Another Believer / cc 3.0

Big changes are coming to Multnomah County’s most high-profile criminal cases, but nobody knows how much strain they’ll put on the court system.

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This summer, the Oregon state legislature passed a law requiring prosecutors to record and provide transcripts of grand jury testimony to defendants. For the first time in the state, those accused of felonies, and their attorneys, would get a glimpse of the extremely secretive and oft-criticized process used to indict them. 

Now, in a shift that’s raising questions throughout the justice system, Multnomah County District Attorney Rod Underhill plans to drastically cut the use of grand juries. By next year, vastly more transparent preliminary hearings will be the predominant first step in felony cases. 

The difference between the two methods is stark.

Prosecutors convene grand juries behind closed doors, and, until the recent law passed, created no record or transcripts of the proceedings. In secret, prosecutors present evidence and get testimony from witnesses for a group of seven citizens, who then determine (almost always affirmatively) if there’s enough evidence for an indictment. 

Preliminary hearings accomplish the same thing in open court. Within a week of a suspect’s detention on felony charges, prosecutors and defense attorneys present their cases before a judge, who determines if there’s probable cause to move the case forward. The county previously used preliminary hearings, but shifted exclusively to grand juries in the early 1980s.

The phase-out of grand juries begins with drug cases this fall. By the middle of next year, the prosecutor’s office expects more than 80 percent of all felony cases, around 3,000, will go through preliminary hearings. Prosecutors expect about 600 to 700 cases—“sensitive” cases with human victims—will continue to go through a grand jury in 2018. 

Underhill laid out his office’s planned shift in two letters to Multnomah County Presiding Judge Nan Waller this summer, in anticipation of legislators mandating grand jury transcripts. The move eases the district attorney’s obligation to record and promptly provide transcripts for a few thousand cases a year. The Mercury first reported on the district attorney’s plan, and existence of the letters, on September 15.

“I believe that Oregon’s citizens must have confidence in their criminal justice system—particularly when the state charges someone with a felony,” Underhill’s June 22 letter to Waller states. His follow-up letter two weeks later reads: “Today, I believe that responsible transparency includes a practice where citizens, if they choose, can see and hear in open court what is occurring, so that they can form their own opinions on a particular matter.”

But Underhill’s decision will have a major impact on criminal justice in Oregon’s largest county.

Preliminary hearings are a significantly faster way to prosecute a case, and give defense attorneys the chance to cross-examine witnesses. But, of course, that means defense attorneys actually have to be at the hearings. They’ll have to prepare for a case’s first major court appearance in less than one week, compared to about five or six weeks under the grand jury system.

“It generally means more work up front, more court appearances, without compensation from the state,” says Keith Rogers, executive director of Multnomah Defenders, a non-profit that contracts with the state to defend indigent clients.

Some public defenders worry about the switch to preliminary hearings, describing an impossible scenario of underpaid and overworked attorneys having to do more work for the same amount of money. Public defenders’ offices are in the middle of a two-year contract with the state, negotiated before anybody knew they’d have to do the extra early appearances. 

Jon Martz, a local public defender for those accused of the most serious felonies, said cases “will back up like an old toilet” because defenders won’t have enough time to properly represent clients at these early hearings. Preliminary hearings have to be held within a week of a suspect’s detention. If not, defendants are freed until one can be held. That’s likely to happen, said Martz, who doubts there will be enough public defenders available.

Another cause of anxiety is that nobody knows how long preliminary hearings will take. Waller tells the Mercury that, beginning in November, one judge will preside over preliminary hearings for half of the day, five days a week. After a while, she says, the courts should know how much time and resources are required.

“Everybody’s just speculating until we start doing it,” says Lane Borg, executive director of Metropolitan Public Defender Services. “Whether it increases caseload, decreases caseload, or is caseload-neutral, we do know it’s going to speed up the process in terms of our being in court.”

Borg explains that felony cases may be resolved sooner under the preliminary hearing system: A judge may have a more skeptical threshold for probable cause than a grand jury, and witnesses under cross-examination may not perform as well as they did under the state’s gentle questioning in a grand jury setting.

Borg said it’s also possible that cases will be sped up because defendants will have a greater understanding of the evidence, making them more likely to quickly accept a deal with prosecutors. Many indicted defendants, he said, are in denial about just how strong the state’s case is. Preliminary hearings should change that. 

“There’s the saying ‘you can indict a ham sandwich through a grand jury,’” Rogers says, “but when you actually have open court, the defense sometimes wins those cases, sometimes they get settled, and sometimes charges are reduced. There is some room for possible streamlining of the system.”

Preliminary hearings begin on November 1 with felony drug possession, manufacture, and distribution cases. “Non-person” victim cases like these represent the majority of felonies in Multnomah County.

In January, felony property crimes—robbery, arson, vandalism, and the like—will be the next group no longer included in grand juries, Borg says. 

“We have developed a thoughtful approach,” Underhill wrote in his July 2 letter, “balancing the need for reasonable transparency, the genuine concern for protecting, as best we can, vulnerable victims and witnesses, legal considerations, and practical and logistical issues.”