GRAND JURY BRIEFINGS STIR LEGAL ISSUE

Oregon Defense Attorneys Challenge The Fairness Of Unnamed Witnesses
Giving Information To Jurors

GRANTS PASS -- Grand juries in at least six Oregon counties routinely
received briefings from off-the-record witnesses about drugs before
weighing evidence in specific cases. Now criminal defense attorneys
across Oregon are preparing to challenge felony indictments from grand
jurors who heard such "indoctrination testimony."

The uproar over grand jury prejudice, which began last week when
defense attorneys filed motions for dismissal of 300 criminal cases
pending in Josephine County Circuit Court, has revived calls for
reform of the secret process in which a handful of citizens decide who
shall stand trial and for what crimes.

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.

Prosecutors say the secret briefings provide an efficient way of
answering questions from grand jurors not familiar with the drug culture.

"It seemed easier to answer some of these general questions in one
sitting than have them come out piecemeal over the course of several
weeks," said Mark Huddleston, Jackson County district attorney. "We
see more drug cases than any other type, and that's the reason this
was started for drug cases."

But defense attorneys say however well-intentioned, the unsworn
briefings can prejudice the grand jury and undercut their job of being
an independent check on the power of prosecutors.

"I think it was done not with an ill intent but more without thinking
it through," said Bert Putney, administrator of Southern Oregon Public
Defenders. "The danger is in not having seven fair and impartial grand
jurors. Just like other jurors, that's what they're supposed to be.

"There are specific statutory rules guiding what is done in the grand
jury," Putney said, "and many people feel they're not followed if
these indoctrinations are done."

Defense attorneys in Jackson County plan to challenge indictments from
grand juries that were briefed on drug types, packaging and
terminology from drug investigators who were not sworn in as witnesses
in specific cases or listed as witnesses on the indictments.

Similar moves could follow in Clatsop and Marion counties, where grand
jurors received unsworn briefings on drugs, and in Deschutes County,
where grand jurors heard unsworn briefings on drugs, sexual abuse and
domestic violence. Unsworn drug briefings to Douglas County grand
juries ended 18 months ago.

"We educate them (now) through the testimony of the officer, who of
course is listed," said Rick Wesenberg, Douglas County assistant
district attorney. "We have simply done it on a case-by-case basis
with an officer."

Prosecutors in Josephine County, where grand jurors also heard
presentations on sexual abuse, and Jackson County have stopped the
grand jury briefings. But the district attorneys of Deschutes and
Clatsop counties plan to continue.

"I don't believe it is an illegal practice," said Mike Dugan,
Deschutes County district attorney. "Grand juries have been going
through orientations not only from prosecutors but from presiding judges."

"I absolutely intend to continue," said Josh Marquis, district
attorney of Clatsop County and president of the Oregon District
Attorneys Association. "This is a very common practice all over the
state."

Jury orientation is standard procedure in most Oregon jurisdictions.
Washington County District Attorney Bob Hermann's orientation topics
are typical: when jurors meet and how often, what is expected of
jurors, the laws governing grand juries, courthouse procedures and
what kinds of cases jurors may hear.

An informal poll of district attorneys in 24 of Oregon's 36 counties
found that few state's prosecutors provide grand juries with briefings
by unsworn experts. Counties that do not include the unsworn briefs
are Benton, Clackamas, Coos, Curry, Harney, Jefferson, Klamath, Lake,
Lane, Lincoln, Linn, Multnomah, Polk, Tillamook, Union, Umatilla,
Wallowa and Washington.

"We do a real similar thing. We just do it through utilization of
officers and other witnesses who appear on those cases," said Tim
Colahan, Harney County district attorney. "It's done through a witness
who is named."

"They get whatever they need in the course of sworn testimony," said
Doug Harcleroad, Lane County district attorney.

Oregon law requires prosecutors to test their criminal cases before a
grand jury or at a preliminary hearing. In a grand jury, seven
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.

However, Oregon law doesn't require that the grand jury's secret
proceedings be recorded, which helps explain why Josephine County's
unsworn drug briefings, which began as early as 1989, weren't
discovered by defense attorneys until last month.

"It may have been entirely above board," said Wayne T. Westling,
University of Oregon law professor. "But nobody can honestly answer
that question -- were they stacking the deck? I don't know. I don't
know what was said."

"It's so rare for a grand jury to say, 'Wait a moment. Isn't there
another side of this story?' They don't say that, and they don't know
they can say that," said Ingrid Swenson, a Portland public defender
and legislative lobbyist for the Oregon Criminal Defense Lawyer's
Association. "They've become a rubber stamp, and I don't think anybody
would disagree with that. That's exactly what they are."

Oregon's defense lawyers have introduced grand jury legislation that
would require recordings of all proceedings; inform grand jurors of
their rights to call witnesses, see evidence and indict on lesser
charges; notify subpoenaed witnesses who are investigatory targets;
and prohibit prosecutors from introducing unconstitutionally obtained
evidence.

In the meantime, upholding the independence of the grand jury falls to
Oregon's 36 elected district attorneys.

"It's our responsibility to make sure it's a fair and equitable
process. It's up to the district attorney," said Ed Caleb, Klamath
County district attorney. "We're very careful of the grand jury
process because we're worried about those types of issues."