County jury process challenged

Defense lawyers seek to dismiss about 300 felony
indictments in Josephine County, alleging grand jurors were
briefed prejudicially

Saturday, February 10, 2001

By Beth Quinn, Correspondent, The Oregonian

GRANTS PASS -- Defense attorneys claiming that
Josephine County grand juries have been systematically
prejudiced by secret briefings since 1989 have challenged
about 300 felony indictments in criminal cases pending
before Josephine County Circuit Court.

Motions for dismissal of virtually every open felony case
were received at the Josephine County Courthouse on
Thursday and Friday, all alleging violations of the U.S.
Constitution's guarantee of due process and equal
protection, similar protections in the Oregon Constitution
and the Oregon statutes governing grand jury procedures.

At issue is the practice of allowing police officers and
others not sworn in as witnesses and whose names did not
appear as witnesses on indictments to provide general
orientations about drug and sexual abuse to grand jurors.

"It's a systematic prejudicing and indoctrination and tainting
of a group of people who are supposed to be independent
and separate from the state and the district attorney. It's
supposed to be a check and a balance," said attorney
Holly A. Preslar of Josephine County Defense Lawyers Inc.
"It prejudices the rights of the defendants from the
beginning."

Oregon law requires prosecutors to test their criminal
cases before a grand jury or at a preliminary hearing. In a
grand jury, up to 12 citizens meet in sessions closed to the
public to hear only the prosecutor's case before deciding
whether sufficient evidence exists to continue with the
criminal charges. In a preliminary hearing, evidence of a
crime is presented to a judge who also hears testimony
from the accused's defense attorney.

Josephine County District Attorney Clay Johnson said the
grand jury orientations have stopped but that past
orientations aren't sufficient grounds for dismissing the
pending cases.

"I can see why some people would say it's inappropriate,
and it's not worth the effort to fight about," Johnson said.
"We are contesting the motions. We don't believe there are
any grounds to set aside the grand jury indictments."

All four Josephine County Circuit Court judges -- Allan H.
Coon, Gerald C. Neufeld, William J. MacKay and Loyd
O'Neal -- have recused themselves from hearing the
motions for dismissal, where Johnson and many of his staff
of assistant district attorneys are expected to be called as
witnesses. Instead, the motions will be heard by Coos
County Presiding Judge Richard L. Barron, although no
hearing dates have been set.

The proceedings of grand juries are secret, but Josephine
County's special orientations came to light in January
through the newsletter of Family Friends, a local non-profit
organization that provides therapy and other support to
child victims of sexual abuse.

"The grand jury members received training by Family
Friends prior to case presentation. Topics include how to
listen to horror without shutting a child down, stages of
sexual abuse, behaviors a child may exhibit, delayed
disclosure and controversy over a child's credibility. An
educated grand jury will better serve the children and
courts," the newsletter said.

Preslar said that passage troubled Grants Pass defense
attorney Claudia E. Browne, who queried by fax all
members of the Josephine County criminal bar and by
e-mail most criminal defense attorneys in Oregon. All
agreed that such grand jury orientations violated state law
governing grand juries and the constitutional rights of
criminal defendants, she said.

Meanwhile, the Josephine County criminal bar learned that
members of JOINT -- the Josephine County Interagency
Narcotics Team -- have provided grand jury orientations on
drug abuse since 1989.

The arguments against such orientations got a trial run last
week when attorney Robert Bain raised the issue during a
criminal case before Josephine County Judge Coon, who
was concerned enough to grant a continuance.

"Judge Coon used some pretty strong language in the
hearing," Preslar said. "We've just been round the clock
working on this ever since."

About 25 defense lawyers have filed dismissal motions,
including both attorneys in private practice, the Josephine
County Public Defender's office and Preslar's group, which
also represents indigent defendants.

Preslar said defense attorneys confined themselves to
current indictments because a review of case law shows
that appeals courts have held that indictments by tainted
grand juries aren't cause for overturning convictions handed
down by a second jury which heard evidence from both the
defense and the prosecution.

The practice of such grand jury orientations may not be
confined to Josephine County. Preslar said defense
attorneys in Jackson County are looking into allegations
that JACNET - the Jackson County Narcotics Enforcement
Team -- provided orientations to grand juries seated in
Medford. And District Attorney Johnson said he knew of
similar orientations in at least one other county. He refused
to name that county but did say it was not Jackson
County.


Do you have news of Jackson, Josephine or southern
Klamath counties? You can reach Beth Quinn at
541-474-5926 or by e-mail at bquinn@terragon.com

Source:
http://www.oregonlive.com/news/oregonian/index.ssf?/news/oregonian/01/02/nw_71jury10.frame 

Beth Quinn