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Events put grand jury system in spotlight.

Byline: Jack Moran The Register-Guard

What happens in grand jury, usually stays in grand jury.

Secrecy has always been a central part of the centuries-old process, which Oregon and about two dozen other states still regularly use to screen criminal cases and decide if prosecutors have sufficient evidence to formally charge someone with a serious offense.

Critics of the system have long argued that it's inappropriate for the government to ask a group of regular citizens in a confidential setting to issue key rulings in criminal matters.

But a broader public debate about the grand jury's role in major cases - particularly those involving controversial police actions - has erupted in the two weeks since a grand jury in Ferguson, Mo., voted against charging a white police officer in the shooting death of an unarmed black teenager. The decision sparked protests and vigils in Eugene and other cities across the nation.

More questions about the process were raised Wednesday after a New York grand jury declined to indict a white officer whose chokehold led to the death of an unarmed black man.

Meanwhile this year in Lane County, the grand jury has issued more than 700 indictments, while voting just once to not bring charges in a case.

The single instance in 2014 in which the local grand jury declined to indict involved a case of alleged assault by a Eugene police officer, who repeatedly punched a handcuffed, drunken-driving suspect who was lying on the ground.

Lane County District Attorney Alex Gardner warned against looking at the indictment numbers and drawing any conclusions. He said prosecutors here rarely seek to go to a grand jury with cases that lack very strong evidence.

Gardner said his cash-strapped office is not adequately staffed to pursue "weaker" felony cases, so prosecutors instead drop them before they ever go to a grand jury.

"Lane County has a very large number of viable felony cases that go unprosecuted for lack of staff to investigate and prosecute," Gardner said.

Prosecutors say they also sometimes withdraw a case prior to a grand jury vote if it becomes clear during the proceedings that there is insufficient evidence to prove an allegation. Were they to let a grand jury make those decisions, there might be more cases in which the panel decides against issuing indictments.

Gardner said that, contrary to popular opinion, it's not "easy to indict a case unless there is ample evidence of a crime, and it's not difficult to indict a case unless there's inadequate evidence of a crime."

"It really is that simple, though I've met both cynics and uninformed who claim otherwise."

It's true that there's nothing too unusual about indictment statistics in Lane County. Numerous studies have shown that grand juries in the state and federal court systems almost always indict people after considering evidence presented to them by prosecutors in the secret proceedings.

No room for defense

What grand juries don't hear is any cross-examination of witnesses, since defense attorneys aren't allowed in the door. And although much has been made of the fact that Ferguson police officer Darren Wilson testified before the grand jury, it's rare for the presumed target of an investigation to appear before a grand jury.

Without a doubt, prosecutors typically guide the grand jury. Defense attorneys and their clients often don't even know when a grand jury is considering their case.

The grand jury process was originally crafted in part to protect people from malicious prosecution. But some critics assert the process can be abused by the government to "overcharge" suspects with more crimes or more-serious allegations than evidence clearly supports, giving prosecutors extra leverage in plea negotiations.

Perhaps even more frustrating to criminal defendants in Oregon is the fact that - in a departure from federal law - grand jury hearings aren't routinely recorded or transcribed.

That means the people who end up being charged with crimes don't get to find out what witnesses have told a grand jury, or determine if what those witnesses said in a confidential hearing conflicts with earlier statements they had made to investigators.

Past efforts to require Oregon's courts to make audio recordings of grand jury proceedings have stalled in the state Legislature.

"It should all be recorded, and that's probably my biggest concern" with Oregon's grand jury system, said Eve Oldenkamp, a Klamath Falls attorney who serves as board president of the Oregon Criminal Defense Lawyers Association.

Lissa Landau, a former Lane County assistant district attorney who now does criminal defense work for Arnold Law in Eugene, said recording grand jury proceedings would give "transparency, which in turn provides accountability."

"Grand juries are supposed to protect citizens from the power of the state to bring charges, and transcribing the proceedings would ensure that happens as much as possible," Landau said. "Grand juries, and the entire criminal system, should be conducted to find the truth and provide an open and fair process in doing so. More information and accountability can only help keep the process fair."

Another way to charge

Grand juries are not the primary method used in every state to charge people with serious crimes. In California and a number of other states, judges often listen to evidence during preliminary hearings and then decide whether sufficient evidence supports the filing of formal charges. In those very public proceedings, both sides in a case get to present arguments.

Until 1983, district attorneys in Oregon had the option of using either a secret grand jury or a public preliminary hearing. That changed after the state Supreme Court ruled that counties must follow a consistent policy to file felony charges. Since then, all district attorneys in the state have opted to use the grand jury process, which generally requires far less time and fewer court personnel.

Oldenkamp, for one, said a preliminary hearing limits the potential for a prosecutor to charge someone via indictment with, for example, second-degree assault, when a less-serious version of that charge may be more appropriate.

"Preliminary hearings would get rid of that possibility," she said.

Gardner, meanwhile, asserts that prosecutors in his office don't operate that way before a grand jury.

"The fact is, we tend to err on the other side and charge quite conservatively," he said. "In many cases, the close scrutiny of grand jury, and the discipline of grand jurors following their oath, results in charging more offenses."

Juror shares views

Lane County swears in two sets of grand juries every four weeks, with an oath that requires jurors to keep all proceedings secret.

One of the seven-member panels specifically reviews child abuse cases at the Kids' First Center in Eugene. The second group evaluates evidence in other serious criminal matters during proceedings held in a remote room on the fourth floor of the county courthouse.

For an offense to be charged, at least five of seven jurors must agree that the crime has been committed.

One local resident who recently served a month of grand jury duty said that unanimous votes were returned in every case screened by that particular panel.

The juror, who agreed to be interviewed on condition of anonymity because of the secret nature of the proceedings, said the experience illustrated that grand juries do operate independently, albeit under the guidance of a prosecutor.

"The DA told us, 'All we're trying to do is show you that we have enough evidence to take a case to trial' and that we weren't there to convict anyone," the juror said. "We could ask questions, and we did."

The juror said his experience as a Lane County grand juror differed with his view of what happened in Ferguson, where the prosecutor - in a move that provided the general public with a rare glimpse into the workings of a grand jury - released transcripts and other evidence that played into the closed-doors vote that cleared Wilson of any criminal wrongdoing. In the juror's opinion, the Ferguson grand jury appeared to be guided by the prosecutor to not indict the officer.

"The grand jury is a rubber stamp (for the prosecution), but that's by design," the juror said. "The grand jury's function is not to sort out the various questions concerning each case. That's the job of the trial jury. The grand jury does not determine guilt."

Follow Jack on Twitter @JackMoranRG. Email

The criminal process in Oregon

Felony-level criminal cases in Oregon often wind through the state Circuit Court system in the following order, although suspects, to expedite proceedings, sometimes waive their right to have a grand jury screen allegations made by police and prosecutors.

1. Police arrest a suspect after developing probable cause to believe a crime has occurred.

2. Prosecutors file "information" with the court, alleging violations of state law.

3. Defendants are arraigned on the information, with a judge reviewing a police investigator's "probable cause" affidavit.

4. A grand jury investigates the case and votes whether to indict.

5. Defendants return to court to be arraigned on the indictment, and typically plead not guilty to the charges. Trial dates are set during these court appearances.

6. Defendants either admit guilt after agreeing to a plea deal, or require prosecutors to try and prove guilt at a trial.

7. If a defendant is convicted of a crime, a judge hands down a sentence.
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Title Annotation:Courts; Decisions in two national cases bring up questions about the local process
Publication:The Register-Guard (Eugene, OR)
Geographic Code:1U9OR
Date:Dec 7, 2014
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