, plow and a pickax. Crest The American eagle. Legend - State of Oregon, 1859.

As a resident of Astoria it's interesting to me that much of the state's seal reflects important events at the mouth of the mighty Columbia River. The British Man-of-War, sails unfurled, is leaving Fort George (first and afterwards Astoria) after President Polk had negotiated the full transfer of the Oregon Territory from Britain in 1846. The American frigate, sails furled, is entering the harbor as the sun sets on the British Empire, symbolizing a new day for Oregon.

The flag also sports symbols for the wheat fields of eastern Oregon and the wagon trains of the Oregon Trail.

Perhaps most importantly, the seal includes the the words “The Union.” Oregon was admitted to the Union in 1859. What was happening in America then?

Only the greatest debate in American history: Whether America would be a slave nation or a free nation. Oregon chose the motto “The Union” to make forever clear that it stood with the anti-slavery forces and against the idea of a nation divided. The notion carries forward to the present day, and has particular poignance with the recent election of Barack Obama as President of theUnited States.

Many buildings in our nation's capitol display all the flags of our united states. The Oregon flag is easy to spot. It has our name on it. Yes, there are some graphically hip flags like Arizona and New Mexico;the Mississippi and Alabama flags are controversial because they have yet to be purged of the symbols of slavery.

Was Oregon’s history so noble? No. The Klan held much sway for many decades, and Native Americans, along with Americans of Chinese, African and Japanese descent, were treated abominably.

But, at a critical moment in Oregon history, Oregonians lined up with the angels of the nation’s better nature. So, as the OSU Admissions blog says, "If it ain't broke, don't fix it."

Keep the Flag. Don't bother our legislators, who surely have more important work, with this falderal.

Eric Holder for US Attorney General

2009-01-04T10:24:00.000-08:00

President-elect Barack Obama has nominated Eric Holder to be his (and our) Attorney General. Holder is remarkably well qualified for this job, having served as a judge, the chief federal prosecutor in the District of Columbia, and as Deputy Attorney General, the number two job in the DoJ, during the Clinton Administration.

Some Republicans may try to make his appointment difficult, even though it seems impossible that they could block his confirmation. Here's a bit from Scott Helman's report for The Boston Globe, "Holder's hearings might be rocky," Dec. 29, 2008:

"Judiciary Committee staff members have pulled more than 150 boxes from their archives and have been poring over internal memos and transcripts from Holder's tenure at the Department of Justice.
Republicans have also asked the Justice Department and the Clinton Presidential Library for documents relating to, among other things, Clinton's impeachment, former vice president Al Gore's fund-raising activities during the 1996 presidential campaign, the 1993 federal raid on the Branch Davidian complex in Waco, Texas, and the pardon of financier Marc Rich.
And on Dec. 17, Senator Arlen Specter of Pennsylvania, the ranking Republican on the Judiciary Committee, sent a letter to Holder asking him to account for "apparent omissions" in his questionnaire, including work on gaming that Holder did in 2004 for Rod Blagojevich, the beleaguered Illinois governor."

I serve on the Executive Committee of the Board of Directors of the National District Attorneys Association, its governing body. I share the belief of my fellow prosecutors that Holder will make an excellent Attorney General and bring a bright new day to the United States Department of Justice, and I helped craft an endorsing statement signed by every member of the Executive Committee, both Democrats and Republicans. (click to view 2-page .pdf file of the letter)

(See also "Prosecutors for Obama," September 28, 2008.)

Nuremberg

2008-12-07T11:27:00.000-08:00

I had the opportunity last month to visit Nuremberg, Germany and a particularly moving exhibit entitled Fascination and Terror, at the Documentation Centre on the old Nazi Party Rally Grounds.

I arrived almost exactly on the 53rd anniversary of opening statements for the International Military Tribunal (IMT), in November 1945. As the son of a refugee from Nazi Germany, as a prosecutor and as a thinking human being, the significance of Nuremberg has always held particular importance to me. It was the site of the incredibly huge National Socialist (Nazi) Party rallies of the 1930s; and the racist laws that stripped German Jews of virtually all their rights were known as the Nuremberg Laws.

Although it should have been poetic justice that brought the International War Tribunal to Nuremberg's Palace of Justice, like so many things the choice was made for more banal reasons. Between the British and the American bombings, much of Germany had been reduced to rubble. The Palace in Nuremberg, built from 1910 to 1916, was largely undamaged and contained one of the few working courtrooms large enough to accommodate the trials.

I strongly recommend Stanley Kramer's 1961 film Judgment at Nuremberg, with its amazing cast including Spencer Tracy, Marlene Deitrich, Judy Garland, Burt Lancaster, Richard Widmark, Maximillian Schell, Montgomery Clift, Werner Klemperer and William Shatner. Shot in black-and-white the film is a fictionalized account not of one of the more famous trials of 1945 but of a 1947 trial near the end of the International Military Tribunal's commission. The film explores the issues of law, responsibility, duty, and good and evil in all its intercises.

I was particularly interested in visiting the exhibits at the Nazy Party Ground War Crimes Documentation Museum. I felt I was bearing witness for my father and my family, much as he and I had done when we were the first in our family in 60 years to visit his grandparents' graves in the Weissensee Jewish Cemetery, in Berlin, in 1993. (Hitler left the cemetery unmolested, afraid of the unknown occult repercussions.)

I also wanted to walk the path of Robert H. Jackson, a personal legal hero, sometimes referred to as the most famous or important American no one has ever heard of. Jackson was chief American prosecutor at the IMT, a position for which he had stepped down as a Justice of the Supreme Court of the United States, likely sacrificing his shot at Chief Justice. Jackson notably wrote that "the Constitution is not a suicide pact" and many other profound and eloquent statements, particularly those he delivered in Nuremberg. (photo by Ray D'Addario)

Those who believe in Jung's concept of synchronicity -- a oneness of the universe -- will appreciate the phone call I received a few days before I left for Nuremberg. Charles Lane is an editorial writer for the Washington Post who writes mostly about the Supreme Court and the judicial system (and whose most recent book, The Day Freedom Died, about the 1873 murder by a white militia of 80 freed men in Colfax, Louisiana, and the resulting Supreme Court case, is one of the most compelling true-crime tales ever written). Chuck, as he is known, writes on crime and punishment in America, Japan, Germany and other places , and had called to ask me a question or two. When I mentioned I was en route to Nuremberg, Chuck told me about John Q. Barrett, a St. John's University School of Law professor who is finishing a book on Robert Jackson -- and who might be in Nuremberg at the same time.

Barrett maintains a listserve that contains the following remembrance, recorded on Thanksgiving 1945 by Major Frank Wallis, Assistant Trial Counsel.

Thursday, Thanksgiving day—I was reached. It is difficult to attempt to record any emotions as I stood up in the courtroom—before the prisoners dock—and the 8 judges—before some 350 newspaper men and women, the cameras and more cameras—and started to present the 1^st phase of the American case—the common plan and conspiracy—the seizure of control by the Nazis, the consolidation of that control—in short what happened in Germany during the pre war era—the terror, the ruthless purge of the opposition—the destruction of organized labor, the persecution of the churches, the persecution of the Jews, the militarization of the youth and of the country—all in preparation for a gigantic war of aggression aimed at the domination of Europe. As I looked at them [the defendants]—it was with a feeling of scorn and contempt—mixed with a bit of awe—when I remembered how close they came to success in their mad undertaking. Next I was conscious that I was speaking to the world—not only the world of today—but the world of future generations—as this was history that was being made and recorded, history that would be in the school books, history that would be a source of study for years to come by International lawyers and students. However, I did not have much time or opportunity for reflection—I had a job to do—to drive a few nails into the coffins of the bastards with words—and for the next four hours I proceeded to do it to the best of my ability. I don't think that I will ever forget Thanksgiving 1945—and I doubt if I'll ever spend another Thanksgiving—in a strange country, in an International Court Room prosecuting such low level scoundrels—I certainly hope not.

Barrett's epilogue to Wallis's presentation reads:

As Thanksgiving approaches, I wish for each of you --American and not, religious and not--a Nuremberg perspective that includes gratitude, peace, justice and human alliance.

I think of my father. Lucian Marquis escaped the Nazis at age 12, fought them as an American infantryman and interrogator in Patton's Army, and went on to teach for almost 50 years, leaving legions of devoted students.

I reflect on the nature of my job, the necessity of accountability and responsibility, and my father's warning, drawn from another Nazi survivor, Italian writer Ignazio Silone, who worked for the OSS during World War II: "Never make fun of a man in jail."

If one agrees with Jung that coincidence is trumped by synchronicity, then I was particularly fortunate to visit Courtroom 600, where the most famous of the IMT trials took place. The courtroom was enlarged to accommodate the Nazi trials and then returned to its original size, after which it remained in use for court sessions. Even though I was unable to stay in Nuremberg a couple extra days to attend a ceremony in the courtroom with Whitney Harris, the last living of the Nuremberg "podium prosecutors," now 96, I did visit on the very last day the courtroom would be open to the public until sometime in 2010, when it will reopen as a memorial site for the trials.

In the words of one of my favorite lines from a movie, "Is it possible that there are no coincidences"?

Measure 57 is the better choice

2008-10-14T15:00:00.001-07:00

Guest Column
For The Daily Astorian
Tuesday, October 14, 2008

As your district attorney for more than 14 years, you elect me to protect you from the small number of criminals who break the law.

Oregon is a state that gives voters the right to make substantial changes in state law, and in this election such a choice is before the voters. Voters have the opportunity to make three possible choices on the November ballot concerning property crime.

There are two essentially competing ballot measures - 57 and 61. The latter was drafted by Kevin Mannix and proposes mandatory prison sentences for several first-time property offenses, including burglary and identity theft. Measure 57 was referred by the Legislature and is supported by a broad coalition ranging from criminal defense attorneys to almost every elected Oregon prosecutor. Measure 57 gives judges the power to sentence drug dealers, thieves and burglars to up to three years in prison and to order treatment.

Our citizens are extremely frustrated that a small number of criminals continues to commit the majority of the property crime. Oregonians are so frustrated that they are going to pass both Measures 57 and 61; the question is which deserves the most votes and will be enacted into law? If both measures pass, the one which gets the greater number of votes takes effect and the other one that "passed" by a lesser amount does not go into effect.

Because of this, your vote is even more critical, and I hope you will join me in voting yes on Measure 57.

In the 14 years I have served as Clatsop County's chief prosecutor, no one has ever accused me of being soft on crime. I support Measure 57 not only because it is much less expensive but also because it covers a much broader number of repeat property crimes than Measure 61. It gives judges the authority to impose prison, but doesn't make it mandatory, and offers treatment that is often critical for offenders who are overwhelmingly involved in substance abuse.

Since 2005, I have served on the Oregon Criminal Justice Commission which reviews Oregon's sentencing guidelines. This gives me a unique perspective on Oregon sentencing policy. Since 1994 when a judge sentences a rapist to eight years in prison, they actually serve eight years in prison. But while violent crime has dramatically decreased over the last 10 years, property crime rates have remained high, in large part because judges have been prevented from giving significant sentences.

One recent vivid example was the theft and destruction of the statue of Sacagewea at Lewis and Clark National Park. The criminal who vandalized and cut the head off the bronze statute had a criminal record that included misdemeanor and felony convictions. He was convicted of aggravated theft in the first degree, which on paper carries a possible 10 years in prison. What was the actual sentence?. Twenty days in jail. The judge said he wished he could give him more time, but sentencing guidelines forbade it.

Under Measure 57 he could have given this repeat criminal up to two years in prison.

Under Measure 61 this particular crime isn't even covered, so the judge would still be stuck with a maximum of 20 days.

For a justice system to work, there needs to be proportionality and flexibility. Not all crimes are the same and not all criminals are the same. Under Measure 61 anyone convicted of residential burglary would be automatically sentenced to three years in prison. Some burglars deserve that, but I have prosecuted many cases where a young person with no criminal record breaks into a vacation home and steals liquor. While this is a serious offense, forcing a judge to impose a three-year prison term makes little sense.

By the same token, if we fail to pass Measure 57, Oregon will remain the favorite place for identity thieves and burglars to ply their trade.

If you have questions about these ballot measures, feel free to contact me at (coastda@aol.com) or call me at my office at (503) 325-8581.

Prosecutors for Obama

2008-09-28T22:15:00.000-07:00

I have almost always voted for Democrats for President (I think I voted for John Anderson in 1980), but party affiliation is less important than the content of a candidate's character, intelligence, and what they bring to the office. Several months ago, after Bill Richardson dropped out, I decided that the best candidate for the next President of the United States was and is Barack Obama.

The federal government's role in crime control is largely that of leadership and funding. Former British Prime Minister Tony Blair said that justice is best served by leaders who are "tough on crime and tougher on the causes of crime." Barack Obama has said that it's not enough to be tough on crime, we must be tough and smart.

The concept of being tough and smart and fair is consistent with Obama's repeated calls for personal responsibility. "I believe that change comes not from the top-down, but from the bottom-up," he has repeatedly said. "[People] know government can't solve all their problems, and they don't expect it to. They believe in personal responsibility, and hard work, and self-reliance."

Your local prosecutors have the job of bringing accountability with fairness into the community. State and local prosecutors handle about 95% of all criminal prosecutions in this country. Several months ago I started gathering other elected prosecutors to endorse Obama and to help spread the word that, contrary to what might be conventional wisdom, career prosecutors are enthusiastic about Barack Obama.

The biggest failure of the Republican administration has been the abandonment of the federal Byrne Grants, which provided money to fight interstate and interagency crimes -- including funding for DNA databases, sex offender registries and gang task forces -- as well local drug prevention, rehab and enforcement programs. Rural and small towns were particularly hard hit, and many of their drug task forces simply closed up shop.

The Bush administration has all but eliminated its funding to the National Advocacy Center, in Columbia, South Carolina, for the training and continuing education of local and state prosecutors On top of that, there is almost no communication between the federal prosecutors in the Department of Justice and the state and local prosecutors. Injustice flourishes best when the person standing at the gateway of the justice system -- the prosecutor -- doesn't or can't do the job well. All the more reason to make sure that those men and women are adequately trained and valued for their work.

Federal sentencing laws should involve rational drug control policies, giving out tough sentences to those who are major traffickers in drugs and humans. Obama promises to eliminate the sentencing disparity between crack and powder-based cocaine, in which the same five-year mandatory minimum sentence is required for 5 grams of crack cocaine and 500 grams of powder cocaine.

We need foreign policies that address international drug production, whether that is heroin in Afghanistan, cocaine in Colombia, or methamphetamine in Mexico. Those polices should address the truly responsible - traffickers - and not simply implement quotas which only encourage the use of valuable federal prosecution resources on end-users.

We also need to stitch up holes in the system, like the current policy of providing nothing more than a bus ticket back home to someone illegally crossing the Mexican-American border with 499 pounds of marijuana.

In the same vein, the Bush administration has paid too little attention to human trafficking and the horrible toll it takes on women and children.

It's perhaps particularly important that the Department of Justice be de-politicized. The firing of eight US Attorneys, seven in one day, in 2006 -- most of whom were presiding over public corruption trials at the time -- undermined the integrity of the Department. Obama has pledged to end ideological litmus tests at DOJ, even requiring new hires to affirm that they weren't offered the job based on political affiliation alone, and employees who make hiring decisions to certify that they did not take political affiliation into account for career positions.

The ethical failures of the Bush administration at the Department of Justice and its indifference to the needs of local law enforcement working amidst a worsening economy call for CHANGE.

Crime is not a liberal versus conservative issue, and for too long it's been a code word for failed policies designed to curry favor with one extreme or the other. Changing the old rhetoric means creating new alliances that can create communities -- and not just gated communities -- where parents are not afraid their children will be shot on the street. The victims of crime are, out of all proportion to America, women, and children, and people of color.

"It is up to us to create a better America," Obama says. As the Broken Window theory proved, that starts with the little things -- some of which are little only on a national level. Your neighbor beat his wife last Saturday night? That won't make the news. The local flower shop was vandalized? No news at eleven. But it matters to those people, their families. That's where your well-trained, well-valued local prosecutor steps in.

These prosecutors from across America have declared their support for the candidate of Change, Barack Obama: Stan Levco, Evansville, Indiana; Everett Fowle, Augusta, Maine; Bob McCulloch, St. Louis, Missouri; Kamala Harris, San Francisco, California; John Sarcone, Des Moines, Iowa; Barry Kirscher, Palm Beach, Florida; Jim Fox, Redwood City, California; Barbara LaWall, Tucson, Arizona; and many, many others.

Let's be frank: Some voters are afraid that Barack Obama will head an administration that tolerates and excuses crime, particularly among the African-American community. Yet Obama calls for accountability that starts with the family and the community. It is a message not of excuses, but of responsibility.

Barack Obama's life story personifies the American dream. His election has the promise of bringing America into a post-racial era of politics from which everyone would benefit, and make real the Langston Hughes plea that "America must be, America will be, America to me."

For every American.

Knight of Rosaria

2008-06-20T21:15:00.000-07:00

Honor bestowed on DA
Daily Astorian, June 20, 2008, "In One Ear" feature

Clatsop County District Attorney Josh Marquis can now claim to be a knight ... sort of. Marquis, pictured above kneeling, was named a "Knight of Rosaria" at a ceremony as part of the Portland Rose Festival this year.

He joins several prominent Astorians who have been so honored in the past, as well as actors Jimmy Stewart, Red Skelton, and others deemed worthy by the Royal Rosarians in annual ceremonies since 1921.

Rosarian Prime Minister Peter Glazer made a point of honoring a number of people in the justice community this year including Oregon Chief Justice Paul De Muniz, Portland Police Chief Rosie Sizer and Portland District Attorney Mike Schrunk. Marquis said he was honored to be in such company.

Debunking myths about Measure 11

2008-05-30T08:48:00.000-07:00

Friday, May 30, 2008

In 1994 Oregon voters overwhelmingly passed Measure 11. An effort to repeal the law in 2000 was rejected by a resounding 75 percent of voters. You'd think the message would be clear: Oregonians want there to be truth in sentencing. Still, opponents of the law want to take another swipe.

Oregonians are again facing an onslaught of propaganda that seeks to persuade us to believe several myths, frightful urban legends that have been pressed in many a newspaper editorial, including in The Oregonian.

First myth: Measure 11 squanders our children's future by turning Oregon into a penal colony. We spend more money locking up people than educating them. One recent study by the Pew Center found that Oregon spends more money on prisons than higher ed -- more than any other state.

The truth: About 58 cents of every state tax dollar funds education (K through higher education), and about 9 cents funds our corrections departments and facilities. Barely 2 of those 9 cents are spent on Measure 11 offenders. The Pew Center study included the nearly quarter-billion dollars the state of Oregon spends to fund local probation -- a cost that's picked up by municipalities and counties in most other states -- and it didn't include the state's support of Oregon Health & Science University or its many community colleges.

Second myth: Measure 11 has filled our prisons with doe-eyed first-time pot smokers.

The truth: More than 60 percent of all the 13,000-odd inmates in state custody are there for violent or crimes against people. Fewer than 25 percent of people convicted of a felony are sentenced to prison; the rest are put on probation.

Measure 11 offenses include the higher degrees of homicide -- excluding criminally negligent homicide -- and more serious sex felonies such as rape and child molestation. It doesn't include any degree of burglary, even home-invasion burglary, nor any drug offenses, not even furnishing methamphetamine to minors.

Third myth (as claimed in the 1994 effort to defeat Measure 11): Measure 11 will overwhelm Oregon's prisons with 6,000 new prisoners by the year 2000.

The truth: Measure 11 added about 2,600 prisoners by 2000, largely because of judicious charging decisions by Oregon's 36 elected district attorneys. Even today only 4,000 more prisoners have been added. Read the Metro section of The Oregonian, and you'll see articles in which thugs and gang-bangers are receiving sentences of 12 to 20 years. These sentences are the result of our judges using their discretion to make Measure 11 sentences consecutive because they believe some crimes merit more than the mandatory minimum.

The doctrinaire opponents of incarceration, those who believe every prison sentence is a failure of the system, didn't prevail in last week's Democratic primary. Attorney General-elect John Kroger won a stunning victory because he had broad support, from almost every elected DA in Oregon to labor leaders and supporters of equal rights for gay people. Opponents should quit trying to repeal Measure 11 and work together with Kroger and other Oregonians to find sensible solutions to crime that offer effective treatment to those willing to accept it and incarceration to those who won't. No one is doing hard time for smoking a doobie in Oregon.

As the economy contracts and violent crime declines, there will be ever greater pressure on states to cut back on incarceration. The next great criminal justice policy debate in America will not be about the death penalty, a perennial and eternal discussion, but about sentencing policy.

Joshua Marquis is district attorney of Clatsop County and serves as a member of the Oregon Criminal Justice Commission.

John Kroger has vision

2008-04-30T16:07:00.000-07:00

Letter to the Editor, the Daily Astorian
Published Friday, April 25, 2008

On May 20, registered Democrats will choose Oregon's next attorney general. There is no Republican candidate, so the winner of the Democratic primary, between John Kroger and Greg Macpherson, will be the state's top lawyer.

I strongly endorse the candidacy of John Kroger. Kroger is a law professor at Lewis and Clark, a former prosecutor and not part of any political establishment. Kroger is the only candidate who has actually tried a jury trial, the only candidate who has put corporate criminals in prison and the only candidate endorsed by a wide diversity of groups, from the Sierra Club, to the labor unions, to former Gov. John Kitzhaber.

Many voters are anxious to get away from the old politics that have dominated state and national politics. Kroger has a vision for enhancing the environmental and consumer protection enforcement divisions of the Oregon Department of Justice.

He understands that Oregonians value the justice system, expect it to protect their quality of life and want it to maintain a balance between treatment and incarceration. Kroger knows that drug treatment is particularly needed, as Oregon ranks in the bottom third in the nation in access.

John Kroger has prosecuted Enron executives, Mafiosi and major drug dealers. He understands that law enforcement needs the support of an attorney general who knows their needs and challenges.

For the past quarter century, Oregon's attorney general has enjoyed a good working relationship with the 36 independently elected district attorneys who serve across the state. An overwhelming majority of those district attorneys endorse John Kroger for attorney general.

For all these reasons, I urge you to vote for John Kroger for attorney general in the May election.

Joshua Marquis
Clatsop County District Attorney
Astoria

DA's stipend reinstated

2008-04-30T15:57:00.000-07:00

Clatsop County commissioners restore Marquis' $13,500 pay addition; issue was a key controversy last year

By JOE GAMM
The Daily Astorian
Thursday, April 24, 2008

Nearly a year after the Clatsop County Board of Commissioners stripped the district attorney of a county-paid stipend to his salary, it has reversed its decision.

Saying county District Attorney Josh Marquis has complied with its requirements of providing performance-based budget measures, Commissioner Ann Samuelson suggested the stipend should be reinstated.

The board voted 3-1 to reinstate the $13,500 stipend - retroactive to April 1 - with Commissioners Samuelson, Sam Patrick and Chairwoman Patricia Roberts in favor and Commissioner Jeff Hazen opposed during Wednesday night's meeting in the Judge Guy Boyington Building.

"I'm very pleased with this," Marquis said. "It was a very unwelcome distraction for everyone."

Hazen - who made the motion to strip the DA of his stipend last May during a budget hearing - said he still has concerns about the county paying part of a state employee's salary.

"I still feel strongly that the state should be paying in full on this," he said. "I'm going to remain firm in my decision."

The conflict over the DA's stipend began at the May 14, 2007, county budget hearing, when Hazen made his motion to strip the DA of the stipend. Budget committee members favored this in a 7-2 vote. During the Board of Commissioners' regular meeting June 27, members voted 4-1, with Patrick opposed and Hazen, Samuelson, Roberts and former commissioner Richard Lee in favor, to eliminating the stipend.

The decision started a protracted public battle that eventually led to supporters of reinstatement of the stipend putting a measure on last November's ballot. The measure would have changed the county charter to tie the DA's salary to a percentage of that of circuit court judges, thus reinstating the stipend.

It failed by 66 votes.

The bad feelings remained and many critics said Lee's leadership in opposition of the stipend played a role in his March 25 recall.

Wednesday's decision didn't completely satisfy stipend supporters.

Patrick asked that the stipend include an annual 3 percent cost of living increase. He made a motion to do so, but it failed for lack of a second.

The board also asked County Manager Scott Derickson to amend the 2008-2009 budget proposal to include the stipend.

"I'm asking that you put it in the budget for next year, but that it be a fixed amount at $13,500," Roberts said.

Derickson told the Board that it doesn't have authority to set the budget for next year. But the commissioners said they wanted it amended for the Budget Committee.

Hazen said he'd be willing to support the motion because it would be going to the Budget Committee for discussion.

Following the meeting, Marquis reiterated that he was pleased with the decision.

"They recognized the DA's role as a department head," Marquis said. "I'm very appreciative for Commissioner Samuelson for raising (the stipend decision) on her own."

(c)2008 The Daily Astorian

see also:

Pay restored to Oregon prosecutor with national reputation
4/24/2008, 12:31 p.m. PT
The Associated Press

ASTORIA, Ore. (AP) — District Attorney Josh Marquis has a paycheck made whole.

After a long political quarrel, the Clatsop County commission has voted to restore the local supplement to his state salary.

Marquis is a prosecutor with a national reputation as a death penalty advocate. His speeches and articles have brought him to the attention of U.S. Supreme Court Justice Antonin Scalia, who cited him in a 2006 death penalty case.

Last year, the county commissioners voted to cut the local money augmenting the $84,360 in state pay for district attorneys in the 27 Oregon counties with populations of less than 100,000.

A ballot measure followed, sponsored by his allies to restore a supplement. It narrowly failed.

After that, commission Chairman Richard Lee, a foe of Marquis, was ousted in a recall election.

The spat had a history.

In the mid-1990s, Marquis unsuccessfully prosecuted Lee on a charge of violating dog licensing requirements at a breeding operation. In 2006, Marquis' wife ran unsucsessfully against Lee.

In the pay debate, Lee cited Marquis' activity outside the county and pressed him to set performance measures.

On Wednesday, the commission voted to restore $13,500 in county funds to the base salary.

Commissioner Ann Samuelson said Marquis has provided performance-based budget measures, so she could support the local stipend.

The vote was 3-1, with commissioner Jeff Hazen saying he continued to believe that the state government should provide all the pay for prosecutors.

Many counties add a local stipend to their prosecutors' salaries, although some have been cutting them as a response to budget pressures.

"I'm very pleased with this," Marquis said. "It was a very unwelcome distraction for everyone."
from The Oregonian

Counting the Guilty

2008-03-26T07:58:00.000-07:00

Adam Liptak, "Sidebar" columnist and legal report for the New York Times, wrote an interesting
column this week called "Consensus on Counting the Innocent: We Can’t"

The column arose from a detailed opinion from US Supreme Court Judge Antonin Scalia, in
Kansas vs. Marsh, in which Scalia cited a series of writings by me on the subject of innocence
and the death penalty. I pointed out that the justice system may very well be operating with a
success rate (meaning rightful convictions) of about 99.973 percent.

It is certainly thrilling to be cited by a Supreme Court Justice. But, as with any research, the most
gratification comes from sparking a robust discussion. The opinion, like most of Scalia's work,
was pointed and controversial, and it begat a furious series of rebuttals both in academia and
on opinion pages.

Many people believe that any error is unacceptable. I would agree that we strive for that, but
the policy issue is: At what cost?

Cass Sunstein, law professor at the University of Chicago and noted progressive, set out the issue quite eloquently in a highly controversial article entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs." From the abstract:

Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death. Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent. The familiar problems with capital punishment - potential error, irreversibility, arbitrariness, and racial skew - do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form. The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat "statistical lives" with the seriousness that they deserve.

My writing on the subject began a few years back when Liptak sent me a study by Professor Samuel Gross of the University of Michigan that purported to document a startling number of wrongful conviction. Not long after that I was invited to be a presenter and writer to a symposium on the death penalty held in the November of 2004 at the campus of the Northwestern University Law School in Chicago. Prof. Gross was also on one of the panels discussing capital punishment. As it turned out, my article called "The Myth of Innocence" (not to be confused with the article of the same name that appeared in the National Review), was published in the Winter 2005 issue of Northwestern's Journal of Criminal alongside Prof. Gross'sarticle about "Exonerations in the United States, 1989-2003."

The central thesis of Professor Gross's study is his belief that wrongful conviction, particularly in murder cases, is epidemic; that the roughly 400 cases he could identify were merely the tip of the iceberg and that far more innocents remain undiscovered behind prison walls.

Only a fool would claim that our justice system is infallible. There were likely many false convictions before the exclusionary rule, mandated counsel for the accused, and the criminal jurisprudence that grew out of the Warren Court in the 1960s. The question is whether in modern America wrongful convictions are epidemic or episodic. The machinery of justice requires constant tinkering, but if it is hurling innocents into prison at a rate of 2 or 3 percent I would agree that such a system is dangerously flawed.

I took a close look at Gross's numbers and also at a list of cases he listed by state in which he claimed the defendants were exonerated. Some were from Oregon and others were cases I recognized and knew the background. It quickly became clear Gross considered exoneration to include reversal of a conviction and a not guilty verdict upon retrial.

Such a definition would seriously wound if nor torture the true definition of "exonerated," a word of great power that most people equate with actual innocence.

I agree with Prof. Gross that more than 400 innocent people probably were convicted in the United States between the 15-year period he studied, from 1989 to 2003. If that is in fact the number, the error rate would be so low as to barely merit notice, unless of course you or someone you cared for were one of the 400. But we should not make major social policy by anecdote. If we did, we would ban elective surgery and grossly restrict the ability of people to drive cars or receive medical prescriptions, all of which have a failure rate that results in tens of thousands of deaths annually.

The sensible and decent thing to do is to attempt to mold a system that minimizes as much as practical the risk of wrongful conviction. So, to give Professor Gross a fair shake, I assumed he undercounted wrongful convictions by a factor of 10 and that there were four thousand wrongful convictions for felonies in his 15-year period. In "The Innocent and the Shammed," an OpEd for the New York Times, published on January 26, 2006 and quoted by Scalia, I wrote:

So, let's give the professor the benefit of the doubt: let's assume that he understated the number of innocents by roughly a factor of 10, that instead of 340 there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent — or, to put it another way, a success rate of 99.973 percent.

We must aspire towards a system that discriminates so precisely between the guilty and the innocent that the error rate is as low as possible without unleashing hordes of sociopaths on society. A prosecutor's worst nightmare is not losing a case, it is convicting an innocent person.

Commentary about Richard Lee Recall on Tom Freel's "Coast Watch" on KAST-AM

2008-03-20T08:24:00.000-07:00

I'm calling in for the first and only time on the issue of Richard Lee's recall, to make a couple points.

First is that despite repeated claims by Mr. Lee and his supporters, neither my wife, Cindy Price, who narrowly lost the race to Mr. Lee by one half a percent of the votes in 2006, nor I have been involved in the Citizens for Open Government. They haven't sought my advice. I haven't attended their meetings. As far as I can tell from reading their website, they are a diverse group of people with many reasons to recall Mr. Lee.

That said, I'm a resident of District 3 and have been for the 14 years I've been District Attorney.

I'm hopeful that Mr. Lee will be recalled. His conduct while a County Commissioner has been grossly inappropriate. I've attended many county commission meetings and in the three years he was chair there was little public discussion and it was obvious that private discussions had already decided many decisions.

There is no question now, based on statements Mr. Lee made to the Daily Astorian, that he was behind the ambush move last May to reduce my pay 15%. He helped appoint and nominated as chair of the budget committee Joe Baakensen, a man who has been trying to get my pay reduced since 1997.

As chair, Mr. Lee had to authorize the hiring of a Portland law firm to try and keep almost 3,000 voters from even being allowed to sign a petition trying to find a way to right the wrong he voted in favor of.

His extended family funded most of the opposition to Measure 4-123 and, not content with that, Mr. Lee took the step of buying large display ads in the Daily Astorian making statements about 4-123 that were simply false. I felt so strongly that I purchased ads to respond although I am not a wealthy man, as is Mr. Lee.

While Mr. Lee was chair I made repeated requests to meet with him and the commission, and never got the courtesy of an response. When I appeared before the commission and asked a simple question -- What do you want from me? -- Lee refused to respond. When one county commissioner tried to ask the county manager, Mr. Lee gaveled him into silence.

Mr. Lee authorized the expenditure of more thousands of taxpayer dollars to hire an attorney, the main purpose of which was to prevent me from speaking to county management or the Board while Measure 4-123 was on the ballot.

Recall is not meant merely for felons, but also for conduct which holds the citizens in contempt. Mr. Lee says he represents the voters of District 3 yet voters in that district (as well as those in Commissioner Roberts' district) voted in FAVOR of Measure 4-123. And, as you yourself have said, Tom, a number of people did not want to amend the charter but did not think the Commissioners had acted properly in removing my stipend.

Mr. Lee has been asked by several community leaders to start trying to heal the divisions and he has flatly refused.

Mr. Lee's conduct involving me and my office is just one of many valid reasons people have to recall Mr. Lee.

He deserves to be recalled.

Thank you for the opportunity to speak.

Words Matter

2008-02-26T11:22:00.000-08:00

In a front-page story in Sunday's Oregonian reporter Susan Goldsmith tells the tale of "innocent" people wrongly charged with driving under the influence or reckless driving who then suffer because they can't have their police records erased.

There are some problems with her story but she’s absolutely right about one thing: Oregon’s system of sealing or not sealing records is a mess.

One of the problems with the story is Ms. Goldsmith’s choice of words. In the law, words matter. Even the smallest words generally have specific definitions. The choice of those words, those specifics, in fact are the basic elements of our written laws. So it’s important first to define and understand the words. I'll start with “expungement”.

Expungement is the complete and indelible destruction of a record so that there is nothing left to be found. All records are deleted or shredded; it is as if the incident never happened. Oregon law allows for expungement of virtually any juvenile record, under the theory that children deserve a clean slate when they become adults.

Adults are subject to different rules, and the rules for traffic violations are different from other crimes.

For crimes other than traffic violations, Oregon law allows for the records of any arrest that did not result in a conviction to be “sealed”, including arrests for rape and murder, after a motion is made to “set aside” the records of the arrest. Sealed records do not appear on any public record available to anyone except law enforcement. If an employer asks, “Have you ever been arrested?” you can legally answer “No.” If you find yourself on the witness stand in a courtroom and are asked the same question, again, you can legally answer “No.”

Oregon law also allows records of convictions for most crimes, including domestic violence, criminally negligent homicide, some burglaries and most drug possession, to be sealed after a motion to set aside made three years after the conviction, so long as the person has not been in additional trouble with the law during that three-year period.

These laws are both good and bad. On the good side, they allow people who were arrested for a crime they truly did not commit to have a clean record; and they allow people who have led a crime-free life for at least three years to go forth with a record clear of misdemeanor and less serious felony convictions.

On the bad side, the laws make no difference between the truly innocent and the truly guilty who the D.A. decided not to prosecute because of some glitch in the arrest process or some other inability to go forward in court. Often enough this is a man who has been arrested for beating up his wife or girlfriend, or sexually abusing her, but the woman is so afraid of him that she won’t testify against him, and without her testimony the man cannot be successfully prosecuted. Or it’s a burglar, embezzler, drug dealer or thug who manages to keep clean for three years in between crimes. Plenty of such people are in courtrooms across Oregon right now. They are legally claiming to the judge and the jury that they have no previous record but, even though they may be only 30 years old, are in court for their fourth separate embezzlement charge.

It could be worse. A man in central Oregon murdered a woman whom he had assaulted a few years previously. At that time he had been convicted of Felony Assault, but three years later his lawyer filed a motion to set aside the conviction. By the time the man murdered the woman, his previous record was sealed. If he had taken the witness stand at the murder trial he could have legally told the judge and the jury that he had never before been convicted of a crime.

Traffic violations, from parking tickets to arrests for driving under the influence, are subject to entirely different laws.

Oregon law doesn’t allow traffic violations or infractions to be set aside and sealed. The main reason is because of the societal interest in keeping track of people who are frequently arrested for -- and not so frequently convicted of -- driving under the influence. It’s a well-known fact that a person may drive under the influence many dozens of times before being stopped and arrested. And many of those who are arrested but not convicted are either veteran drunk drivers who refuse to provide any information to the arresting officer, or the beneficiaries of defense lawyers like Mr. Hingson, who charges over $10,000 to work his magic and persuade a judge to suppress a traffic stop, sparing his client from justice.

The secondary reason traffic violations cannot be sealed is the one stated by Ms. Goldsmith in her article: that traffic violations don’t merit the time it would take to erase all record of their happening. As a practical matter, most traffic violations automatically cycle off your DMV record after three years -- unless you are a very frequent customer.

In any case, arrests for driving under the influence and other traffic violations that do not result in conviction reside only in the Law Enforcement Data System (LEDS), a highly secure database accessible only to law enforcement personnel and only for official use. Official use doesn’t mean that I can use the LEDS to find out whether someone I don’t like has committed a crime. There are only two legitimate uses -- for employment in law enforcement and for record checks by criminal justice agencies of accused criminals -- and law enforcement risks its access to the system if LEDS is used for any other purpose.

In other words, even with all the computer databases currently available, a record for a DUII on the LEDS system is not at all incapable of being deleted or obliterated -- or "indelible," as Ms. Goldsmith writes.

The people in Mrs. Goldsmith's story may indeed be embarrassed or humiliated. But their beef about being “unduly burdened” should be with their employer, not with the legal system. They work or are seeking employment with agencies and businesses that are (perhaps in some cases overly) sensitive to the law, who require their employees to report any and every adverse contact with the law, and who have rules that include immediate dismissal for not reporting or for lying. It’s the prerogative of those businesses to know when an applicant or employee has been “busted”, to use a word in the Oregonian’s headline. ("Busts stick to innocent drivers.") Anyone who has applied for a job in law enforcement or for a position that requires a national security clearance will remember the intrusive questions asked and the requirements of personal behavior one is expected to follow throughout the term of employment. It’s a like-it-or-leave-it decision for the employee.

Meanwhile, it remains true that, as I wrote at the beginning, Oregon’s system of sealing or not sealing arrests is a mess. We need to fix the laws to protect victims not from an embarrassing few minutes at work, but from thugs and thieves who manage to keep their offenses in check just long enough to get their record clean before hurting someone else.

2008-02-14T09:22:00.000-08:00

Let's not squander our moral capital

Thursday, February 14, 2008
The Oregonian

The Bush administration has announced it will seek the death penalty against six of the men being held as detainees for their involvement in terrorism against America.

I have both prosecuted and defended capital cases for more than 15 years, and I am a vocal supporter of the death penalty in appropriate cases. If it is proved that these men masterminded the murder of more than 3,000 people, such a crime would indeed warrant the death penalty. But I'm absolutely opposed to seeking death against these men under the terms of the military tribunals the administration has put forth.

Defending the decision on PBS' "The News Hour," former Associate White House Counsel Brad Berenson explained that for most observers the trials would look almost exactly like one that would be held in one of the 37 states that have capital punishment.

"There's only a 10 percent difference," Berenson claimed.

But in making a decision to execute someone, 10 percent is an unacceptably massive difference.

Under the terms of the tribunals, trials would take place at Guantanamo Bay, Cuba, at a location called Camp Justice. Each case would be decided by a panel of military officers, one of whom will have legal training. The rest will essentially act as jurors. In no way can a panel of U.S. military officers be compared to a jury of the peers of these terrorists. The rules of evidence will be "relaxed," meaning that hearsay evidence will be admissible.

The argument is that national security could be compromised if the source of some of the evidence is revealed. But that's no different from being unable to produce an informant against a Mafia killer because the witness is afraid to testify. In our system of justice, the defendant who faces death gets to confront his accusers, and hearsay is allowed only in very few situations. One of them is not that the witness is a secret agent.

Many of us among the 70 percent of Americans who believe the death penalty is appropriate for the worst of the worst killers would agree that the crimes these men may have committed are indeed worthy of death. We who support the death penalty believe it to be an affirmation of the importance of life. But the devil is in the details -- and that's "due process" in our legal system.

We squander our moral capital if we take a shortcut through Camp Justice to avoid having to prove these cases to the necessary level, and with a quality of proof that would pass muster in a trial for stealing a car. The same rules of evidence apply to the shoplifter and the murderer.

Threatening or applying the death penalty in the manner under consideration by the Bush administration will undermine confidence in the American system of justice at home and abroad. The death penalty has proved to be a deterrent, but we must ensure that every defendant is factually guilty and warrants the ultimate punishment -- even for those who might prefer to be martyred.

It may well be that the government has a valid right to detain combatants in an undeclared war and deny them the same rights as citizens. But that's a far cry from executing them without due process. It may be just to imprison these terrorists for a very long period of time -- perhaps their entire lifetime -- but it would be wrong to execute them without affording them the very cumbersome but necessary rights that the American judicial system affords people it seeks to judge.

Joshua Marquis, district attorney of Clatsop County, is a co-author of "Debating the Death Penalty."

Beijing trip, May 2007

2008-01-23T09:28:00.000-08:00

For ten days in late May and early June, 2007, three American prosecutors were guests of their counterparts in the Chinese legal system in Beijing. I was one of those prosecutors and it revealed to me not only China, but a completely different world view that made “globalization” more than just a buzz word or a curse.

China was formerly referred to as the “Middle Kingdom,” and that symbol is still used in Mandarin ideograms. Ancient Chinese emperors believed that the Temple of Heaven in Beijing was not only the center of their kingdom, but of the entire world. You can actually stand at what they thought was the epicenter of all things.

The Imperial Vault of Heaven, encircled by the Echo Wall. Before the railing was built and the noise of tourists made it impossible, two people could stand at opposite sides of the Wall and whisper to each other.

The culture that invented fireworks and spawned a vast empire while many Europeans were living in caves has evolved into a towering economic powerhouse with a new middle class that numbers about the same as the entire population of the United States.

China's decision to pursue economic freedom has had profound effects on its legal system and its relationship with the rest of the world. I had expected to see a third world country with smatterings of wealth. While that may exist outside Beijing, the city I saw and visited without restriction was very much a first-world mega-city throbbing with commerce and vitality.

In one of the storefronts on a busy market street, I bought at 1 gigabyte MMC card for the camera, for the equivalent of $10.

Hopefully the bicycle culture won't completely disappear.

Chinese prosecutors and judges are working to establish a “rule of law” which bears remarkable semblance to the system we endorse in the United States. Like so many other reforms, economic necessity will likely foster the change. There is enormous foreign investment in China. The nation's leaders understand that investment is unlikely to continue unless investors are assured that their property and rights will be respected. As a result, the highly centralized Chinese legal system is developing cadres of lawyers to provide legal aid, training for prosecutors and increasing autonomy for the judiciary, which still technically reports to China’s prosecutor-general. (Contrast China with Russia which, after the collapse of the Soviet Union, chose a form of political freedom rather than economic freedom. Early investments retreated when laws governing property and investment rights didn't materialize and/or weren't upheld by a poorly-functioning legal system, and early political freedoms are being lost as well.)

Is it the American system? No, but it revealed a different China than I had expected. I met counterparts who had many of the same problems I encountered, although I was envious of the private dining rooms, chefs, and incredible banquets all of our hosts provided in their offices.

Banquet at the Beijing Municipal Prosecutor's office.

The bird is sculpted from a single radish.

And the prosecutors have guards!

Of particular interest to me was the overwhelming Chinese interest in the apparently unheard of process of “plea bargaining.” We explained that if we actually tried all the cases we filed we’d need ten times the number of prosecutors, judges, and so on. The Chinese legal system is just being to be faced with having to make the sort of legal triage that has become all to common for American prosecutors.

I was fortunate to be friends with Honolulu District Attorney Peter Carlisle, who in turn was lucky to have employed the first person born in the People’s Republic of China to become an American prosecutor - Mangmang Brown. Brown helps her husband, Professor Ron Brown of the University of Hawaii, operate the US-Asia Law Institute that has for more than 15 years sponsored exchanges of judges and lawyers between mainland China and the United States. Peter, Hawaii Attorney General Mark Bennett and I were the first state and local-level prosecutors to be formally invited to meet our Chinese counterparts.

Honorable Chairman Honolulu District Attorney Peter Carlisle consults with Hawaii Attorney General Mark Bennett. Note all the bicycles.

Left to right: Hawaii Attorney General Mark Bennett; me; Dr. Zhan, director of Beijing's Institute for Prosecutorial Studies; Honolulu District Attorney Peter Carlisle; Professor Ron Brown, Judy Carlisle, Aspen Carlisle, MangMang Brown holding Gracie Brown.

In China the legal system is centralized so that there are twelve different levels of prosecution ranging from the national down through provinces, municipalities down to the counties (or most local level). The Chinese were fascinated to learn of the extraordinary autonomy of American prosecutors and that we were popularly elected.

China is indeed a world, and 18 time zones, away from the West, but my first surprise was the spotless Beijing International Airport, with Immigrations Agents whose work stations had a small electronic key pad with five universal symbols of “smiley faces” in shades of green to red. The five faces ranged from smiling, to neutral, to a frown. As you completed what was about a 30-second process of presenting your Chinese visa, you were asked to punch in your satisfaction level with the agent’s service.

This is leaving China, but you get the, er, picture.

I had been told to expect someone holding a sign with my name on to be standing in front of the “KFC”. The KFC? Yes, the Kentucky Fried Chicken! It's wildly popular in China, as are McDonald’s and Starbuck's who even have stores inside The Forbidden City.

But the incursions of Americana do not take way from the fact that you entering an ancient culture.

Preparing to serve famous Peking duck -- while avoiding avian flu?

Acrobats.

Our first day was a 40-minute trip down a freeway jammed with Buicks and Volkswagens made in China. The highway passes from the Beijing mega-city through rice fields and ends up at one of the recently acknowledged Wonders of the World -- The Great Wall. It is, well . . . great. Built over a thousand years ago to defend the Middle Kingdom, much of it remains intact, snaking improbably for hundreds of miles up and down hills and valleys.

There were two more days to explore Beijing, most significantly the Forbidden City, the home of many Chinese emperors. Italian filmmaker Bernardo Bertolucci was given permission to film on location the story of Pu-Yi, the last emperor of China, who lived from 1906 to 1967. His film “The Last Emperor” won Best Picture in 1987. We learned that Queen Elizabeth visited Beijing but was unable to visit the Forbidden City because of the filming. It stands as a remarkable story of China’s journey into today’s world and I strongly recommend watching the movie either in its original theatrical or longer DVD release formats.

Calling my wife from the Forbidden City.

All the interesting signs are slated to be replaced before the Summer Olympics this year.

The working part of our trip was a dizzying series of meetings with Dr. Ye Fen, our host and the Vice President of the International Association of Prosecutors, as well as a judge of China’s Supreme People’s Court, the Chief prosecutor in the high-tech Haidian District of Beijing to Dr. Zhen Zhen, the Deputy Chief Prosecutor of Beijing. Many of our meetings were covered by Chinese TV crews and while all our hosts spoke remarkably good English (as opposed to my three words of Mandarin), we were assigned two young women prosecutors from the SPP (Supreme People’s Procuratorate). They served as our guides and translators and also helped us in our shopping expeditions.

Our guide, Ms. Li, of the Prosecutor General's Office

Supreme People's Court, ruled this day by Gracie Brown.

I had purchased a suitcase full of Josephson’s smoked fish (tuna, salmon, and sturgeon) as examples of local commerce on Oregon’s north coast and figured I could use the suitcase when emptied for return gifts for friends and co-workers. In addition to the exquisite official gifts, my favorite being the mythical lion/dragon beast that symbolizes prosecutors, I ended up buying so many local handicrafts that I had to buy another suitcase - a suspiciously low-priced Samsonite - which I jammed with Mao hats, Chinese army watches and a few pearls bought at amazingly low prices.

Outbound treats from Josephson's.

Some of the inbound treats.

What I came to realize (once again) is that we are all much more alike than we are different, and that in a world where I could check in with my office from the Forbidden City or withdraw 700 Yuan from an ATM at the Temple of Heaven, globalization is not necessarily a dirty word.

We do, in fact live in very interesting times, and there is much to be hopeful about.

Power to the people!
(taken at the Military Museum)

Things to be grateful for

2008-01-01T14:54:00.000-08:00

2007 has been a tough year for many of the people in Clatsop County, a number of whom suffered disastrous losses in the Advent Day(s) Hurricane, but even amidst chaos there are always things to be grateful for.

Having just returned from southern California to visit my mother and sister, I am particularly grateful to live in a place where there is no two-hour drive to go 20 miles on a freeway, where there is clean air, and when you are descending into Portland by air what strikes you first -- no matter where in the world you are returning from -- is how GREEN it is!

I am grateful for the best co-workers possible, in the Clatsop County District Attorney's Office. They labor long and mostly unacknowledged, dealing with people at the worst times of their lives. They do it with grace and respect, and maintain an incredibly positive work environment -- particularly remarkable given that until a couple months ago they were in near-impossible work spaces.

ALEX PAJUNAS —The Daily Astorian A bumper sticker sits on the back of District Attorney Josh Marquis’ office computer Nov. 30 as finishing touches on the room and the move-in were completed. read the Daily A story

It's been hard work that has resulted in the successful resolution of a number of criminal trials this year. Most recently, several child molesters were convicted; and ,less spectacularly but no less important, a relatively new staff of lawyers has been pounding away at drunk drivers and wife beaters.

I'm grateful that Clatsop County's got a great group of judges and a terrific law enforcement team, headed up by Oregon's best Sheriff, Tom Bergin.

I'm particularly grateful for people like Beth Roland, a local woman who trains and raises horses and was the chief rescuer of nine badly-neglected horses seized from Seaside businessman William Maxwell's "farm" in 2006. I've tried well over 300 jury trials in my twenty-five years as a lawyer but I can count on one hand the number of times what happened after the three days of Maxwell's jury trial. The defendant's lawyer came to me just after I rested the state's case (when it would normally be the time for the defense to put on a case), and the Portland-based defense attorney asked whether his client could still plead guilty. Before the trial began he'd been offered a particularly good deal to save the time, money, and uncertainty that can come with a week-long Animal Neglect case, but that deal had been taken off the table when it was first rejected. Now the defendant pled guilty - not "no contest" -- and will be sentenced January 25 in front of Judge Nelson in Courtroom 200 at the Courthouse.

I'm grateful for the best legislator in Oregon, Senator Betsy Johnson, who, if there is any justice in the world, will be Governor in 2011.

I'm grateful for the many kind strangers who took time this Christmas to send me a card thanking me for my work and asking me not to quit. I've been really struck by the people who still come up to me on the street, at the store or the post office, put an arm on my shoulder,look me in the eye and tell me "Hang in there, we're with you."

I cannot go without thanking the dozens of volunteers who persuaded more than 6,000 Clatsop County voters to support Measure 4-123. The Measure lost by 70-plus votes, thanks to the incredible hard work and dedication of the most energetic and diverse group of activists I've ever met!

I'm particularly grateful to the world's best editor and webmaster, and tremendous supporter of public radio in Clatsop County: my best friend and wife, Cindy Price (without whom this post would not be possible.)

Cheers to all for the New Year. As the comedian Chris Rock says: "Obey the law!"

Guest column: DA shares his view on ballot isssue

2007-10-25T16:43:00.000-07:00

By Josh Marquis
For The Daily Astorian
Thursday, October 25, 2007

With Measure 4-123 you have the chance to cast a vote that will send a message about the importance of the independence of your elected district attorney.

In any community, perhaps particularly in a small one like ours, it's not unusual for prominent and influential citizens or their friends and families to become either the victim of a crime or the suspect in a crime. And we all know that it hasn't been so many years since many in the county felt that if you just knew the right person in the DA's office, a criminal case could be made to disappear.

The pervasiveness of that sort of thinking, whether it's really true or not, creates enormous distrust. Citizens may feel that the very fabric of a fair system of justice, in which everyone is equal before the law, is made of whole cloth. That was the environment when I was appointed district attorney in 1994.

It took a few years and the will and resources of previous county commissions to rebuild the office of the district attorney. My philosophy and policies of aggressive advocacy tempered with fairness have restored community confidence in the office and have instilled self-confidence and increased professionalism in the now 18 men and women who work for me.

Some of the decisions the district attorney's office makes are not particularly popular. We don't seek to be popular. Nor do we seek to be feared. We seek to be respected, and I think we are succeeding. Victims report great satisfaction with the way the district attorney's office represents their interests. We enjoy good working relationships with the police agencies, the judges and the many nonprofit agencies that provide support to law enforcement and victims.

Yet this is not enough for most of our current county commissioners. After several failed attempts to convince me to change my well-working philosophy and practices of conducting the work of the district attorney's office, they did the one thing they can do with alacrity: eliminate the supplementary pay the county has provided for the past 12 years - 15 percent of my annual salary. With no good reason. And no notice whatsoever.

I was hit square upside the head on May 14, when the majority of the commission voted to eliminate - immediately upon formal adoption of the budget the next month - my $13,900 annual supplement.

The county has supplemented my state salary for the past 12 years because I am a county department head, with all the duties of every other county department head. Thirty to 40 percent of my time is spent hiring, training and supervising the six lawyers and 11 support staff in my office, and managing the department's budget of $1.3 million of your county tax dollars - frugally and creatively, returning tens of thousands of dollars to the general fund each year.

The commissioners say they have no idea what I do or what my office does, despite very detailed annual budget presentations and a $10,000 workload study that they commissioned last year.

Ironically, while they say they have no idea what I do, they've asked me to file more cases, particularly felonies, because the state provides money to the county probation department when people are convicted of felonies and receive a sentence of probation.

The commissioners don't want a fair and impartial system of justice. They want a revenue stream.

I refuse.

Their response? Personal attacks on me and my family. Using your tax dollars to fight an enormously popular ballot initiative. Lying in the paper, at meetings and in glossy mailers.

You are probably sick and tired of this fighting. So am I. Since April I've invited them to come to the courthouse any day, or to meet with me in any forum they prefer. They refuse. They've even hired a Portland law firm, again using your tax dollars, to represent them so that I cannot even approach them at a public county commission meeting.

The only resolution these commissioners are interested in is one that forces me to resign my principles or to simply go away.

The message sent by your "yes" vote on Measure 4-123 is this: The office of the district attorney of Clatsop County provides a tremendous service to the county, and it is the elected district attorney who should make the decisions about how the office operates.

I thank you for your support over the years.

Josh Marquis has been Clatsop County DA since 1994, when he was appointed by Gov. Barbara Roberts. He was elected later that year in a contested election by a 3-to-1 margin and was re-elected in 1998, 2002 and 2006.

Q&A

2007-10-17T09:12:00.000-07:00

Over the last few days I've been asked a number of questions by some of our local media. Here are their questions and my answers.

1. Does your office have access to a management software program that can generate data on the workload in your office?

The DACMS (District Attorney's Case Management System) contains the raw data from which questions can be asked and answered. The most important starting point is, "What do you want to know?" There is no one in my office with the capability of managing such software but I think the DACMS system could be programmed by an IT person to generate any number of reports. In many counties the IT department devotes an entire programmer to the DA's office because of the unique requirements of that office. Otherwise, the workload of my office is most easily measured by examining court data, although that does not include the many cases we screen out.

2. If you have this software available why not just give those workload measurements to the county?

As noted above, the software is available but is not currently configured to provide the measurements the county has requested.

However, the workload measurements were given to the county in the 2006 LGPI (Local Government Personnel Insitute) report. LGPI was selected by County Manager Scott Derickson, commissioned by Mr. Derickson and reported back to Mr. Derickson. LGPI used data that can actually be compared from one county to another -- usually data from the OJIN (Oregon Justice Information Network). Much of this data is very easily accessed. You can find a link to the LGPI workload study and its executive summary here.

Neither the Commissioners nor Mr. Derickson have ever told me what they want measured, despite a number of written requests -- better to say pleas -- from me. Do they want conviction rates? Do they want number of cases declined? Much of this information could be generated, albeit at some time and expense mainly to staff. But before we start generating any reports we have to know what they want. The DA's office is a very lean operation, with every single employee directly providing prosecution services. Ask the LGPI consultant, Diana Moffat, who prepared the study.

3. If you don’t have software of this type, does someone keep track of how many hours your lawyers put in?

No. Unlike law firms that bill by the hour, no DA's office that I know of keeps hourly billing. It is extremely time intensive. It makes a lot of sense when you are billing a client $2,405.00 and need to justify that bill, but it is meaningless in the public sector context. This is precisely where I, as the department head, spend time managing my staff, making sure they are indeed putting in the necessary time on the necessary duties. I am quite confident that the taxpayers are getting at least 50 hours a week from most if not all of my lawyers, and that those lawyers are working for the public during all of those hours.

There is a reason most counties pay supplements averaging $19,000 a year to their elected DAs: They are getting a darned good bargain for a county department head.

4. On plea bargaining: Who, besides Commissioner Ann Samuelson, has seriously suggested you not accept a felony conversion to a misdemeanor. You said you are feeling pressured to do so.

Besides a County Commissioner? Cora Lane, the Director of Community Corrections, has told me point blank that she wants more felonies simply because that is how she is funded.

Mr. Derickson and Central Services director Mike Robison attempted to glean what "percentage of plea bargains" were listed in the DACMS when they churned out their April 2007 report in an attempt to repudiate the April 2006 LGPI workload study. My question is: Why does the county manager want to know the rate of plea bargains?

5. Did you have a direct hand in writing measure 4-123? Did you advise the committee who has brought it forward for a vote?

I advised Commissioner Sam Patrick after he contacted me about his idea of a charter amendment setting the DA's pay. I talked about the need for any such effort to be separate from me and my control. Commissioner Patrick and Don Haskell asked me what sort of standard might best be used to determine a DA's salary. I told them that the Oregon DA's Association has been lobbying the legislature for years to peg DA salaries to that of circuit court judges, a common practice in many states (Texas being one that immediately comes to mind).

I have never said I had "nothing to do" with the formation of this committee. I said I was not the originator of it or its generating force. You would have to believe that people like Don Haskell, Sky Olsen and Larry Taylor would allow themselves to be manipulated to believe that my hand is behind all this. I was in China when most of the work putting the committee got started (as evidenced by the June 4 e-mail which was in fact sent from Beijing International Airport).

I have attended some of the committee's meetings and answered questions much like I am doing right now.

6. Did someone within the leadership of the state DA association have a hand in this?

No. Other DA's have been very supportive and written letters but no other DA has been involved in any way to my knowledge.

7. Does measure 4-123 have the potential to justify a statewide measure if it is successful?

Measure 4-123 has started the first-ever statewide conversation about DA pay, as evidenced by editorials in the Oregonian on August 1 and the Eugene Register-Guard shortly thereafter. Many DAs do not want the supplement issue messed with, most having good relationships with their County Commissions. Measure 4-123, if passed, will prompt the legislature to examine DA pay and finally do something about it.
By contrast, the act of cutting my supplement is of no interest any more than it was when it happened in Coos, Polk, or Hood River counties years ago.

8. Did you force this situation to further the goals of the DA association in linking DA pay to Circuit Court Judge pay? Are you the guinea pig?

Absolutely not. This situation is very uncomfortable for me with my colleagues, most of whom are treated well by their county governments. This has been sheer torture if evidenced by nothing more than my weight loss of almost 30 pounds over the past year, which I wish I could attribute to good health and exercise but is nothing more than sheer stress.

9. Why did we need a third circuit court judge in the first place?

Judge Phil Nelson and Judge Paula Brownhill two incredibly hard-working judges, have been lobbying for another judge for nearly 10 years. (Judge Brownhill started the lobbying hard with the Gleaves Commission.) Columbia County, with a similar population but much lower case filings, has had three judges for some time; and Tillamook, with about half our filings, has had two judges and a justice of the peace.

Bottom line is that the two judges were working 60+ hour weeks; the dockets were so packed that all lawyers -- prosecutors, criminal and civil -- were complaining; and citizens (victims, accused, and civil clients) were not getting a reasonably speedy timely resolution of cases.

Although I knew it would mean nothing more than more work -- probably with little or no funding -- I actively supported the third judge. At one point I was the only local attorney who went with Judge Brownhill to Salem to pitch the case. Sen. Betsy Johnson sealed the deal in the 2003 legislature when that body approved the creation of four new judgeships, one each for Clatsop, Umatilla, Clackamas and Jackson counties.

It's not hard to see the reason. Just go to the state court website for cases file for the last five years and you'll see that Clatsop has much more than its share - probably because of tourists and other transients (in the legal, not pejorative sense).

10. What impact has that third judge had on your office, and why do you need two more staff because of the third judge?

Pretty simple. Our workload is determined by two ends of the giant justice/sausage machine: crimes committed and people arrested at one end; and, at the other end, the court appearances (not just trials but arraignments, probation violations, motions, and on and on) at which the DA is required to appear.

Going from two judges handling criminal cases to three is very basic: It is at least a 30 percent and as much as a 50 percent increase in required court appearances for our prosecutors. Determining and confirming this was the whole reason for the LGPI study, selected and commissioned by County Manager Scott Derickson.

11. How many days do you and your staff spend in court?

Every single weekday the courts are open. On rare occasions the judges may have a civil trial or a reduced docket but virtually all the lawyers are in one of the three courtrooms every day. Plus, we have Grand Jury twice a week, which is for all purposes a "fourth" courtroom.

It is an extremely rare day that I do not personally appear in court. I have personally tried three jury trials in the last eight weeks and I deliberately do the daily in-custody arraignments. It's a good management practice because it's a way of guaging what is being filed and making an intelligent release recommendation to the judge, particularly now that there is no Release Officer. I can't simply ask the court to keep everyone locked up. I have to keep my eye on the jail population and matrix, which I take with me every day to arraignments.

12. How many days are there attorneys from your office (you or your deputies) in all three courtrooms?

As I have told Commissioner Pat Roberts many times: Almost every day one or more of my deputies are in all three courtrooms at different times during the day. We generate daily dockets that verify this.

13. How many hours do you or your office spend on civil commitments in a year?

I agreed to start doing civil commitments -- which had been "piece worked" out to County Counsel, apparently on an hourly basis -- in exchange for the Commissioners not giving me too much grief when I went from four to five Deputy DAs. I think that was about eight or nine years ago. We do not keep track of the hours we spend on them. The $10,000 figure that I stated at a County Commission meeting a few months ago is what county management told me they were spending back in 1998 or whenever. I'm sure it would be much more now.

Civil commitments tend to come in bursts. I usually personally handle them only because it requires some specialized knowledge about "AMI law" (referring to an Alleged Mentally Ill person.) I'd guess we do about 25 a year and they take about two to four hours each just in courtroom time. We never know about them until 24 hours before court, so we have to crash prepare for them. The courts just jam them in anywhere they can on their busy dockets -- another reason I personally take them because my deputies are already over-committed to their own court appearances.

Keep in mind we do a number of things that other county departments used to do:

(a) We manage the Medical Examiner program, at the request of Dr. Joann Stefanelli who was unhappy being managed out of the Health Department, which did virtually nothing, provided her nothing and charged the county $6,000 a year for "administering" the program. We provide Joann a car, a desk, phone, mailbox and private office and we charge the county nothing.

(b) We handle forfeitures, which are usually tied to drug cases. This is when the county, usually the Sheriff, is trying to seize what is almost certainly drug money. Normally this is a civil matter. The number of forfeitures have declined but we provide legal advice and court appearances for free.

(c) We handle Writs of Habeas Corpus -- suits filed against the Sheriff by an inmate for any number of reasons. These are fairly complicated civil cases. They are not common but require very specialized legal knowledge. My Chief Deputy, Ron Brown, is very well-versed in the law and we handle the cases -- again, for nothing.

(d) We appear at Juvenile Dependency cases -- not Delinquency cases, which we also do but those are kid crimes. Many DA's, citing time and budget constraints, do not provide Deputy DAs for these hearings which are very complicated and drawn out. Judge Brownhill handles these cases and considers them a very high priority. The legislature considers them important as well and has authorized several million dollars so assistant attorney generals can make some of these appearances.

(e) We provide training for local police agencies, almost always outside office hours and on weekends. The lawyers (and I) who do this don't get time off or pay for this. We consider this an important obligation to keep the seven police agencies in Clatsop County up to date on the ever-changing criminal law.

(f) By state law the DA is the Public Records arbiter for any requests of agencies below state government. I have to render a legal decision when a citizen of the press demands documents and the governmental agency declines to turn them over. Not a lot, but maybe a dozen a year.

Now here are some questions from me:

1. How do you think the DA's office is performing? Are we bungling cases? Do the police agencies feel well-served by us? The Sheriff's Department? The Oregon State Police? What about other community partners like the Women's Resource Center, DHS, the Juvenile Department and CASA? Ask them.

2. What do exit interviews from staff leaving the DA's office show? Are there grievances or complaints?

3. Has the DA's office generated any lawsuits the county has had to defend?

4. Is the DA's office winning important cases?

5. Do citizens feel the DA's office is accessible to them and can they reach the DA when they need to?

6. Do victims feel as if they have been served?

What a County!

2007-08-15T09:09:00.000-07:00

I just want to say how just really impressed and grateful I am for the people in this community. Last week a grassroots group of people worked over 2-1/2 days and gathered over 2800 signatures. When at least 1195 are certified to be valid, the Independent DA initiative will be on the November ballot.

I am just in awe of what these folks did. These are Democrats and Republicans, conservatives and liberals, people from Knappa and Cannon Beach and Astoria. They went out in the rain. I frankly didn't think it was possible to do it in the short of amount of time they had.

The Independent DA initiative is not all about me. It's about the office of the District Attorney, and I think it will lead to some very positive discussions and positive outcomes for my office long after I'm no longer District Attorney.

Thank You For The Support

2007-08-05T10:33:00.000-07:00

There is a lot of controversy going on after what I consider some cheap shots at me and my office. I try to be a straight-talker and here I’ll try to be a straight-writer.

I've now served as Clatsop County's DA for going on 14 years. I was just re-elected to a fourth term and I have never had the kind of response that I have experienced in the last couple months. No matter where I am -- in the market, the dry cleaners, the post office, a restaurant or just on the street -- a citizen, often one who has never met me, will touch me on the shoulder and say, "Hang in there, Josh. We're with you." I am humbled by this incredible support.

I deal in a business that is conflict-rich and I get all the conflict I need in the courtroom. It benefits neither me, my staff, nor county government to be embroiled in constant dispute. But some things are worth fighting for. The independence of the office of District Attorney is worth it.

Amending the Charter was not my idea. I’m not sure who first thought of it but the idea caught fire with a lot of people. I’m not a member of the committee that is working to get the proposed amendment onto the November ballot, although various of its members have sought my counsel about exactly how the county budget process works and how I have been involved in it.

As you might expect, I enthusiastically support the efforts of the Committee. I won’t be DA forever, but I will be for the at least the next three-and-a-half years. I’ve worked the legislature trying to get more state funding for fair pay for elected DAs and to help the counties fund prosecutors’ offices. We’ve had some success, but not much. Maybe this grass-roots movement will help convince the legislature that ensuring their county is represented by an independent District Atttorney, one who is not subject to personal and political pressure, is an important issue, and one to which it should respond.

Many people have asked me how they can help. The Committee will have only two-and-a-half days to collect at least 1200 signatures, starting about noon on Monday. Several of them have taken days off from work. They need your help. Here is some contact information. Call or write now:

IndependentDA@gmail.com
Larry Taylor, President -- 971-235-7164 -- lawrence_d_taylor@yahoo.com
Sky Olsen, Treasurer -- 791-4973 -- sky_olsen@charter.net

Additional local contacts are given on the Committee’s website at http://www.independentda.com/waystohelp.html.

Their site also includes a comprehensive archive of news articles and editorials, and answers a long list of Frequently Asked Questions.

The issue is simple -- Should the DA's salary be free from local political whims? -- and I hope that the last-minute, vexatious attempts to delay a November vote will not prevail.

I’ve run a fiscally-sound county department for more than a dozen years. This year, as before, I came in under budget (about $55,000 this year). Every year I meet all the requirements and deadlines embedded in a long and elaborate County budget process. I’m an elected official accountable really only to the voters of Clatsop County, but I’m dependent on the County Commission to fund virtually all the DA’s office. This sets up a natural tension that results, among other things, in my budget discussions with and presentations to the County generally being more detailed than any other office.

Some claim that I don’t cooperate with the process or that I don’t supply performance measures. The record speaks for itself.

I submitted performance measures to the County Manager in late January and never heard any complaint from his office or any of the County Commissioners. The only issue on the table was whether the County would provide stable, long-term funding for the two additional personnel -- one lawyer and one trial assistant -- the County had allowed me to hire beginning in December 2006, to help service the workload that would come with the new, full-time, third judge who would be starting in January 2007. It’s not so easy to hire people, particularly lawyers, when you have to tell them that the position may be good only for the next six months. And it’s tough on everyone -- the office staff, the judges, the victims of crimes -- when you can barely get a new lawyer trained before she or he is out the door.

I invited both Jeff Hazen and Ann Samuelson, as new commissioners, to my office four days before the Budget Hearing to discuss that issue in particular and to see whether they had any other concerns about my budget. They made no promises about funding the positions and expressed no additional concerns.

I was therefore completely speechless -- rare for me -- when Jeff Hazen made his surprise, philosophically-based proposal to remove the County’s supplement to my own income -- a 16 percent pay cut -- and when it was seconded and approved.

It seems this fundamental unfairness is what has motivated the Committee and its many volunteers.

I thank them, I thank you, for your support and kind words. (See also editorials in the Oregonian and the Register-Guard.)

You can be sure I will continue to passionately advocate for I believe is true and just.

You Win Some, You Lose Some

2007-08-05T10:26:00.001-07:00

Every summer the National District Attorney’s Association (NDAA) holds a week-long conference during which elected and deputy prosecutors from around the country commune with each other and have much-needed fellowship.

I was born in southern California but I’m proud of Oregon where I’ve lived 44 of my 54 years, and particularly of Astoria, and had been wanting to bring the conference here, or as close to here as has great conference facilities for 300 people and their families. I’ve been pitching Portland and specifically the Portland Downtown Hilton -- it’s a good union hotel -- so first I found that it was available during the already-scheduled conference time and suggested they make a proposal, and for the first time in 57 years of meetings the NDAA met in Oregon.

On Saturday night the Oregon DA’s Association (ODAA; they have no website) hosted a welcome reception at the Red Star Tavern in downtown Portland, with the festivities punctuated by delightful welcomes from the current ODAA President, John Foote (Clackamas), long-time Multnomah County DA and the dean of Oregon prosecutors Mike Schrunk, and State Senator Betsy Johnson, who co-sponsored the event. Betsy fondly calls me “the DA from Hell.”

A couple years ago I decided to run for President of the NDAA, having served three years as a vice president (there are several vice presidents and you do not automatically move up in the ranks). There was another contender, State’s Attorney Joe Cassilly of Harford County, Maryland.

Joe served as Treasurer during a rough patch for our organization, and oversight of the organization was his campaign theme. I promised to continue to speak out on behalf of America’s prosecutors, continuing to educate the public about the reality of the justice system and knocking down the myths created by popular culture.

At the election last Sunday I lost -- or more appropriately, Joe Cassilly won.

People how ask why I lost. Because Joe got more votes.

How many? Don’t know. It’s secret.

What could I have done differently? I’d have gotten more votes.

We are all friends with our brother and sister prosecutors at NDAA. I remain on the Board of Directors and will continue to serve as Chair of our Media and Communications Committee.

Take local politics out of paying DA's

2007-08-01T10:02:00.000-07:00

Oregon should set full salaries for district attorneys, as it does for judges, and the state, not counties, should pay them.

Wednesday, August 01, 2007
The Oregonian

I t always was just a matter of time before outspoken and aggressive Clatsop County District Attorney Josh Marquis rubbed other local elected officials the wrong way.

Last month, for reasons no one seems willing or able to fully explain, Clatsop County commissioners voted 4-1 to eliminate the county's share of Marquis' salary, abruptly docking the DA of 15 percent of his pay, or $13,500 a year. Marquis' $79,000 annual salary is now less than his chief deputy's.

Marquis says the commissioners lopped off his county supplement as political payback after his wife, Cindy Price, ran against Commissioner Richard Lee in the past election. The four commissioners who slashed Marquis' salary (Lee voted no) offered various justifications, but it's clear they have personal and political differences with Marquis.

You'd like to think the top law enforcement officer in every Oregon county would have some protection from petty politics. But Oregon is operating with an archaic system that supposes a combination of state and local pay for district attorneys. The state pays a base salary of $94,332 for DAs in the nine counties of more than 100,000 people, and $79,512 for the DAs in the 27 less-populated counties. Most of the counties provide pay supplements, ranging from a few thousand dollars a year to up to $47,000 a year in Multnomah County.

There's a problem here that goes beyond Marquis' dust-up with the Clatsop commissioners. Many of Oregon's smaller, poorer counties, especially those that temporarily lost their federal timber payments, have cut their DA pay supplements. That's led to a growing number of inequities in district attorney pay. As The Oregonian's Lori Tobias reported, because Coos County DA Paul Burgett does not get a supplement, he makes about $17,000 a year less than the Crook County district attorney, even though Burgett oversees law enforcement in a county with nearly three times the population of Crook County.

That's not fair. More important, the county supplements have the effect of turning district attorneys into county supplicants -- more vulnerable than they should be to the political whims and wishes of the other local officials who have a say over their salaries.

The next Legislature ought to set equitable district attorney salaries around the state, and it should fully fund them, eliminating all county supplements. That's the way Oregon pays its judges. It's not a perfect system -- Oregon's judicial salaries themselves are too low, and county commissioners could still play politics with the office budgets of district attorneys.

But it would be better than the current system, which has led not just to the spectacle in Clatsop County, but to glaring inequities in district attorney pay across the state.

Good-Bye to Three Good Employees

2007-07-22T20:44:00.000-07:00

The Clatsop District Attorney's Office will soon lose a total of 25 years of experience when three valued employees leave the District Attorney's Office over the next month. District Attorney Josh Marquis explained that Peggy Tomlin, a senior trial assistant who had worked for the Office for almost 11 years, is taking a much-deserved retirement on July 20. "We're going to miss Peggy very much," Marquis said. "She came to us with lots of experience in the Portland D.A.'s office and is the first person to ever retire from the Clatsop County D.A.'s office."

Also departing in August are Senior Deputy District Attorney Mark Lang and Deputy District Attorney Sharon Waldman.

Lang has been with the D.A.'s office for more than nine years and leaves as the senior deputy district attorney having specialized in cases of elder abuse, vehicular assault and embezzlement cases. "Mark's leaving is a real loss to the community," Marquis said. Lang will become Executive Director of the Western Sierra Medical Clinic in Downieville, in California's Gold Rush Country in the Sierras, where Lang's family lives.

Sharon Waldman has been a prosecutor for five years, having first worked as a judicial clerk for Judge Paula Brownhill. Waldman specialized in fish-and-game cases as well as a wide variety of crimes. Waldman will be entering private practice in Astoria with attorney Glenn Faber (who served as Clatsop County's chief deputy D.A. during the late 1980s). Waldman will be handling child custody, wills, divorce and real estate law in her new practice. Marquis said that "Waldman had done tremendous work as a Deputy D.A. and will do very well for her future clients."

Marquis said that while it is unusual for so many dedicated employees to leave during a short time period, for each of them opportunities arose which made their choices right for them at this time. "We are very lucky to have an incredibly dedicated staff of prosecutors, trial assistants, and victims' assistants," Marquis said. "On top of doing twice as much work as similar offices according to a county study last year, the men and women of the District Attorney's Office maintain a great team spirit even as they moved into greatly reduced office space to save costs on the remodeling of the courthouse."

The District Attorney's Office worked through its two-day move but is now open to the public on the main floor of the courthouse, in what was formerly the Clerk and Elections' Office.

Marquis said they were already screening applicants to fill the vacancy left by Peggy Tomlin and will be seeking applications for the two deputy prosecutor positions, which constitute a third of the lawyer staff in the office.

Marquis said that the County Commission's decision to cut the D.A.'s staff first of all county functions if there's a future budget crunch would present some challenges in hiring new staff. "We never run out of customers and never advertise for more work. Our goal is to make Clatsop County a safe and decent place for all its citizens."

For more information call Josh Marquis at 503-338-3614.

Citizens Act

2007-07-10T09:02:00.001-07:00

A genuine grass roots coalition including the Chairs of the County Democratic and Republican Committees, along with former County Commission Vice Chair Don Haskell, gunsmith Sky Olsen, Steve Phillips and Myrna Patrick have formed the Committee to Retain the Independence of the Office of the District Attorney. Their intent is to amend the County's Home Rule Charter and provide a long-term fix to provide responsible and stable funding for the office of the District Attorney.

I obviously support the Committee, and not just because it addresses my personal situation. Much more importantly, their proposal gets at the core issue: Is the constitutional office of the District Attorney independent or can the DA be punished by the County Commissioners for his or her independence.

Since the Commissioners abruptly eliminated the supplemental salary they had provided over the previous 13 years of my service, thereby cutting my salary by 16 percent, many people have come up to me in stores, on the street, and called me and asked, What can I do?If you are so inclined, contact the Committee at independentda@gmail.com.

Their website is www.independentda.com.

Voices of Support

2007-06-15T11:58:00.000-07:00

Thanks very much to everyone who wrote and called, and especially to the people who took time out of their day to attend the meeting. The Commissioners have put off a decision until their final meeting of the budget year on June 27th.

Here's Cassandra Profita's report of the meeting, published in the Daily A. It's a good report but unfortunately couldn't include the many eloquent and moving comments.

Marquis receives voices of support
Clatsop County residents sound off for reinstating stipend for DA;
board still has time to change budget
By CASSANDRA PROFITA
The Daily Astorian
June 14, 2007

Clatsop County residents rallied in support of District Attorney Josh Marquis at the county commission budget hearing Wednesday.

About 50 people crowded into the Judge Guy Boyington building to sound off on last month's budget committee decision to cut Marquis' $13,900 stipend from the county's 2007-08 budget.

The list of people who asked the commission to return the stipend before approving the budget included former county commissioners, current county employees and concerned citizens. State Sen. Betsy Johnson and state Reps. Deborah Boone and Brad Witt have written letters to commissioners asking them to reconsider.

Three people, including former defense attorney and municipal judge Nicholas Zafiratos, voiced support for the budget committee's decision at the hearing.

When the public comment session at Wednesday's hearing was through, Commissioner Sam Patrick made a motion to reinstate the stipend and - despite applause from the audience - found no support from his fellow commissioners. His motion died for lack of a second.

However, Wednesday's meeting was not the last chance for the board to make changes to the budget.

Pat Roberts was the only commissioner who said she would consider the matter between now and the next meeting June 27, when the board will vote to approve the entire $60 million spending package.

Those pushing for the stipend to be restored told commissioners that cutting the district attorney's pay would make the county less competitive, put public safety in jeopardy and malign a department head who goes beyond the call of duty. The decision was "abrupt" and appeared "mean-spirited," they said. And some argued that in addition to straining an already adversarial relationship between county leaders and Marquis, the move wouldn't go far toward pressuring the state into paying higher salaries to district attorneys.

In May, a budget committee made up of commissioners and citizen members voted 7-2 to cut the county's discretionary stipend from the budget, reducing Marquis' total pay to the $79,512 salary he receives from the state. Commissioner Jeff Hazen initiated the vote to make the cut and found support from citizen committee members and commissioners Ann Samuelson and Roberts. Commissioners Patrick and Richard Lee voted no.

The hearing came after months of disagreement between Marquis and county leaders over the budget for the district attorney's office. Over the course of several months as the county budget process progressed the funding for two new deputy district attorneys was in the spotlight and raised questions of how much work the DA's office actually does. Confusion over what kind of performance measures were available and necessary aggravated what some commissioners have called an adversarial relationship between Marquis and the county.

Tensions rose so high between County Manager Scott Derickson and Marquis that at one point Commissioner Hazen intervened via e-mail and told Marquis to stop his "tyrannical attacks." At one point, county leaders were considering the need for a professional mediator to improve communications with Marquis.

At the hearing, Hazen said he did not see the need for a mediator, but he wanted to set up a work session with Marquis to build a better relationship.

Some residents criticized the surprise factor of the committee's decision and told commissioners their process was wrong and their explanation didn't add up, while supporters said the board had the right to do what it did.

Burr Allegaert, a former county budget committee member, told commissioners they could have reduced the stipend gradually if they believed, on principle, the county shouldn't supplement a state employee's salary. That would have given them time to start negotiating with the state to pay Marquis more. Instead, they decided to "lop it off altogether" in an "unfair procedure" that was "not in the purview of the committee and "was sprung almost as an afterthought."

"As a citizen, I want my county government to be public, above board," said Astoria resident Roger Rocka. "There's something about the process by which the stipend was removed that bothers me. If the reasons stated for cutting the stipend are true, they defy logic and common sense."

Zafiratos said in the budget committee's decision had "nothing to do" with whether Marquis is a good attorney.

"Technically, in court he's good," he said. "It comes down to you have the authority and the duty to do what you did. ... I commend your action and hope you keep doing the right thing."

Three former county commissioners weighed in on the issue, one of whom, Bob Green, who lives in Seaside, gave measured support for the committee's decision. The county was in a tight budget situation, said Green, and Marquis acted "childish" after his stipend was cut.

"Josh has diverted valuable staff and commissioners' time so he can play his ego game," said Green. He gets "a failing grade" for the way he has dealt with the commission, he said, though he does better in the courtroom and the commission should lobby the state legislature to increase salaries to district attorneys.

Former county commissioner Tim Gannaway said he "was never a rubber stamp for Josh Marquis" when he sat on the board, but he still asked the commissioners to reconsider.

"I don't see how cutting the stipend would motivate the state to increase funding for district attorneys," he said. The cut in pay was more likely to make Marquis less cooperative and more contentious, and because he's an elected official, the county manager "can't just fire him," Gannaway said. "We could do worse than Josh, and in the past we have."

Former county commissioner Tom Carmichael, who was in town visiting from Arizona, said keeping the stipend keeps the county competitive.

"I haven't always gotten along with Josh Marquis, but he's done his best for Clatsop County," said Carmichael. "If you're going to keep a good district attorney - and I believe Josh Marquis is a good district attorney - you've got to be competitive."

In other business, the board voted 3-2 to hold all of its regular meetings in the Judge Guy Boyington Building in Astoria with a stipulation that meetings with items of significance to a specific district or community on an agenda can be held in other locations. Previously the commission alternated between Astoria and Seaside. Patrick and Roberts voted no.

County Slashes DA's Pay

2007-05-20T14:21:00.000-07:00

(Reference "Spitting in My Face," by Tom Bennett, in the Daily Astorian, May 17, 2007.)

Those of you outside Clatsop County may think the dispute detailed in the above Daily Astorian article is a purely local issue. It is not. The decision of a majority of the County Commissioners to abruptly slash my pay by more than 15% goes to the issue of the independence of the elected prosecutor from petty local politics.

Thanks to the many people who have called, written, e-mailed, and approached me on the street. Most people have asked what they can do. Please write to the Commissioners and, to ensure your voice is heard, copy the Daily Astorian.

Clatsop County Commissioners, 800 Exchange Ave., Astoria OR 97103
The Editor, Daily Astorian, 949 Exchange St., Astoria OR 97103 (editor@dailyastorian.com)

More importantly, come to the Public Hearing the Clatsop County Commission will hold on Wednesday, June 13, at the beautifully restored and almost never used "Boyington Building," at the corner of Duane and 8th in Astoria (some parking in back). The meeting begins at 9:00am, and Public Comment is early on the agenda.

Make no mistake: This is a personal attack, partly in adolescent pique at the that fact my wife, Cindy Price, dared to run against an incumbent County Commissioner last year, partly because of my aggressive prosecution. I have always prosecuted any case without respect to who the defendant is or who they are related to. In a small town a diligent prosecutor will invariably alienate the friends and family members of those people who are convicted of crimes ranging from DUII to Manslaughter. I have also been relentless in my criticism of the shenanigans involving the Astoria Municipal Court and DUII cases. I'm an outspoken advocate for crime victims, and my fellow prosecutors and I am frequently asked to comment by national print and broadcast media. I am currently Vice President of the National District Attorneys Association and am a candidate for the Presidency; the election is in July, in Portland, Oregon, at NDAA's summer conference. Former OJ Simpson defense attorney Barry Scheck recently sent a three- page diatribe to the NDAA President and members of the Board of Directors personally attacking me for my national advocacy in an effort to dissuade my fellow prosecutors from electing me their president. I doubt many will be convinced.
In 2002 I tried the most recent capital murder case in Clatsop County, against a killer named Anthony Scott Garner. As part of the case defense attorneys claimed his co-defendant couldn't get a fair trial and obtained the services of one of Oregon's best pollsters, Mark Nelson, to measure the mood of the county. In addition to the questions about whether the approximately 350 citizens sampled had heard of the case, the poll asked an unusual question: "Do you have an opinion about the District Attorney, Josh Marquis?" Roughly 75% of those polled did. They were asked to rate my performance as either "poor," "fair," "good," or "excellent." Over 70% rated me as “good” or “excellent” and less than 10% as poor.

If I do my job right I'll probably have about 20% of the county upset at me for either prosecuting or not prosecuting their neighbor/friend/brother/daughter. Since I arrived in Astoria, in 1994, I've heard that I'm "just passing through town" and am using the job for bigger things. I have now served as DA longer than anyone since the depression-era DA, Garnet Green, almost a century ago. I have run the DA's office longer than any head of any county department currently working. Scott Derickson is the fifth person to hold the job of County Manager since I took office.

Now here are the details on what has happened.

Like all Oregon DAs, I am a State officer, elected by the citizens of Clatsop County. As in every other DA’s office in the state, all the Deputy DAs and other staff are County employees. State law requires me to prosecute cases but says nothing about administering a county department. I run what is essentially the largest law firm in the county and spend probably 30% of my time on the same administrative functions as every other county department head, all of whom are paid anywhere from $70,000 to $95,000 thousand a year.

Each year there is an elaborate budget process, the terms and deadlines for which are mandated by the County Manager, who is the CEO of Clatsop County under the county's Home Rule Charter and more importantly the County's Budget Officer.

This year -- the 14th for me -- the budget process began as usual. I spent many hours prepping the budget for my department (about $1.2 million) before submitting it to the County Manager for his comment and recommendation.

On March 17, I met with Scott Derickson and his team, Asst. County Administrator Deb Kraske and Central Services Director Mike Robison (both of whom will now be paid more than I beginning July 1). They said there were no issues or problems with my budget. The County Manager, who has great power, never communicated to me that either my office’s budget or my own supplement were in jeopardy.

In the Budget, Scott Derickson recommended the same funding as I had requested, but later churned out a 20-plus-page memo with color charts. This April 17 memo uses numbers taken from the word processing program called DACMS that the DA’s office uses to generate paperwork to make the claim that, while the caseload has been flat, the personnel budget of my office is skyrocketing, increasing 50% in just over 7 years.

In fact the DA’s office personnel budget has increased less than that of the entire County personnel budget. Nevertheless, the phony numbers form an argument the County Manager is using to prevent the secured funding of the two new staff my office received at last year’s budget hearing, staff that represented only half of the minimum additional staff recommended by a study commissioned by the County Manager prior to last year’s budget. That study, by the Local Government Policy Institute (LGPI), cost taxpayers something over $10,000. It looked at how much work my office does compared to other counties and what, if any, additional staff was needed to meet the addition of the new circuit judge. The LGPI study recommended a minimum of 4 new staff (2 lawyers and 2 support staff), and ideally 7.5 (3 lawyers and 4.5 support staff). I requested 4 and received 2, and was required to tell the new hires that their jobs were at risk of being cut at any time.

On May 6, I met with Commissioners Jeff Hazen and Ann Samuelson, in my office, specifically to discuss the upcoming Budget hearing. Neither indicated any problem with the County Manager’s public profession to recommend my budget as I had proposed it, and neither made any mention of my stipend.

Nevertheless, given prior history, you might imagine that I expected I’d have to defend retaining the two positions the County grudgingly added to my budget in December 2006. I was particularly concerned after finding County budget documents which I had never seen before posted on a local blog site later in the day on May 6. I made a formal demand on May 7, four days before the Budget hearing, that I be provided copies of whatever the County Manager was sending the Budget Committee. The County Manager’s office complied and, while reviewing the documents over the weekend, I discovered another concern: there were several memos written by the County Manager about my supplement, about DA compensation, and about the pay of other County department heads. Was my own supplement going to be threatened, without any prior notice?

At the Budget Hearing , the Committee whipped through about $50 million of the budget in two hours. At 11:30 Commissioner Hazen suggested that the "next item," the DA's budget, would take longer and proposed an early lunch break.

After lunch I made a brief presentation, with some focus on the value of the two positions (one lawyer and one trial assistant) added just six months ago. Presiding Judge Phil Nelson spoke for their need, saying that a third judge and the increased complexity of litigation overall was creating more work for the DA's office. As I had expected, the discussion centered the conditions under which the two positions would be retained.

The Commissioners, Jeff Hazen in particular, expressed their willingness to continue funding only if I came up with performance measures that were acceptable to the County Manager -- and, more significantly, said that in the event of any budget shortfall those positions would be the first to be eliminated, a position that is in direct contradiction to their stated policy that in the event of cutbacks public safety services will be cut last.

I asked whether the two positions would be guaranteed through the end of fiscal year, in June 2008 -- in other words, can I assure my Deputy DA and my trial assistant of at least one year's employment? The Commissioners insisted that it would be up to them and the County Manager to determine whether and when the budget would need to be reduced, and that the axe could fall at any time.

I responded that it seemed ridiculous to balance the County $57 million budget on the backs of two staff members of the DA’s office costing a total of about $122,000 a year. No other department is being asked to make or is threatened with reductions. There was no response.

According to the agenda, at this time we would have moved on to the Child Support budget, another division in the DA’s budget.

Instead, Commissioner Hazen moved to “take the DA’s stipend to zero.” There was virtually no discussion. County Manager Scott Derickson, whose pay will be $102,500 in July and who has as a primary duty that of being the County’s budget officer, didn't say a word during the brief discussion among committee members about my stipend. He is instrumental in this action, as implied by Steve Forrester in his Daily Astorian editorial of May 17 (What's in the water at the courthouse?). Commissioner Richard Lee didn’t say a word. At some point Commissioners Hazen and Samuelson brought up performance measures. It was sort of chaotic. The vote was quickly called, and the decision was 7-2, with Commissioners Sam Patrick and Richard Lee voting against the motion.

Therein lies another couple of tales, the first about performance measures and the second about the County’s supplement to my State pay.

In January 2007, County Manager Derickson and I began a brief e-mail exchange about performance measures. Several departments, including mine and his, had not detailed any performance measures in last year's budget. I asked him what he wanted to measure -- convictions? plea bargains? There is considerable controversy nationwide about how to measure the performance of law enforcement agencies. It's too easy to cook the books. A department head can easily increase convictions by dismissing tougher cases or making plea bargains even easier to attain. I provided Derickson with materials from the American Prosecutors Research Institute (APRI) that suggest best practices for performance measures for prosecutors. APRI recommends a public survey. When I conveyed this at the Budget hearing Commissioner Roberts seemed incredulous: "You want a survey?"

The County Manager’s department has among its performance measures the number of hits for the Manager’s web page and the number of board packets prepared.

The County Commissioners have no performance measures, presumably because they are elected officials, like me, and their performance is measured at the ballot box every four years. By those standards, based on the votes cast in the Spring 2006 election, the Commission Chair, Richard Lee, received a 50.5% rating and I received 70%.

Commissioner Hazen has written on his blog and has been repeatedly quoted as saying that his action is not personal but is based on the principle that the County should not continue to fund that which the State will not. (See Clatsop County may trim DA pay, The Oregonian, May 17, 2007.) Three other commissioners have their own, different, stories. The Chair, Richard Lee, who beat my wife by 37 votes in the May 2006 election, told the Oregonian that he actually agreed with the action but voted against it so as not to appear vindictive. He claimed that I had "not co-operated in the budget process." He uttered not a word during the public hearing on May 11. Commissioner Patricia Roberts told Portland radio station KXL that the vote was meant to "send [me] a message." Commissioner Ann Samuelson has told people it was because I had not prepared performance measures.

Here is the DA's budget (County Public Safety Budget, .pdf format). You can see that I indeed submitted performance measures, listed on pages 5 through 7. The response to these measurements from the County Manager's office was their receptionist telling me the measures weren't in the right "format."

It’s abundantly clear from many memos and meetings that I fully participate in every aspect of the budget process. I have consistently met all budget deadlines, not only this year, but for all 14 budget cycles in which I have participated. Some have said that I participate too much, in that I am a strong advocate for the proper funding and staffing of the DA’s office as well as the Sheriff’s department and all other related offices. Perhaps that’s what is meant by not cooperating -- I don’t and won’t go along gently with any attempted dismantling of the justice system in Clatsop County.

My first year as DA, 1994, when I was appointed by the Governor, I did not ask for a supplement to my State salary, figuring that I needed to prove myself and get elected. I beat my opponent by a 79 to 21 percent margin and in 1995 asked for a supplement. The Board of Commissioners allocated $9,000 that year. In the ensuing 12 years the supplement has been under constant threat but has crept up with cost of living adjustments. The supplement has never been a quid pro quo for doing any specific work for the County. I manage a County department, follow County rules, attend County meetings and even perform some non-required legal work -- habeas corpus defense of the Sheriff, civil forfeitures, and mental commitment hearings. My office will continue performing all of those duties regardless of what they do to my pay.

One reason 22 of 36 Oregon counties provide their elected DA’s with a supplement is to ensure the pay of their top law officer is greater than that of their subordinates. The average supplement is $19,000 a year. Clatsop County has a policy of ensuring that bosses earn at least 10% more than the person directly under them. My chief deputy, a great guy who deserves every dime and more, will be paid $84,000 this year, compared to my State pay of $79,500. The average pay of all lawyers in Oregon is about $95,000 a year. Clearly, no one goes into prosecution for the money. We do it because we get to be part of doing justice every day.

In 2004 I asked the five citizen members of the Budget Committee to increase my supplement. The County Manager produced a legal opinion from one of the several lawyers with whom the county contracts for legal advice. The opinion declared that, since I am not a County employee, the Budget Committee, which also constitutes the Elected Officials Compensation Board, had no authority even to consider my request. Apparently their authority is prohibited only as to increasing my pay, not to decreasing it.

If Commissioner Hazen honestly has been concerned about the State’s funding of DA salaries for any length of time, he might have communicated that to our extremely responsive and approachable state lawmakers during one of his many trips to Salem. Instead, to my knowledge neither he nor any of the County Commissioners who voted to cut my pay have ever spoken to any of our State Legislators about the issue. I know for a fact that no one mentioned it to the two State Representatives and one State Senator who represent our county. Hazen might even have forged an alliance with me. Or one would think - if it wasn’t personal - he would have given me a heads up at our meeting a few days before the Budget hearing. Something like “Hey Josh, nothing personal but I don’t think the county should pay any part of your compensation. . . .” But that conversation never happened.

Oregon has a long history of poorly paying its elected state officials, a subject I have been vocal about for years and which I wrote about in the Oregonian a few months ago (see "Culture of Poverty"). That was just one in a long series of efforts I have made to get the State to pay a greater share of the costs of prosecution and to raise the pay of DAs.

I was a key player with the Association of Oregon Counties (AOC) in both the 1999 and 2001 legislatures (in 2001 as president of the Oregon District Attorneys Association (ODAA)), seeking passage of Senate Bill 6, proposed by Attorney General Hardy Myers, which tried to reverse the trend of the State laying more and more of the cost of prosecution on the Counties. The ODAA and AOC worked together on the Bill, which started out at $20 million (a biennium) but was whittled down to $5 million by the end of session. Unfortunately, the AOC chose to direct the money provided in 1999 to Assessment and Taxation and to direct that provided in 2001 to Mental Health. I don’t recall anyone from any Clatsop County Commission ever taking part in the dozens of discussions in Salem about this bill or about improving prosecution funding and DA pay in general. And you can imagine why the ODAA has been reluctant to join hands with the AOC since 2001.

It will be clear to any reasonable reader that the actions taken by the Commissioners and the Budget Committee are based on purely personal reasons, not driven by the Budget of the County.

To my supporters, thank you and keep those cards and letter coming. If you are in Clatsop County and have the time, please come to the Budget Hearing on June 13.

To those of you just wanting to know what the bleep is going on, feel free - as always - to post questions or contact me.

To everyone else in Clatsop County, thanks for letting me serve my fourth term as your prosecutor.

What's in the Water?

2007-05-17T15:09:00.000-07:00

What's in the water at the courthouse?
Would you inflict a 15 percent pay cut on one of your top managers?
Editorial in the Daily Astorian, May 17, 2007

Imagine that your company has a high visibility top performer. Imagine that his or her department has a high rate of success. Imagine that his or her department must now cover an additional set of clients. Imagine that employee has been with your firm for 13 years.

Would you cut that person's salary by 15 percent? Probably not. It wouldn't make sense.

That's what the Clatsop County Budget Committee did to the district attorney Monday. The county budget process began as a peaceful and businesslike budget discussion. Suddenly it became the annual tug of war over the DA's office budget. The finale - to cut the county's portion of the DA's compensation - was an utter surprise. The first rule of politics and government is: Don't surprise.

The district attorney's compensation has two components: a state share and a much smaller local stipend. Clatsop is one of 22 Oregon counties that supplements its chief prosecutor's salary with a stipend.

There is managerial illogic in cutting the district attorney's salary. There is also a smallness in the behavior of the county commissioners who form the nucleus of the budget committee. One of them, in concert with the others, executed a surprise attack. It is reminiscent of the commission's bad old days which regularly produced boneheaded decisions in the courthouse. Remember when that enlightened bunch decided to make the county's personnel director a half-time position? Remember the afternoon when three commissioners failed in their attempt to fire the county manager so they resigned, which forced Gov. Barbara Roberts to appoint a commissioner in order to obtain a quorum?

That was amateur hour, and this is amateur hour.

You wonder what's in the water at the courthouse. Otherwise-competent people join the county commission and begin to do foolish things.

Within the district attorney's pay cut there is an implicit message from the Board of Commissioners: "We wish you would leave." Or is it: "Don't be such an aggressive prosecutor." Perhaps it's "Go easier on our friends who are charged with drunken driving."

We've seen this plot in bad Westerns. The nefarious saloon owner torches the home of the sheriff or prosecutor to drive him out of town.

Being an effective district attorney doesn't build friendships. Like the county jail, it is an office without a constituency. But there are people in Clatsop County who appreciate having a competent prosecutor at a time when big-league drug operations move into our county and when the county will reliably see a murder or sex crime or animal abuser annually.

If this decision is entirely budget-driven, and not a vindictive, personal attack, then presumably, in a spirit of leadership, County Administrator Scott Derickson will be lining up for his 15 percent salary reduction.

Spitting in My Face

2007-05-15T14:42:00.000-07:00

Marquis pay cut: 'It's spitting in my face'
County budget battle gets personal as leaders cut stipend instead of two other positions
By TOM BENNETT
The Daily Astorian
Tuesday, May 15, 2007

A looming dispute between District Attorney Josh Marquis and Clatsop County officials took an unusual turn Monday when the county budget committee effectively cut his pay.

The committee voted to eliminate the $13,500 stipend the county adds to the district attorney's state salary. The vote came after the panel supported two positions that had been considered for elimination from Marquis' office.

The move came as a shock to Marquis, who called it a "personal insult."

"I can only take this as a sign of extreme disrespect of my office; it's spitting in my face," he said after the committee meeting.

County Commissioner Jeff Hazen, who proposed the cut, said it had nothing to do with any displeasure with Marquis. Hazen said he's long questioned the county's practice of supplementing the district attorney's salary, even before he was elected to the board of commissioners last year.

"I feel this is another unfunded mandate from the state," he said.

The budget committee, made up of the five county commissioners and five citizen members, voted 7-2, with one of the citizen members absent, to cut Marquis' stipend. Commission Chairman Richard Lee and Commissioner Sam Patrick voted no.

The budget committee's vote amounts to a recommendation to the board of commissioners. But with three of the five commissioners - Hazen, Patricia Roberts and Ann Samuelson - supporting the cut, it will likely be approved when the board formally adopts the 2007-08 county budget next month.

The county stipend supplements Marquis' state salary, which is currently $79,512. The stipend is $13,500 this year and was recommended to increase to $13,900 next budget year.

Marquis said he had no warning that the stipend might be on the chopping block at Monday's budget committee meeting, which had appeared to be shaping up into a showdown over two new positions in the district attorney's office.

Marquis came to Monday's meeting armed with data supporting the continued funding of two new positions, which were added to his office just last year. The two personnel, a deputy prosecutor and assistant, were included in the proposed 2007-08 budget document, but with no recommendation from County Manager Scott Derickson whether the budget committee retain them or not.

The committee voted to approve the two positions, but with the warning that they could be cut later if the county is forced to reduce spending in future years because of revenue shortfalls.

After that vote, the committee turned to the district attorney's stipend, a separate line-item in the budget. Hazen expressed his displeasure with the practice, but the panel appeared to be moving on to the next item when Hazen said he wanted to introduce a motion reducing the supplement to zero.

Hazen said he recognized that district attorneys' salaries around the state have been stagnant and supported efforts to get the state to increase them. But he said it was not the county's place to use its own resources to make up for the state's shortfalls.

"It bothers me that the county is subsidizing a state-operated office," he said. "Where does it end?"

After the vote, former budget committee member Burr Allegaert asked the panel to reconsider.

"Over the six years I was on the budget committee, we were all disappointed that the state was not coming up with more money in compensation for the district attorneys," he said. "However, we didn't have the idea that just because we had a philosophical difference over the salary issue, that we would make such a draconian cut."

Marquis, who was re-elected last year to a fourth four-year term as district attorney, said he has no plans not to serve his complete term, but said the loss of his stipend amounts to a 15-percent pay cut that will mean "a significant lifestyle change for me."

The county first added a stipend - of $9,000 - to Marquis' state salary in his second year in office in 1995.

With the exception of the state's three smallest counties, district attorneys in Oregon counties with less than 100,000 population all make the same $79,512 state salary. Of those 24 counties, 12 provide a stipend that averages $14,321.

Statewide, district attorneys have only received cost-of-living adjustments to their state salaries, Marquis said. "In real dollars, I make the same as I did in 1994."

Without his stipend, Marquis said he will make less money than two of his deputy prosecutors.

Marquis said he doesn't believe Hazen's claim that the move isn't directed at him. "This is a way of expressing disrespect and contempt for me," he said.

Earlier this month, County Manager Derickson, at the request of budget committee member Dan Bartlett, drew up a memo with data on the salaries of district attorneys around the state and the pay for other Clatsop County officials, as well as past legal opinions from county counsel Heather Reynolds on the district attorney's duties.

Marquis handles the handful of mental commitment cases that come to the county each year, but it was never in exchange for his stipend, he said; he agreed to handle the cases when the county added another deputy prosecutor to his office several years ago.

It was the two new staff positions, not the stipend, that was expected to generate the most debate over the district attorney's budget Monday. Marquis and Derickson had each presented data giving different pictures of the workload of the district attorney's office.

Statistics presented by the county manager's office, which were originally requested by Hazen and Lee, appeared to show the caseload of the district attorney's office remaining constant over the past several years. Marquis argued Monday that those statistics, prepared by the state District Attorney Case Management, were flawed and didn't give an accurate picture of his office's true workload.

The two positions were added last year because of the increased work Marquis said his office would face with the addition of the third full-time circuit court, which opened early this year.

The budget committee added the two positions last year, but chose to fund them for one year only from the Special Projects Fund, which holds the county's share of state timber dollars. The committee's vote last year to add the positions came with the direction that the county look for more stable funding for the positions in future years.

The proposed 2007-08 budget included the two positions in the general fund. But Derickson added the warning that with operating costs climbing faster than revenue, coupled with a projected drop in timber revenue over the next few years, maintaining spending in the general fund at its current level could be difficult beyond 2009.

Prisons and Sentencing

2007-05-06T11:36:00.000-07:00

Holding offenders accountable

requires voters to step in if lawmakers won't act

A new urban legend is infecting Salem. It's being spread by imported academics and swallowed whole by some policymakers on both sides of the aisle and by some journalists. This myth will have profound effects on the quality of life for all Oregonians.

The myth is about prisons and sentencing, and it goes something like this: Oregon has engaged in a wholesale orgy of spending on prisons, which has left schoolchildren to fend for themselves. It also claims that our current justice system is hellbent on vengeance, and that teenage car thieves and addled addicts unlucky enough to get caught with a quarter gram of meth end up jailed together for irrationally longer prison terms.

Reality check: No matter how violent or serious the offense, virtually no one younger than 18 is in an adult correctional facility, and Oregon judges can't send a drug user to prison even after 20 convictions. Oregonians spend about 56 cents of each tax dollar on education and about 9 cents for corrections. Oregon is 34th in the nation in per-capita incarceration. Measure 11 has never applied to drug dealers, burglars or repeat property felons.

Oregon did indeed build more prisons in the last 20 years than the 80 years preceding. We were so smug in our belief that "hug-a-thug" was right that Oregon was in the lowest 10 percent of all states in its incarceration rates. The average murderer sentenced to life might have served eight years in prison, and it was commonplace for rapists given 20 years to serve less than three. Violent crime was epidemic in Oregon as the '80s came to a close.

Voters acted when the Oregon Legislature refused by passing Measure 11. Voters were convinced that truth in sentencing would make our communities safer. They were right. For most of the last decade Oregon enjoyed the largest reduction of violent crime of any state.

We must now focus on property crime, where we rank fourth worst among all states. The state's district attorneys have worked with the governor and the Department of Corrections to develop a policy that begins to hold repeat property offenders accountable. Their proposal would also limit eligibility to the Alternative Incarceration Program -- properly criticized last August by The Oregonian for cutting sentences in half or more -- to ensure it is available only to nonviolent offenders.

This proposal is nearly universally endorsed. Yet it is not likely to gain passage. Why? Some state policymakers demand that any increases in sentencing be offset by comparable reductions in Oregon's successful sentencing system. The phrase bandied around Salem is "revenue neutral," a requirement that apparently applies only to public safety and means that if we add six months to a chronic burglar's sentence, we have to cut another felon's sentence the same amount.

This demand makes absolutely no sense. Oregonians should not be forced to compromise reductions in violent victimization to protect themselves from ID thefts, car clouts and burglaries.

In 1994, Oregonians passed Measure 11 because they were sick of violence in their communities and tired of inaction by policymakers. If the Legislature does not act, voters may again use the blunt tool of the initiative process to enact change.

Why Criminal Defense Attorneys Hate Josh, Part IV

2007-05-03T13:58:00.000-07:00

I seem to inspire special enmity among criminal defense lawyers. I take this as a compliment, as reflected in Parts I through III of Why Defense Attorneys Hate Josh. This latest edition was posted in a downtown Astoria coffee shop by Seaside defense attorney Ty Settles, who gets credit for identifying himself. Since I'm not Catholic and I have no aspirations to deity or even sainthood status, I'm not sure what this is supposed to mean. But I am wearing a white hat. Like the thong (see Part I), if it was supposed to upset me, it didn't work. I think it's funny.

Part II
Part III

Why Jails work

2007-03-01T19:45:00.000-08:00

There has been much discussion - too much behind closed doors - about issues surounding the jail and the "supervisory authority," the legal entity to whom defendants who are NOT sent to prison are remanded when one of our three judges says "I sentence you to XX days in the supervisory authority."

In Clatsop County the supervisory authority is jointly shared by the Sheriff and the Community Corrections (Probation) Department. This was a decision of the Board of County Commissioners about 10 years ago when Oregon law changed. The theory was that this would allow each county to craft its own program for inmates sentenced to a year or less.
Keep in mind that in Oregon 84% of all sentenced felons do NOT go to prison, thet are either in jail or on probation, in either event in the care of the "supervisory authority," and that about 75% of all convictions are for misdemeanors - crimes like DUII and Assault for which the maximum sentence is one year in jail or less.

The State of Oregon pays each county money based on a formula tied to the number of felony probationers. They also send the county a sizeable sum for those people sentenced to prison, but for terms of 12 months or less. As a result of this funding the county is reimbursed by the state only for felony cases. However the vast majority of crime and sentenced prisoners are not felons. When a Clatsop County hands down a "jail" sentence they are doing it because the judge beleives that is the most appropraite way to sanction misconduct, deter future bad behavior, and offer those criminals who want help a way out of the conduct that keeps landing them back in jail. During the recent campaign for Circuit Judge one - unsuccessful - candidate kept saying there were people in jail who shouldn't be there. I repeatedly asked him to name even one such inmate and he was unable to do so. The reason is that our judges are handing down sensible sentences restricted by the resources available and a complicated set of rules called sentencing guidelines.

The jail is capped, by order of the County Commission to prevent lawsuits from inmates at 60 beds. The county also rents ten beds from Tillamook County and there are up to 30 beds available at the Transition Center. The Transition Center was oriiginally supposed to be paid for by a state grant called a certificate of participation. As the years went by the cost went up and the county used Timber Revenues to build the existing center which also houses the office of Community Correction(Probation).
There are no bars or even locks on the doors because the Center was originally intended to ensure that it's "residents" could receive treatment through the Oregon Health Plan (OHP) The OHP would NOT pay for treatment if someone was in a secure lockdown. Unfortunately the state changed the rules and now severely limits who can be on OHP.

The Transition Center was designed to hold that class of inmates who needs more supervision that can be provided by a probation officer monitoring their job and house but not ones so dangerous that need to be locked up in a jail.

Keep in mind that while it has a large budget the budget for Community Corrections is ALL state money and since they get money only for felony offenders there is relatively little supervision of misdemeanor offenders.

But misdemeanors, DUII, most domestic assault make up the MAJORITY of convicted offenders.

There has been much chest pounding about the release of a man sentenced to 30 days for violating his probation for an original crime of Failing to Register as a Sex Offender.

But that release is small potatoes compared to what has been happening for the last several years. It is commonplace for a six-time DUII offender to get 6 months and serve a fraction of that or more regularly a felony offender who repeatedly violated probation so his probation is revoked and he is given 180 days (the maximum). All too often that person is released from jail because of overcrowding and IF he is on probation is on such a low level of supervision that for all intents and purposes he's walking free.

To blame the Sheriff is just pure politics. The system hasn't been working for years and a number of us who work in the system have been trying to get the people with the power to do something to pay attention to a broken process, and that doersn't mean which person is released on matrix.

If Judge Nelson's Drug Court works it is in large part because the drug offender in that program know that if they really screw up the Judge can send them to jail for a short stay (usually 2 to 5 days).

When a judge has a repeat wife beater in front of him or her and wants to make sure he goes to treatment and quits whaling on his spouse it is the THREAT of jail that often makes him comply.

As the District Attorney I don't get frequent flyer miles for the number of people in jail or prison. I have all the customers I need. In fact if I want more business then keep releasing these criminals early because they do re-offend, at an alarming rate.

So let's quit the useless posturing and finger pointing, suck it up and read some of those many studies the County has commissioned or the Clatsop County Grand Jury's investigation (available at the county website) and recognize that we need to do SOMETHING and soon.

Sheriff Bergin has offered a sensible way to use the existing jail, spend well less than $10 million. Time to get to work and stop the hand wringing!

Pornography of pay

2006-11-16T20:54:00.000-08:00

Thursday, November 16, 2006

Culture of poverty, pornography of pay

In politics there is an unspoken rule for public officials not to talk about their own salary. It's the pornography of pay, akin to peeking at someone's underwear.

The Oregonian recently ran a story about the extraordinary number of trial judges leaving the bench. It's a tough job, but one reason they're leaving was barely mentioned:

The pay for our circuit (trial) and appellate judges is somewhere between 47th and 49th in the 50 states. A first-year associate lawyer at one of Portland's top law firms is paid more than the chief justice of our Supreme Court. That is beyond ridiculous, it is embarrassing.

Judges are only one example. We pay our legislators between $15,000 and $30,000 a year and yet are surprised that they don't take vows of poverty or that they hire their spouses as legislative aides. Oregon's attorney general is paid less than $80,000. The governor (who turned down a raise) makes more than $30,000 less than his chief of staff. The Oregon State Bar pins the median salary for all attorneys at about $95,000. The top prosecutor in most Oregon counties is paid about $77,000. (Some counties supplement that salary so that the elected DA doesn't make less than his or her deputies.)

What does that say about the value of the work done by lawyers entrusted with decisions -- including whether to seek the death penalty -- that affect the lives of Oregonians? It's fashionable to claim that money doesn't matter, and it's considered beyond rude for an elected official to complain about her salary. Naturally, when Oregon's median salary is less than $40,000 it may be difficult to feel sympathy towards someone who earns twice that amount. But it's simply denial to believe these low salaries don't affect our ability to attract and retain the best people. All too often we lose them to the private sector, which appropriately rewards those with the most experience and responsibility.

I love my job, but the truth is I'm able to indulge in the luxury of starting my fourth term as the chief law officer for Clatsop County because I have no children. I didn't buy a house 15 or 20 years ago when real estate was cheap. My wife is a freelance editor. If we were sending a couple kids to college, we would have a difficult time justifying our career choices -- and likely would have made different choices years ago. Friends with whom I went to law school at the University of Oregon earn, as trial lawyers, two to three times what I can ever hope to make in public service.

Now, I didn't become a prosecutor to be wealthy, and, of course, there are intangible rewards for public service. Those of us fortunate enough to be elected have an opportunity to shape policy, and there is great satisfaction in working to make Oregon a better place to live.

That said, it's unreasonable to continue to expect elected officials who make the most important decisions in government to come from rich families, or to marry a rich spouse or to live an ascetic lifestyle simply for the pleasures of living in Oregon and not Washington or Connecticut.

The new and re-elected members of the Oregon Legislature have the power to change our culture of poverty. If we can talk to young people about sex and drugs, we certainly can have a real discussion paying our elected officials a fair wage.

Joshua Marquis has been the elected district attorney in Clatsop County (Astoria) since 1994. He was just re-elected to a fourth term and he serves as vice president of the National District Attorneys Association.

Review of John Grisham's "The Innocent Man"

2006-10-10T09:12:00.000-07:00

The Page Turner As Polemic
By JOSHUA MARQUIS
October 10, 2006; Page D6

John Grisham, in his first nonfiction book, writes about the 1987 trial and sentencing to death of Ron Williamson for the murder and rape five years earlier of 21-year-old Debbie Carter. Mr. Williamson's appellate lawyer succeeded in getting his conviction overturned based on claims that his first trial lawyer was inadequate. While preparations for a new trial were being made in 1997, newly available DNA testing established that neither Mr. Williamson nor his friend and co-defendant, Dennis Fritz, was the killer.

In Mr. Grisham's novels, the characters usually divide into two groups: the good guys caught up in evil conspiracies and the villains who concoct them. "The Innocent Man" is no different. Thanks to his abundant storytelling skills, the author delivers an account that is as vivid as the Grisham fictional fare sold at airport kiosks -- but it is also, alas, just as oversimplified as his novels, and it distorts the justice system in the same way. Make no mistake, "The Innocent Man" -- with its blunt subtitle ("Murder and Injustice in a Small Town") and its author's long-professed zeal to attack capital punishment -- is not simply a legal thriller drawn from real life. It is a polemic.

Ron Williamson was a promising high-school baseball player who in 1971 was a second-round draft choice of the Oakland A's. His family and his hometown, Ada, Okla., shared Mr. Williamson's high hopes that he would become a baseball superstar. But Mr. Williamson sputtered in the minors for a few seasons before abandoning his dream and beginning a slide into a dissolute life of drinking, drugs and crime. There were two formal charges of rape in 1978, neither charge resulting in conviction. In a letter (not mentioned by Mr. Grisham) that Mr. Williamson wrote while on death row to the prosecutor who put him there, he claimed -- apparently trying to illustrate how the justice system can indeed fail -- that he had gotten away with one of the rapes.

The crime that sent him to prison unjustly was discovered when two of Debbie Carter's friends found her in her apartment in a grisly scene all too common in sex murders. Police went down many dead ends while investigating the case, and after four years it remained an unsolved killing in a small town -- until someone pointed a finger at Mr. Williamson, who had frequented a bar where Ms. Carter worked. His incriminating statements and a strand of hair that seemed to match his own convinced police that Mr. Williamson, along with his friend, Mr. Fritz, were Debbie Carter's killers.

One of Mr. Grisham's heroes in "The Innocent Man" is high-profile attorney and Innocence Project co-founder Barry Scheck ("...and Barry Scheck was coming to town! Scheck's fame was growing enormously as the Innocence Project pulled off one DNA exoneration after another"). But despite the author's cheerleading for Mr. Scheck's involvement in the Williamson case, the DNA testing that set Mr. Williamson free was in fact prompted by defense attorney Mark Barrett and District Attorney William Peterson. Far from having railroaded Mr. Williamson, as Mr. Grisham implies, Mr. Peterson -- the chief prosecutor in the case -- was convinced that DNA testing would further validate Mr. Williamson's conviction.

The DNA sample turned out to match that of another man, Glen Gore, who had hung out in the same bars as Mr. Williamson and Mr. Fritz and who was in prison on other charges. Mr. Williamson and his co-defendant were freed in a highly choreographed media event in April 1999; they sued the government agencies involved and settled in 2002 for an amount that was rumored to be in the millions of dollars. Two years later, Mr. Williamson died of cirrhosis at age 51. Though Mr. Grisham, publicizing the book, has said that Mr. Williamson "drank himself to death," he suggests in print that Mr. Williamson's death was caused by medications that the author variously claims were overprescribed or denied to Mr. Williamson while in custody.

You would hardly know it from "The Innocent Man," but the same district attorney's office that Mr. Grisham vilifies for its eagerness to prosecute Mr. Williamson with shabby evidence ("it was remarkable that Bill Peterson, an officer of the court and charged with the duty to seek the truth, could elicit such garbage") went just as earnestly after Glen Gore for Debbie Carter's murder. Prosecutors had to try Mr. Gore twice; the first conviction was overturned when a judge ruled that Mr. Gore's defense should have been allowed to raise the possibility that Mr. Williamson and Mr. Fritz had murdered Debbie.

These attempts to bring Mr. Gore to justice, and even the murder of Debbie Carter itself, are very much sideshows in Mr. Grisham's story. He is much more interested in depicting how the once-bright dreams of Ron Williamson were destroyed by police and prosecutors who were inept at best but more likely corrupt. Yoking together the Williamson affair and the 2001 drug conviction of an Ada police officer -- who was not involved in the murder investigation -- Mr. Grisham cries: "When will the good guys clean house?"

The one-sidedness of "The Innocent Man" is a shame, for two reasons. First, because it feeds the popular perception -- nurtured by Hollywood and the news media -- that death rows are teeming with wrongfully convicted men who just await DNA testing to set them free. Second, by skewing his tale, Mr. Grisham missed an opportunity to tell a well-rounded and perhaps more interesting story than the one he delivers. The author is not a journalist, and it shows: He doesn't maintain even a pretense of detached reporting. He didn't attempt to get Mr. Peterson's side of the story, though hearing from the supposedly irresponsible prosecutor might have been illuminating. Indeed, Mr. Grisham seems to have given a wide berth not only to prosecutors but also to the police and even to the judge in Mr. Williamson's trial.

Opponents of capital punishment will point to "The Innocent Man" as vindication of their views, but it's not clear that their cause, in the end, is well served by Mr. Grisham's heavy-handed proselytizing. The freeing of Mr. Williamson and Mr. Fritz was the result of the legal system's checks and balances; it is characterized by Mr. Grisham as a lucky fluke in the never-ending battle between plucky defense attorneys and bloodthirsty prosecutors. While that outlook might make for fiction that readers just can't put down, it misses the fact that in the real world of complicated heroes and villains, life does not imitate art.

Mr. Marquis, the district attorney in Astoria, Ore., is vice president of the National District Attorneys Association.

WYSIWYG

2006-08-07T10:21:00.000-07:00

I've added a new feature to the blog: Ask The D.A. If you want to know the answer to "why this happened" or just have a question about the justice system, leave your question, named or anonymous, and I will try to answer. Keep in mind that this is a privately maintained site, not involved with taxpayer money, and that I can ethically neither give legal advice or talk about PENDING cases.

On this site I have included a variety of published writings, most on national criminal justice issues, some book reviews I was asked to write for the National Law Journal and the Wall Street Journal, and some more regional observations about where I live, northwest Oregon.

Most of you familiar with computers know the expression WSIWYG - for the uninitiated,
"What You See Is What You Get." My goal as an elected official is to be just that: as little artifice as possible for someone who has to be elected to do my job. I have just been elected to my fourth 4-year term (which begins in January of 2007) and I continue to be a working prosecutor - meaning a District Attorney who appears in court several times a week. I enjoy writing and discussing my opinions on criminal justice and am fortunate to be asked to speak on these subjects to groups of prosecutors, lawyers, and activists around the United States.

As the local District Attorney I am bound to anger those who have friends or families of people who get charged with crimes. I think it is extremely important that the citizens of Clatsop County know that justice should be the same no matter who you know or how much money you have. I have prosecuted - and convicted - lawyers, psychologists, doctors, police officers, and even one of the largest seafood processers in the region. This means I don't get invited to a lot of parties.

One prominent local defense attorney complained that "it used to be fun to practice law in Clatsop County," and it wasn't "any more because of Josh Marquis." It was meant as an insult but I take it as a compliment.

I have used the Archives section to republish articles that otherwise are locked behind pay-to-view websites. So feel free to browse and comment.

WYSIWYG.

Scalia quotes Marquis

2006-06-26T16:55:00.000-07:00

KANSAS, PETITIONER v. MICHAEL LEE MARSH, II

certiorari to the supreme court of kansas

No. 04-1170.?Argued December 7, 2005--Reargued April 25, 2006--Decided June 26, 2006

Finding three aggravating circumstances that were not outweighed by mitigating circumstances, a Kansas jury convicted respondent Marsh of, inter alia, capital murder and sentenced him to death. Marsh claimed on direct appeal that Kan. Stat. Ann. §21-4624(e) establishes an unconstitutional presumption in favor of death by directing imposition of the death penalty when aggravating and mitigating circumstances are in equipoise. Agreeing, the Kansas Supreme Court concluded that §21-4624(e)'s weighing equation violated the Eighth and Fourteenth Amendments and remanded for a new trial.

< . . . snipped. . . >

Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Scalia, J., filed a concurring opinion. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.

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Justice Thomas delivered the opinion of the Court.

Kansas law provides that if a unanimous jury finds that aggravating circumstances are not outweighed by mitigating circumstances, the death penalty shall be imposed. Kan. Stat. Ann. §21-4624(e) (1995). We must decide whether this statute, which requires the imposition of the death penalty when the sentencing jury determines that aggravating evidence and mitigating evidence are in equipoise, violates the Constitution. We hold that it does not.

I

Respondent Michael Lee Marsh II broke into the home of Marry Ane Pusch and lay in wait for her to return. When Marry Ane entered her home with her 19-month-old daughter, M. P., Marsh repeatedly shot Marry Ane, stabbed her, and slashed her throat. The home was set on fire with the toddler inside, and M. P. burned to death.

The jury convicted Marsh of the capital murder of M. P., the first-degree premeditated murder of Marry Ane, aggravated arson, and aggravated burglary. The jury found beyond a reasonable doubt the existence of three aggravating circumstances, and that those circumstances were not outweighed by any mitigating circumstances. On the basis of those findings, the jury sentenced Marsh to death for the capital murder of M. P. The jury also sentenced Marsh to life imprisonment without possibility of parole for 40 years for the first-degree murder of Marry Ane, and consecutive sentences of 51 months' imprisonment for aggravated arson and 34 months' imprisonment for aggravated burglary.

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Justice Scalia, concurring.

I join the opinion of the Court. I write separately to clarify briefly the import of my joinder, and to respond at somewhat greater length first to Justice Stevens' contention that this case, and cases like it, do not merit our attention, and second to Justice Souter's claims about risks inherent in capital punishment.

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Finally, I must say a few words (indeed, more than a few) in response to Part III of Justice Souter's dissent. This contains the disclaimer that the dissenters are not (yet) ready to "generaliz[e] about the soundness of capital sentencing across the country," post, at 9; but that is in fact precisely what they do. The dissent essentially argues that capital punishment is such an undesirable institution--it results in the condemnation of such a large number of innocents--that any legal rule which eliminates its pronouncement, including the one favored by the dissenters in the present case, should be embraced. See ibid.

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Of course, even with its distorted concept of what constitutes "exoneration," the claims of the Gross article are fairly modest: Between 1989 and 2003, the authors identify 340 "exonerations" nationwide--not just for capital cases, mind you, nor even just for murder convictions, but for various felonies. Gross 529. Joshua Marquis, a district attorney in Oregon, recently responded to this article as follows:

"[L]et's give the professor the benefit of the doubt: let's assume that he understated the number of innocents by roughly a factor of 10, that instead of 340 there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent--or, to put it another way, a success rate of 99.973 percent." The Innocent and the Shammed, N. Y. Times, Jan. 26, 2006, p. A23.

The dissent's suggestion that capital defendants are especially liable to suffer from the lack of 100% perfection in our criminal justice system is implausible. Capital cases are given especially close scrutiny at every level, which is why in most cases many years elapse before the sentence is executed. And of course capital cases receive special attention in the application of executive clemency. Indeed, one of the arguments made by abolitionists is that the process of finally completing all the appeals and reexaminations of capital sentences is so lengthy, and thus so expensive for the State, that the game is not worth the candle. The proof of the pudding, of course, is that as far as anyone can determine (and many are looking), none of cases included in the .027% error rate for American verdicts involved a capital defendant erroneously executed.

Since 1976 there have been approximately a half million murders in the United States. In that time, 7,000 murderers have been sentenced to death; about 950 of them have been executed; and about 3,700 inmates are currently on death row. See Marquis, The Myth of Innocence, 95 J. Crim. L. & C. 501, 518 (2006). As a consequence of the sensitivity of the criminal justice system to the due-process rights of defendants sentenced to death, almost two-thirds of all death sentences are overturned. See ibid. "Virtually none" of these reversals, however, are attributable to a defendant's " 'actual innocence.' " Ibid. Most are based on legal errors that have little or nothing to do with guilt. See id., at 519-520. The studies cited by the dissent demonstrate nothing more.

Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free. The American people have determined that the good to be derived from capital punishment--in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes--outweighs the risk of error. It is no proper part of the business of this Court, or of its Justices, to second-guess that judgment, much less to impugn it before the world, and less still to frustrate it by imposing judicially invented obstacles to its execution.

read the full FindLaw article here.

Guns and Butter and Jails

2006-06-10T17:05:00.000-07:00

The prime duty of government is to protect its citizens. It does that in a number of ways, from funding police, prosecutors and jails to protect citizens from crime, to passing laws and funding agencies that protect the public health by ensuring the water is safe to drink and the air is safe to breathe.

All too often, however, politicians tell citizens, the people who underwrite government with their tax dollars, that they must make a choice between decent schools or enough jail beds. These "guns or butter" choices are largely false and based on assumptions that are just plain wrong.

One oft-heard claim is that we spend more money on prisons than schools, and that by extension any request to expand jail beds rips the books out of an eager second-grader's hands.

Prisons and schools in Oregon are allocated at the state level. In the most recent budget about 58 cents of every tax dollar pays for education (kindergarten through higher ed) and about 8 cents pays for the judges, the prison system and the community probation programs that are administered by the county. Otherwise the cost of public safety is borne mostly by local governments -- cities and counties. They pay, mostly through your taxes, the costs of operating police and sheriff's offices, the prosecutor's office, and the jails.

The state also funds the lawyers appointed to defend accused criminals who cannot afford their own legal assistance. This is a much larger amount of money than most people imagine. In fact the state spends several million more dollars each year for "indigent defense" than state and county monies combined spend on the District Attorneys' offices to prosecute the same defendants.

In other words, when an aggravated murder case is tried in Clatsop County, as has happened several times during my tenure as D.A., the amount of money paid to the defense lawyers, defense investigators and defense witnesses is several times that of the prosecution. In one recent trial (State vs. Anthony Scott Garner) a single defense witness was paid more than $30,000. That's twice the amount I have to spend for ALL costs of ALL expert witnesses and witness travel in ALL the hundreds of cases my office tries each year.

Here's a claim that gets some people scratching their head. Sometimes you'll find two headlines in the same paper. One reads: "Prison Populations At All Time High." The other proclaims: "Crime Rate Lowest in 3o Years."

Wondering why? A very small percentage of people commit the overwhelming majority or crimes. It's not that half the citizens of Clatsop County are stealing stuff -- or worse -- from the other half. It's that 2,500 of them are stealing the stuff of the other 33,000. Lock up as many of those 2,500 criminals as you can and, lo and behold, the crime rate decreases.

Decreasing crime is a complex challenge. Solid families of whatever makeup, good education and adequate nutrition all help lower crime rates. We spend the vast majority of our public and private charitable resources shoring up these positive values, trying to keep or put people and children on a track that embraces positive and productive lifestyles.

Still, incapacitation is the main force driving crime rates down. When the molester next door finally goes to prison, at least for six years he's not victimizing any other kids.

Here we can consider the much-maligned Measure 11 sentencing law and our county jail.

Measure 11 applies only to criminals convicted of the most serious crimes against people -- serious assaults, sex crimes, armed robbery and homicide. It was enacted by grassroots support after people got tired of criminals serving two years and four months for deliberately running down a 12-year-old girl (Lisa Doell in Lake Oswego), and of murderers serving less than eight years after being sentenced to life.

Measure 11 does not apply to any drug crime, forgery, theft of any amount or even burglary of an occupied home.

Of the almost 1000 criminal cases filed in Clatsop County each year, about 35 percent are felony crimes. These are more serious charges with the possibility of prison as a sanction. Of that 35 percent, more than 75 percent will not go to prison but will instead be placed on probation, with the possibility of being sent jail should they violate probation. It's this specter of jail time that the probation officer hopes will induce co-operation in treatment and rehabilitation.

The Clatsop County jail is currently “capped” at 60, with an additional 20 beds rented from Tillamook County. Very soon the Transition Center will open. Not a jail, it is more of a halfway house/dorm with a capacity of 30 beds. In theory the people who will go there instead of jail are motivated to change their lives and will take advantage of the more intensive supervision they will get while living at the Transition Center. But there are no locks on the doors, no bars on the doors. If an inmate choose to walk, he would face the prospect of being arrested and taken to the secure jail, assuming there is any room in that facility.

Clatsop County has spent many thousands of dollars on studies, all of which have recommended having a secure-bed jail with a capacity of 140 to 200. The trick is to keep the bed from being totall full so that probationers can let their charges know that if they screw up there is in fact a jail bed with their name on it. Sometimes this knowledge deters your garden-variety criminal as well.

As it stands now, someone who has failed his probation for the fourth time may be sentenced by one of our judges to the maximum pf six months. But it's not uncommon for that person to serve only a few days of the sentence because of what is called “forced matrix release.” Now the offender, who was supposed to be in treatment and staying away from bars but didn’t, is out free. And I do mean free, at least until the end of the six months that he was sentenced, because on paper he's “in jail” and, therefore, his probation officer can’t even supervise him.

Most of the people in jail are awaiting trial, some because they are accused of very serious crimes (like rape) but most because they have a long record of failing to show up the many other times the court has ordered them to appear. Every time the lawyers, judge, and witnesses show up ready for a hearing and trial and the defendant has taken a powder, it costs the taxpayers another part of the figurative arm or leg.

There's no question that we need a spectrum of sanctions. Those who are willing to change a destructive lifestyle need access to job and life skills training, and to education. A short jail stays can be enough to convince some offenders to change their lives. Some require a longer term. The hope is always that imprisonment will deter the criminal by making the consequences of his choices so unpleasant. Failing that, we need simply to separate some criminals from the larger community for the rest of their predatory life.

But we do have limited resources. Our task is to elect with care the government officials who make decisions at the city and county level -- mayors, city councilors, county commissioners, the Sheriff, judges, the District Attorney -- and tohold them accountable for sensible and productive uses of those resources.

As District Attorney it's my job to be the gatekeeper at the front end of the system for those who won’t obey the law; to filter out the cases that can’t be prosecuted and to elevate those that commit the greatest harm; and then to advocate for holding responsible those who are found guilty and seek consequences for their wrongdoings, all the while recognizing that any human system is imperfect and no-one has flawless judgment.

In a smaller community this is often a tough job because at some point a person I know or a family member or a friend of a friend will cross the line. Is there one rule of law for those I know and like and a different one for the faceless others? No. If I do my job right I’ll always have a someone mad at me for dragging their brother/sister/husband/child into court and changing their lives.

I don't get frequent flyer miles for the numbers of people who get locked up. I live in the same county as all of you and I simply want all my neighbors to be able to enjoy their homes and their property, to drive our winding roads without fear, and for their kids to be able play in a safe park.

And, contrary to popular myth, being a career District Attorney is actually a lousy job if you aspire to higher office. If you do it right you make more enemies than friends. But you get to sleep well at night, knowing that you’ve done your best to do the right thing, as best you can see it. What I like most about my job is that my sole allegiance as a lawyer is to the truth. I'm not beholden to someone paying the bill. It's a moral luxury few private attorneys enjoy.

[This essay was edited for typos and reposted on Thursday, June 15.]