Deputy District Attorney David Hannon had a surprise waiting
for him in Room 536 of the Multnomah County Courthouse last Wednesday
morning, January 7, in the form of attorney
Elden Rosenthal.
Hannon, whose salary is paid by the city as part of its
controversial Neighborhood Livability Crime Enforcement Program
(NLCEP), had been expecting to argue the constitutionality of the
program with Lisa Pardini, Brian Schmonsees, and Spencer Hahn, three
public defenders he has met in court before.
Instead, without warning, Hannon was facing the prospect of making
the city’s case for the NLCEP’s constitutionality against Rosenthal,
one of Oregon’s most celebrated and experienced trial attorneys, whose
resumé includes winning $12.5 million in damages against White
Aryan Resistance leader Tom Metzger for inciting skinheads to kill
Ethiopian immigrant Mulugeta Seraw in 1991.
Several observers agreed: Hannon looked pretty scared.
Pardini, Schmonsees, and Hahn are each defending clients who have
been charged with felonies for residue drug possession, instead of
standard misdemeanors, because their names are on the city’s 350-strong
secret list of downtown offenders. The three defense attorneys have now
partnered with Rosenthal, whose services were secured by the American
Civil Liberties Union (ACLU) of Oregon, to argue before Judge Dale Koch
that the secret list is unconstitutional.
Further hearings are expected in late February, with a verdict
expected from Koch sometime in March.
The Mercury first uncovered details of the secret list last
April, when it emerged that 52 percent of those on the then 408-strong
list were African American—even though African Americans make up
only six percent of the local population [“Blacklisted,” News, April
24, 2008]. In May, the Mercury discovered that the criteria for
getting on and off the list aren’t written down anywhere [“The Policy
that Wasn’t There,” News, May 22, 2008].
Rosenthal grilled Jeff Myers—the Old Town cop who first came
up with the program in 2003—about its details in depth, over a
day and a half of hearings last week. Hannon, meanwhile, tried to get
Myers to talk about the success of the program in reducing downtown
crime, but Rosenthal continually objected to Hannon’s line of
questioning on grounds of relevance.
“The issue is not how successful or not the program has been,” he
argued. “The issue is whether or not secret lists are
constitutional.”
To the defense, the secret list seems to be a classic bill of
attainder, which is forbidden by the Constitution: The state cannot
single out citizens for harsher treatment because they are on any list.
The defense also maintains that the list may violate equal protection
and equal privileges protections in the federal and Oregon
Constitutions—the government can’t treat people differently,
under the law. Furthermore, the fact that the list is secret, and there
is no way for a person to challenge one‘s status on the list,
would seem to violate constitutional due-process protections.
“In our system, secret police lists have no place, and that’s what
this is about,” Rosenthal told the Mercury last Thursday,
January 8. He declined further comment on the case for the time
being.
Myers told the court that the NLCEP program had been “put on
steroids” in the fall of 2007, following former Mayor Tom Potter’s
decision to sunset the controversial Drug-Free Zones program, after a
consultant’s report damned their racial inequity.
Officer Myers was also ordered by Judge Koch to review his boxes of
information relating to the list and produce—free of
charge—any information relating to the enhanced prosecution
aspect of the list. Previously, the police bureau would only agree to
do this for the defense if they were paid over $3,000 [“Officer
Pandora’s Boxes,” News, Dec 25, 2008].
“As much as I knew about what was going on, this was very
enlightening in terms of how we’re focusing on these particular
offenders,” said Judge Koch at the conclusion of the hearing.
“Regardless of how everything works, the issue is whether it meets
statutory and constitutional muster, and we’ll resolve that when we
come back in February.”
City Commissioner Dan Saltzman, who has taken over responsibility
for the police bureau under Mayor Sam Adams, wrote an editorial for the
Portland Tribune praising the NLCEP program on December 18,
2008.
“Dan’s very supportive of the program,” says Saltzman’s chief of
staff, Brendan Finn. “But obviously this is a court proceeding and we
will await a verdict to see how we should proceed.”