by Mark Wilson

"Recording grand juries will have a chilling effect on justice,” Clatsop County District Attorney Joshua Marquis inanely protested. “Why ‘fix’ a system that isn’t broken,” said the fox from deep inside the hen house!

Oregon law allows felony charges to be brought against criminal defendants by grand jury indictment or preliminary hearing. Yet prosecutors have historically opted for secretive, one-sided, grand jury proceedings that typically benefit only the prosecution over preliminary hearings.

Preliminary hearings occur in open court, with both the prosecution and defense presenting evidence. A judge presides over the proceeding and determines whether probable cause exists to charge the individual. Grand juries, on the other hand, are secretive proceedings in which only the prosecutor, grand jurors, and witnesses are present.

“Our state is one of the few in the union that have ‘secret’ grand jury proceedings,” according to criminal defense attorney Harry R. Carson. He hailed the new law, stating that it “is about fairness and transparency in the prosecution of those accused of crimes.” Carson added, “Defendants have a right to know what their accusers have said under oath. And if that testimony is different from what the witnesses say under oath during a trial, then the defendant’s attorney absolutely should have the right to closely question the witness about the discrepancies in their sworn statements.”

Defense attorneys have introduced bills during virtually every legislative session for many years, seeking to require recorded grand jury testimony. Prosecutors opposed the bills each session, and they routinely died a quick and shameful death—until this year.

On July 18, 2017, Oregon lawmakers passed Senate Bill 505, requiring an audio recording or official court reporting of grand jury testimony. It was signed into law on August 2, 2017 by Governor Kate Brown. When a true bill (indictment) is returned, the prosecution must release the audio recording or transcript to the defense. If an indictment is not returned, the grand jury testimony remains confidential and may not be released.

For the sake of transparency and accountability, lawmakers made an exception to that rule in a provision that is intended to apply to police shootings. When a grand jury refuses to indict a “public servant,” the prosecutor, public servant, or a member of the public may file a motion requesting a court order for production and release of a transcript of the grand jury proceedings. However, the prosecutor may seek a protective order on behalf of a victim or witness.

While the legislation is an important step towards transparency, lawmakers also made sure to expressly state that the failure to accurately record grand jury testimony does not affect the validity of the prosecution or indictment.

Marquis cried foul, claiming that the “clarion call” of proponents of the bill “is ‘transparency,’ a new buzzword that, ironically in this case, obfuscates the truth.” Marquis declared that “defense attorneys want a new tool to badger and intimidate witnesses, prolong litigation and tie up courts with procedural challenges.”

Marquis dismissed proponents of the bill as “criminal defense attorneys and a phalanx of well-financed lobbyists who oppose victims’ rights….” In truth, however, one of the chief sponsors of the legislation was Senator Floyd Prozanski, a longtime Lane County prosecutor whose sister was murdered.

Recording grand jury testimony “kind of keeps everyone on the up and up,” noted Prozanski. The current system of taking notes is insufficient because note takers filter information through their own biases, nor do they capture everything said verbatim.

When confronted with the cliché about a prosecutor being able to get a grand jury to indict a ham sandwich if that is what he or she wants, Marquis quipped, “What good would it do me to indict a ham sandwich? Because then I have to try a ham sandwich.”

Actually, in most cases, that is not accurate. Data show that nationally over 90% of felony cases never go to trial; rather, they are resolved via plea bargain. So if a prosecutor can get a grand jury to indict a suspect on multiple charges, his or her bargaining position and ability to intimidate are greatly improved when negotiating the plea deal.      

Faced with the prospect of a long prison sentence, potential defendants will often plead guilty to trumped-up charges in return for a guarantee of a shorter sentence. The relative ease with which a prosecutor can get a grand jury to indict is not as meaningless as Marquis suggests. Accordingly, upon being indicted by a grand jury, due process demands that the defendant have access to the proceedings.  

The new law requires that prosecutors begin recording grand jury proceedings in the state’s three largest counties—Multnomah, Deschutes, and Jackson—on March 1, 2018. The other 33 counties must begin recording their grand jury proceedings by July 1, 2019. 

Sources: www.oregonlive.com, www.statesmanjournal.com, Senate Bill 505 

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