DA Mike Schmidt at a 2020 press conference in Portland City Hall.
DA Mike Schmidt at a 2020 press conference in Portland City Hall. Nathan Howard / Getty Images

Multnomah County District Attorney Mike Schmidt has hired a private practice attorney to review the death investigation of Israel Berry, a man killed by a Gresham police officer nearly a year ago.

Berry, 49, was killed by Gresham police officer James Doyle on May 31 in Southeast Portland. Almost a year after his death, the details surrounding the incident remain hazy. What we do know: Doyle and other Gresham officers were assisting Portland Police Bureau (PPB) officers that Sunday evening due to PPB's preoccupation with racial justice protests occurring at the same time. Around 9:30 pm, Doyle and several Portland officers responded to a 911 call of a disturbance near SE Powell and 122 Ave.

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At the scene, they discovered Berry driving up and down the street, honking his car horn. According to witnesses, police used their vehicles to block the street, preventing Berry's driving. Not long after, officers pointed their weapons at Berry in his car, and Doyle pulled the trigger. Berry was pronounced dead at the scene. It's still unknown if Berry had a weapon on him at the time, or what other information prompted Doyle to fire. Doyle has been on paid administrative leave since the shooting, and Multnomah County has yet to convene a grand jury to determine whether Doyle was within his legal rights to use force against Berry.

Schmidt has appointed local criminal defense attorney Samuel Kauffman to serve as a "co-lead prosecutor" in collaboration with Multnomah County prosecutors in reviewing Berry's death investigation and presenting the case to a grand jury within the next month.

In an interview with the Mercury, Schmidt said that he was briefed on the Doyle case shortly after entering the DA's office in August 2020.

"And immediately, I was thinking, 'How am I going to handle my first death investigation involving law enforcement?'" said Schmidt, who won his May 2020 election for DA with a platform to reform how local prosecutors treat police death investigations. "These are the most critical cases for our community, and require an outside set of eyes to challenge potential bias."

Police accountability advocates in Portland, like the Albina Ministerial Alliance and Portland Copwatch, have long called for the DA's office to appoint attorneys who aren't employed by the DA to investigate officer shooting cases that head to a grand jury. Since county prosecutors rely on officers to assist other investigations, critics say there's a clear conflict of interest when prosecutors are asked to investigate—and perhaps, charge—an officer. Schmidt agrees.

"Prosecutors and police work together hand and hand every day," he said. "And over time, some of them tend to see things the same way. That's why I knew I had to bring in an outside perspective."

Before contacting Kauffman, Schmidt said he first reached out to the state Department of Justice, which is overseen by Attorney General Ellen Rosenblum, to ask their prosecutors to bring that outside perspective. Rosenblum declined.

Schmidt said he decided to bring in an outside attorney after discussing alternative options with his office's top prosecutors. It isn't a strategy the county has relied on in the past.

"Necessity is the mother of invention," said Schmidt, of the decision.

Kauffman, who agreed to Schmidt's offer in March, has more than 25 years of experience working as a criminal defense lawyer in Portland, where he heads Kauffman Kilberg LLC.

Schmidt said he's looking forward to hearing how Kauffman presents the case, in comparison to how a county prosecutor might address it.

The Wednesday announcement comes a week after Schmidt announced that his attorneys will be partnering with prosecutors from the state attorney general's office to investigate the fatal shooting of Portland man Robert Delgado by Portland police officer Zachary Delong last month.

A week prior, Delgado's family called on Schmidt and Attorney General Rosenblum to appoint a special prosecutor to oversee the investigation into Delgado's death. According to Schmidt, he was already thinking about asking Rosenblum to assign a state prosecutor to the case before the family's request.

The investigation into Delgado's death is still ongoing, Schmidt said, and he's not sure when a grand jury will be convened to analyze Delong's use of deadly force.

"It's a really interesting moment to have two of these alternative approaches going on side-by-side," said Schmidt. "Both are novel approaches. This is a learning experience."

Schmidt said that, regardless of the outcome of either case, he hopes the community sees them as more legitimate and equitable investigations. He framed both of these approaches as a response to the calls for police reform made during Portland's racial justice protests in 2020.

Dan Handelman, founder of Portland Copwatch, said the success of these investigations can be measured in the grand jury transcripts, which are often made public after a jury's decision is final. Handelman said that in past transcripts, he's noticed county prosecutors rely on leading questions when questioning officers and often paint officers in a sympathetic light to the jury.

"Or," he said, "sometimes, there are obvious questions that prosecutors don't ask."

Handelman said Kauffman's lack of bias can hopefully be measured in the way he presents evidence to the grand jury.

Juan Chavez, the director of Oregon Justice Resource Center's (OJRC) Civil Rights Project, cheered Schmidt's decision in a media statement Wednesday.

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“This is the second time in recent days that DA Schmidt has had to create a special process to review a case of a police officer killing someone in our community," wrote Chavez. "We applaud and encourage his commitment to seeking transparency and independence in these investigations and possible prosecutions."

Yet Chavez also asked the Oregon Legislature to look to the future by creating a permanent special prosecutor’s office that could investigate killings by law enforcement officers. State lawmakers declined to advance a bill introduced in the state House that would do this last year.

"We should not have to rely on individual district attorneys to do the right thing, indeed, we cannot always rely on them," wrote Chavez. "We call on legislators to take action during this session to correct this problem."