Thread by @rachelbusygrl

Friday Thread on #CriminalJusticeReform in Oregon:

Yesterday ended a 20 month journey repping a young client (under 25) who started out as a giant pain in the ass & then turned into 1 of my favorite clients ever.

It started with Client who wound up facing 6 cases w/ a possible 15 convictions on the line, ranging from contempt to misdemeanors to C level felonies.

The PDs office had a conflict & so I was appointed to the case.

If PDs office had case, more than likely would've been pressure to resolve all cases with a “global” – a person pleads to some charges in exchange for state dismissing the rest. The ratio depends on many factors largest being the county charges are in & the specific prosecutor.

This is NOT criticism of PDs offices – I worked in 1 for over 8 years, & generally a Global resolution is seen as best way to go – less overall risk to client (trials are risky) & best use of resources/time for PD, state & court. Its something I did w/ clients w/ multiple cases.

However its not always best for client. When you're in a PD’s office your caseload is high & the work is never-ending.This can sometimes make it hard to listen, really listen, to a client & what is going on w/ them. In turn that can make it hard for client to trust you,their atty

For this client, it started as 1 case, then 2 & my initial thoughts were to get a Global similar to what co-defendants in main case received – plea to a misdemeanor, dismiss the rest. Our prosecutor refused.

Client didn't initially trust me.

It took getting client out of custody after an arrest to start building trust & it took the DA rejecting our reasonable offer to get me to go all-in on what became our plan of attack for defending client against the ever-increasing charges/cases filed against them.

One at a time, case by case, we would go to trial.

We started with a fast dismissal of the first case (2 charges) by setting for trial asap & the state had to dismiss because they were unable to proceed. 1 case down, 4 to go.

(Being ready at the 1st setting can be a huge strategic win b/c often state is expecting a setover from the defense & have not prepped the case. DAs have big caseloads too, they just get paid better for it.)

Next up, first felony trial, several months out because of trial schedules.
We get to Jury trial, takes several days, multiple witnesses for both sides, jury acquits client of all charges.

Now 2 cases, 5 charges down, w/ 3 cases, 9 charges to go.

Takes months b4 next case gets to trial & in the interim, prosecutor files the 6th case – a felony – based on client failing to appear at court date on the case where he was just acquitted.

This brings us to 6 cases total, 4 pending w/ 10 possible convictions on the line.

We had a civil compromise worked out on this 1, but when presented to the court, w/ victims telling judge this was what they wanted – civ comp denied by b/c client had 1 conviction for a B misdemeanor when he was 18 & county practice is no civ comps for anyone w/ prior conviction

So trial occurs & client is found Not Guilty by unanimous jury verdict on all 4 counts.

Three cases, 9 charges down & 3 cases 6 charges to go, but only 1 felony charge left.

Months pass, jury trial happens on a 2-count misdemeanor & it gets dismissed before ever getting to jury deliberations because zero evidence client had anything to do with charges.
Judge granted defense Motion for Judgment of Acquittal.

Are you starting to see the problem?

Two cases left, 4 possible charges, 1 felony. Felony FTA gets dismissed because new case from Oregon Court of Appeals (State v Lobue, 300 Or App 340, 2019) says its not a crime.

One case left, 3 possible convictions, all misdemeanors.

Jury trial, several days, client acquitted of 1 charge, convicted of 2 & we have some issues for appeal.

So out of 15 possible convictions, 3 felonies, client bravely challenged the charges at trial and emerged w/ minimal impact. Good things can happen when you go to trial.

While I believed in my client & case & would have liked to be able to deliver a clean sweep with zero convictions – it was probably statistically unlikely.

And that’s part of the larger problem.

Out of the 6 cases client faced – at least 3 never should have been charged.

This last case could have been resolved w/o a conviction but-for the county policy & the prosecutor.

All this to say – the criminal justice system needs a complete overhaul. Oregon's criminal justice system needs to change.

County policies that emphasize convictions over everything, that say 1 mistake & you’re not worthy of chance to fix w/o a conviction (even though state law says otherwise), that don’t take into account youth – those are bad policies that need to be thrown out.

Vote for change.

Prosecutors have too much power. One person, the prosecutor, decided that this client needed or deserved to have felony convictions/multiple convictions before the age of 25 & charged cases with zero to de minimis evidence of criminal conduct on the part of my client

overcharging in an attempt to leverage a felony conviction.

In this instance it didn’t work – but it easily could have. It usually does work. Overcharging by DAs happens all the time for just this reason.

The criminal justice system needs to change. Overcharging by DAs is leading to a higher rate of felony convictions across the country.

How many are the result of instances like those experienced by my client?

Those of us in the criminal justice system need to be educating the public more about why overcharging is wrong & how important it is to pay attention to DA elections.

If you are a registered voter - know who your local District Attorney is & what their policies are.

We need discovery reform in Oregon – in my last trial there were police communications that were crucial to defending my client – and the state insisted they were not obligated to turn them over.

We had to get them & even then I had to prove to call center I had *DAs permission to obtain the discovery* & STILL some info was redacted (it should not have been.)

These communications were critical b/c the police officers did not disclose them in their reports – had we not obtained them we would have been missing critical info – and yet that DAs office insists they do not have to turn the info over. This is a problem. This needs to change.

I am proud of my young client who navigated the past 20 months with humor & sweetness & (mostly) good-naturedness even w/ all of the pressures of possible felony convictions that would have major negative impacts on his life hanging over his head.

I am angry that when defending him we had to work so hard just to get basic discovery that should have been given to us in the first place.

I am angry county policy thwarted our ability to settle this last case w/o a conviction.

I am thankful for all the support & assistance client & I received from other attorneys while navigating these cases. One of the biggest thank yous goes to @MotionKingOR for help with, you guessed it - motions, as well as help crafting special jury instructions & legal arguments.

@MotionKingOR Some last thoughts on all of this - Oregon's criminal justice system is broken. It is not acceptable to try to fix it with bandaids, we need sweeping change & an overhaul of the whole system, including demanding better from county policies & DA's offices.

@MotionKingOR Please contact your elected reps & share your stories of advocating for your clients & the roadblocks you face at every turn. Give them specific examples why discovery reform & policy reform is necessary.

@MotionKingOR Lastly, this work is hard & stressful & often thankless, we can get yelled at by clients, DAs, & judges, we face terrible odds all the time - so to all my fellow criminal defense attorneys - you are awesome & I see you & thank you for doing this work.

Hey @OregonGovBrown @Jennifer_for_OR @alissakg @michaeldembrow @multcomike @OregonDefense @OCDLAleg @ordems read this whole thread ⬆️⬆️about my experience defending 1 client over 20 months to see how easy it is for a DA to wreak havoc on a person's life. #CriminalJusticeReform

@OregonGovBrown @Jennifer_for_OR @alissakg @michaeldembrow @MultCoMike @OregonDefense @OCDLAleg @ORDems We need a complete overhaul of Oregon's criminal justice system. We need a mandated statewide discovery dissemination program so defense attorneys get ALL the discovery upfront - the experiences of fighting to get discovery is not unique to this case/client.

@OregonGovBrown @Jennifer_for_OR @alissakg @michaeldembrow @MultCoMike @OregonDefense @OCDLAleg @ORDems And we need a Prosecutorial Review Board composed of judges, defense attorneys and prosecutors so there is a fair & balanced check on prosecutors in place.

@OregonGovBrown @Jennifer_for_OR @alissakg @michaeldembrow @MultCoMike @OregonDefense @OCDLAleg @ORDems Cases like Nicholas McGuffin's wrongful conviction b/c of undisclosed evidence should convince the #orleg #orpol how important a consistent discovery distribution process is for criminal cases:

https://twitter.com/ForensicJustice/status/1201489730212433921