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Changes In Oregon Criminal Justice Are 'Tectonic Shift' For Felony Cases

For as long as almost everyone who works in Multnomah County’s court system can remember, the District Attorney’s Office has used grand juries in felony cases.

But starting Monday that will change: District Attorney Rod Underhill will move away from grand juries, instead choosing to hold preliminary hearings.

Driving the change is a new law aimed at creating more transparency in Oregon’s criminal justice system.

Defense attorneys say the new system will give them a better sense of the state’s case against their clients. The shift is also leading to uncertainty and higher costs for the court system.

“We in Multnomah County have three grand juries numbered one, two and three that hear cases nearly every day and most hours of the day throughout the work week,” Underhill said last month on OPB’s Think Out Loud.

Here’s how those grand juries work: The grand jurors are selected from a jury pool by a judge to serve for about 30 days. The seven county residents hear facts from witnesses and prosecutors on a range of cases, from drug and property crimes, to assaults and murders, Underhill said.

Grand jurors don’t hear from the defendant or their lawyer.

“They’ll ultimately be asked to vote on whether to move the case forward, move the charges forward or not,” Underhill said, “or make adjustments relative to the charging decisions.”

But much of that changed Monday with the adoption of preliminary hearings.

Lane Borg, executive director of the Metropolitan Public Defenders, explained preliminary hearings are like a mini-trial before a judge.

“It’s a presentation before a judge in which the defendant appears, the prosecutor appears,” Borg said. “They present the evidence to the judge and the judge makes a determination about whether there’s sufficient evidence to justify binding the person over to trial.”

A new law the Legislature passed in the 2017 session requires grand juries be recorded. The law calls for Deschutes, Jackson and Multnomah counties to start by by March 1, 2018. The rest of the state’s counties must be in compliance by July 1, 2019.

House Majority Leader Jennifer Williamson, a Democrat for Portland, has sponsored the bill every year since she was elected in 2012.

At a hearing at the state Capitol in March before the Senate Judiciary Committee, Williamson explained that recording grand juries is about making certain prosecutors play fair. Most of the time grand juries indict a defendant.

Williamson testified that Oregon is one of very few states that rely on handwritten notes from grand jurors as the official record.

“For Oregon, the process to ensure equity and equality in the law and to uphold the most basic tenants of the criminal justice system, we must start with transparency,” she testified.

In June, before the law passed, Underhill wrote a letter to Multnomah County Presiding Judge Nan Waller. Underhill said that if transparency was the goal of the bill, he would move toward preliminary hearings.

“I believe that Oregon’s citizens must have confidence in their criminal justice system — particularly when the state charges someone with a felony,” Underhill wrote. “I also believe in responsible transparency.”

Here’s how Waller interpreted the letter:

“[Underhill] felt that really if it’s about transparency, preliminary hearings where a defendant is at the hearing, represented by counsel with the opportunity to cross examine any witnesses called to establish probable cause was the most transparent,” Waller said.

Underhill will start with drug cases. By early next year, he estimates 85 percent of all felony cases will shift to preliminary hearings. That translates into roughly 3,000 cases.

Some cases with vulnerable victims — between 500 and 700 — will still advance through the grand jury system, Underhill said.

“Think to yourself, child abuse cases, think to yourself human traffic cases, some gang cases — that kind of thing are going to be still going to grand jury,” Underhill said.

Preliminary hearings will be open to the public, while grand jury recordings won’t be a public record.

Deschutes County District Attorney John Hummel plans to stick with grand juries and will begin recording them in March.

“The reason for this is that the caseloads for deputy district attorneys in our office is too large to allow for the extra time that would be required to conduct preliminary hearings,” Hummel wrote in an email.

Jackson County has indicated they plan have about 25 percent of their criminal cases go through preliminary hearings.

“We’re at the beginning of a tectonic shift in criminal justice,” said defense attorney Borg.

The new system is a big win for defendants, he said, because it will give them a much greater sense of the prosecution’s case.

“What is going to happen once we go to preliminary hearings and recorded grand juries, is something we have not had,” Borg said. “We’re going to have more information about what witnesses are saying prior to that jury trial.”

Multnomah, Deschuties and Jackson counties will eventually testify before the Legislature to discuss challenges and costs associated with recording grand juries before the rest of the state’s county must comply with the law.

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