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July 1st, 2009 WW Editorial Staff | Q & A
 

John Kroger

Oregon’s Attorney General Answers WW’s Questions on The Adams Report.

     
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Attorney General John Kroger came to WW for a wide-ranging interview Tuesday about his investigative report into Mayor Sam Adams’ involvement with Beau Breedlove.

WW will be putting daily video installments of the 90-minute interview throughout the upcoming week. Meanwhile, here are transcribed excerpts of his interview.

WW: Let’s get started. Did you say you wanted to give a brief explanation first?

John Kroger: I just want to take five minutes and walk you through what we did, what our charging decision was. And then you guys can fire away with whatever questions you have. The case started for us on January 21, when we got the referral of the investigation from the DA and Chief of Police. When we have an allegation of potential public corruption by a local official, it’s very common—for law enforcement to refer that to the Department of Justice. And so it’s not a case I asked for, and frankly would’ve preferred not to have it.

Who established the five key questions you cited in your final report?

The referral basically said we’d like you to do an investigation into matters that had come to public attention between Breedlove and Adams. So we opened our investigation. We picked an experienced investigative team. We took Ron Nelson, who is our most experienced investigator and the lead investigator.

Their mission was very simple; it was to go out and do whatever they thought was necessary to determine whether the Mayor had violated the law. And we didn’t circumscribe in any way what they were looking at. They did 57 interviews with 57 different witnesses. On a number of occasions they went back and did additional ones. They went back and reviewed records at City Hall. They reviewed records from Adams’ campaign. They obtained as many electronic devices as we could, either email or documents or text messages. Once all that was done, which was roughly 4 1-2 months into the investigation, we made our charging decision.

This is something I’ve done several hundred times before. For me, it’s a very routine decision on how you proceed on a charging decision. And it’s very simple; you’re really looking at one standard, which is proof beyond reasonable doubt.When we did that, what we had was effectively one witness whose account had a lot of credibility issues. So very quickly, there was a unanimous decision amongst the investigative team that there was not proof beyond reasonable doubt and thus a charge was not appropriate.

The standard whether you will take a case to a jury is whether you have proof beyond reasonable doubt. But there’s another standard that’s applicable. The canons of legal ethics, the rules of professional responsibly, stipulate that a prosecutor is ethically prohibited from bringing a charge that is not supported by probable cause. Probable cause is a prudent person’s reasonable belief that a crime has been committed.

In a very important moment in our charging decision, I asked our lead prosecutor, I said, ‘I know we don’t believe we have proof beyond a reasonable doubt, do you have probable cause?’ And the answer was ‘no.’ And the reason that is significant is if I had gone and said, ‘well I wanted to charge the mayor anyways,’ the proper response would’ve been to write a letter to the Oregon State Bar and ask that I be disciplined or disbarred. The canons are very clear. If you don’t have probable cause, you cannot have a criminal case. We did not have proof beyond reasonable doubt here, and we did not have probable cause. So the charging decision for the investigative team literally is close to a no-brainer as possible.

Just to be clear here, probable cause would’ve been the standard to take something before a grand jury?

This was a misdemeanor case. The only evidence we have at all is [in regards to] a misdemeanor. Oregon prosecutors do not use grand juries except for felony cases. So we would’ve not used a grand jury in order to charge him with a misdemeanor ... The Supreme Court has said that—it’s not very helpful—there’s not a single definition of probable cause. A ballpark definition, there’s more than one, is reasonable belief of a prudent person that a crime has been committed by a particular individual.

You can have cases with probable cause based on one witness. But they tend to be either a single witness that you can corroborate; you have another witness or additional witnesses or additional physical evidence or documents or something else to corroborate their statements with.

So you can’t put a numerical scale on this, on a scale of 1 to 10 with 10 being you have photos of him committing a crime, beyond a reasonable doubt is an 8, probable cause is a 5.1…

You can’t, other than to say it’s obvious that probable cause is a lower standard than proof beyond reasonable doubt. So we looked at all that evidence and we made our charging decision. The next step for us was to prepare a report for the DA and the chief of police. And again, this is a traditional practice of the Oregon Department of Justice, when it’s been referred a public corruption case by a law enforcement official, to produce a report back to them that explains our decision not to seek charges. If we seek charges, we don’t provide a report, we call them and say we’re going to seek charges and ask them how they want to proceed.

Was there any other written communication between you and Portland Police Chief Rosie Sizer and Multnomah County DA Michael Schrunk saying here’s the report and here’s some additional elaboration?

No, I called them the night before and said the report is going to be completed and would you like it tonight or first thing tomorrow when it’s going to be released to the media and to the public. They said they were happy to take it in the morning. At that point, all I did was give them an oral presentation: literally in 30 seconds we determined that we don’t have sufficient evidence to charge and we’ll lay that out in the report.

The purpose of the report was to provide the referring officials with my decision as to what we decided to do and my rationale. So it explains as concisely as possible, but with every material fact that influenced my decision, why we were not seeking criminal charges against the mayor. I think some people wanted the report to be something else. Some people wanted the report to be an expose; some people wanted the report to be a voluminous binding of all the facts we uncovered. That is not the purpose of that report, and that’s not what I wanted to do. We provided all that information publicly, so that the media and everyone else could pick through it and determine what they thought was important or not. They might think other things were more important than I did, but what that report does is provide in as concise fashion as possible, precisely the reasons why there weren’t sufficient facts to charge the mayor with a crime.

We really started the investigation with three things we were looking at. We looked at three things originally, which were a possible felony charge (sexual intercourse with a minor), a misdemeanor charge (sexual contact with a minor), and a third official misconduct charge that predicated on the allegation that the mayor hired [Amy] Ruiz in order to stop the Portland Mercury from reporting on the Breedlove story. So those are the three theories we started with. As we investigated further, we did a fair amount of brainstorming about other things involved in this situation that could be illegal.

The fourth and fifth were really things I came up with, imagining what facts — if true — would lead us to believe that a crime had been committed. The two we came up with — one was if the mayor misused public resources as part of his campaign to misinform people, which would be a crime. For example, the governor of South Carolina using public resources like a car to go to the airport to sneak away might be viewed as a misuse of public resources for private interests. So we looked at that theory and we asked whether there was an intentional effort to mobilize public resources in an impermissible and unauthorized way. Again we came up with nothing there.

The other theory we considered was an old case where a politician lied in their fundraising materials. The theory was, theft by deception. You’re obtaining something of value; a campaign contribution under false pretense. The question was ‘did they make false statements for some kind of fundraising solicitation.’ What I was imagining in my mind was a fundraising mail piece or thing handed out to donors, saying “Sam’s been falsely accused of something. Now’s the time to rally around and show you have faith in the mayor’s office. Send us a check.”

I’m far from an expert on Oregon statutes, but I wouldn’t be surprised if in somewhere in Oregon law, there’s a law that says public officials shall not coerce another individual to lie, particularly if there’s been an exchange of money. You knew beyond a reasonable doubt that Sam asked Beau to lie. You knew beyond a reasonable doubt that Sam gave Beau money.

Well we could’ve added lots of other things for which we didn’t have a lot of evidence. What we had was that the mayor asked Breedlove to lie about his personal life and then the mayor gave Breedlove a loan. Is that enough to bring a criminal charge for extortion or obstruction of justice? It’s not.

What you’d have to establish is that there’s a quid pro quo, that the point of providing money to Breedlove was in return for Breedlove making false statements. With respect to obstruction of justice, there was no investigation at the time, so that wouldn’t hold.

A public official asking someone to lie in such a fashion that allows a cover-up to occur—

The challenge is that making false statements in a campaign are covered by very specific statutes. The problem we had that for the criminal statue to apply, the false statements have to be made in a required filing, which means in your filing when you’re announcing that you’re running for office or in your Voters Pamphlet statement. If the mayor had made a false statement, if he had said in his Voters Pamphlet statement that, ‘oh I never had any kind of sexual relationship with Beau Breedlove at any time,’ that would be a prosecutable offense. But the criminal statute requites the false statement made during a campaign to be in one of those required files.

We’re not talking about Sam lying, we’re talking about Sam perhaps asking another individual to lie for Sam’s benefit in exchange for money. None of what you talked about covers that. It’s hard for me to believe there isn’t an ORS…

There is not, to my knowledge, any other statute that applies to these facts. If the money was bribery money or extortion money of some sort, if you could prove that, then there would be more to work with. What we have is false statements and a loan. The only two witnesses who can characterize the exchange of money, both claim that it is a loan. We have no evidence it was not a loan, that’s simply not something that can give rise to criminal filing.

Adams helped Breedlove get a job for which he was not qualified. A job in which he’s got access to financial information and so on. You guys reported that Adams gave Breedlove money on two occasions. How common was this, was he getting jobs for lots of people? Was he loaning money to lots of people?

Those kinds of questions, if you give them to us in writing, we’ll get back to you with answers.

Before we move out of this area, I want you to know that the investigative team was encouraged to think as broadly as possible about violations of the law. And if we had stumbled upon anything that we thought was a viable criminal charge beyond those five areas, the investigative team would’ve followed up. They dug as thoroughly as they thought was reasonable. Certainly, with respect to those financial payments, one of the things that was discussed internally was ‘is it a loan?’ Is it some kind of payment as hush money to Breedlove from the mayor? Or is it extortion from Breedlove to the mayor? All of those are potential interpretations of what we’ve got. The challenge here is there are no emails, there are no text messages that tell very much about that transaction. What we’re stuck with is two witnesses quite honestly, both of them have credibility issues with respect to the entire area that we’re discussing. Both of them say it was an honest loan. There’s nothing a prosecutor has to charge them with.

In the conclusion of the final report, you talk about Breedlove’s attempt to gain personally from matters relating to his involvement and his prior criminal record. I assume that refers to the Unzipped magazine, which he received an undisclosed payment for.

The three credibility issues we talked about are consistent statements, the fact that his motive would be challenged in court because he sought to gain, and the fact that he had a prior felony crime, because it is a crime of deception, would be used to cross-examine him.

So he poses nude for a magazine four years after the alleged… whatever happened. Similarly, his felony conviction, walking out of a department store with clothes under his arms, happens after. So you’re disqualifying him in part for two bad choices he made, but choices he made well after the events in question.

What we were doing in the report is I was explaining to a DA, a trained, experienced prosecutor, about why I would not try a single-witness case. What the report goes on to say is here’s the things that will be raised in court. It is indisputable that those issues would be used very aggressively to show that he’s got a prior record of lack of trustworthiness, the inconsistent statements prove that he’s willing to say whatever wants, and that he’s attempted to gain, both by trying to get press to cover him and then using the coverage that he got to pose for a magazine.

It’s not a question of my disqualifying him. What I’m saying in that report is we have a one-witness case. A responsible prosecutor would not bring a one-witness case under these circumstances.

But as a prosecutor, you’d have the ability to say OK you’re trying to impeach a guy based on something he did four years after the alleged crime.

But what you’re impeaching is their current statement in court. When the defense attorney comes in, they’re saying your witness testified in court today X, Y and Z. Here’s why we know this person is not trustworthy: they said the opposite a year ago. They committed a crime of deception two years ago. And they sought to gain a year ago. All those things are used not to impeach the past statements but to impeach the present testimony of a witness in court.

Wouldn’t you typically go after the motive? I mean yes they may have a shoplifting felony in their past, and yes they may have posed nude for money, but at the end of the day… you’ve got experience where the witnesses who could be impeached by the other side because they were going to get some laxity on their jail sentence. What was the motive for Breedlove?

If we charged this case, Bob Weaver would’ve done exactly what I lay out in that memo. When Bob sent us that letter that lays out his view of the case… I never read that letter. Our investigative team did. I didn’t need to see what Bob had to say about the case. The reason that the letter tracks my analysis is because any experienced criminal lawyer would look at this case the same way: these are the things the defense is willing to use. You have a one-witness case. Is it a witness who’s going to hold up in court, or are things going to be used to impeach the witness. And the three things to impeach the witness are those three things. And that’s why they’re in the report.

What’s Breedlove’s motive for not telling the truth?

I think Breedlove’s had different motives at different times for making various statements.

What would one of his motives have been at any point for telling a lie?

What I think a defense attorney would do in a court of law here would say that Breedlove had lied about whether the mayor had committed a misdemeanor in order to attract public attention to himself so he could get things like the cover shoot at a magazine and to be paid for it.

That would be after the fact.

You guys are fixated on things after the fact. The thing being impeached is his statement that day in court. What a DA does is say, okay the witness came in and made this statement. If this thing went to trial, it would go to trial in December of 2009. So on Dec. 6, 2009, the witness would come in and make the statement. And then, why do you know this witness can’t be relied upon? And they would go through all the things, and one of them would clearly be that the witness sought to get the media interested in the story and then sought to gain from it.

It’s not an ethical judgment about what Breedlove did. I’m uninterested in the ethics or morals of him talking to the press or being on the cover of the magazine. None of that is my business. What is my business is how is this witness going to look in court? And the answer to that is that this witness would not be a credible witness in court.

Other prosecutors have told us that all kinds of witnesses tell all kinds of inconsistent stories. In sex cases, you often have potential victims who are drunk or who were in a place they shouldn’t have been.

Sure. And I’ve put on witnesses who’ve killed people. But I was confident that those witnesses were telling me the truth, when we interviewed them. The challenge with Breedlove is that the investigative team was not confident the version we were getting was the truth. And I think if you ask prosecutors would you try a one-witness case who you were not confident was telling the truth, and in fact had deep reservations that they weren’t telling the truth, I think any responsible prosecutor would say no.

In an earlier draft, it says Adams publicly claimed to be cooperating with this investigation, but his legal team dragged their collective feet throughout. They requested access to Adams’ phone records Jan. 29, but not until April 6 was everything turned over. Is that obstruction?

No.

Why is it not in the final report?

The first draft was done by the investigative team, and then it went through successive drafts, other people editing the document and then finally me editing the document. The most important edit was my edit. Because at the end of the day, this is my report to the DA and to the chief as to why I’m bringing the case or why I’m not. For me, the facts about Adams’ cooperation were not really relevant to my charging decision. However, we put the information about the delay in the appendix because we wanted to highlight for people that this was an issue the public would be interested in, they could get the facts and judge for themselves whether it was appropriate for the mayor to do that. I wanted to highlight that the most important thing we asked the mayor to do was submit to an interview. And that’s why I added that. I wrote that. I wanted to be fair to the mayor. I wanted to accurately describe his cooperation …The other thing is the delay in turning over particularly the computer. It’s very clear that this annoyed our investigative staff. The reason this didn’t amount to hindering the investigation is that we could’ve fixed the problem immediately. We could’ve used a grand jury subpoena and immediately subpoenaed the computer. We didn’t because then the contents of the computer would be covered by grand jury secrecy. And one of the basic things that we discussed very early on was whether we’d make this a grand jury investigation or not. The investigative team did not want to make it a grand jury investigation. The reasons were two-fold. Part of it is that in Oregon you typically don’t go to a grand jury until you think you have sufficient evidence to charge. More important to me is I knew this was going to be a case where there was going to be an immense amount of public scrutiny. And so we decided not to do a grand jury investigation so that every single fact that we came up with during the investigation could be made available to the public, so that people could look at exactly what people told us, there wouldn’t be stuff covered by grand jury secrecy. So, if we subpoenaed it, we could’ve gotten it faster. The reason Bob Weaver was not turning over that computer was very simple. He wanted to know what was on it before he turned it over. Did I think Bob Weaver was going to destroy the contents of that computer? No. Bob Weaver has been a perennial finalist for a position as a U.S. District Court Judge because he as a great reputation for integrity. Did I think the lawyers were going to obstruct justice? No. I thought they would hand this material over to us..

What would’ve been the conduct that would’ve qualified as obstruction of justice? Dragging your feet and refusing to hand over computer equipment for more than two months doesn’t count?

That does not count as obstruction of justice. I’ll give you a couple of examples that would count as obstruction of justice. If we could prove beyond reasonable doubt that the attorneys or that Mayor Adams had either destroyed evidence knowing there was an investigation under way, or if we had been able to prove that they had counseled a witness to lie under criminal investigation.

It’s obstruction if you had evidence that Sam’s lawyers had counseled a witness to lie, or counseled their client to lie?

Well there’d never be any way because of attorney-client privilege to figure out what they told their client. But if we could prove beyond reasonable doubt that the mayor’s lawyers either fabricated a false statement that Breedlove never made or they encouraged Beau Breedlove to lie …You know to frame this a little bit, does criminal law answer ethical questions? No. I can tell you’re unhappy that the mayor loaned Beau Breedlove money at the same time he’s telling Beau Breedlove to lie. That’s an ethical and political question. It’s not a problem in criminal law. I don’t have enough evidence that’s a crime. Was it ethical in a moral sense for the attorney to race over and get a statement from Beau Breedlove in the middle of the night? There’s an ethical and political question. There’s no doubt it’s legal what they did. That’s what every defense lawyer does. That’s what good DAs do. And what Bob Weaver was doing.

But what we’re talking about is something quite different than locking in a statement. It’s in this lawyer’s presence getting Beau to lie.

If we had proof beyond a reasonable doubt that the lawyers told Beau to lie, it would be very different facts than what we had. What Beau did is sign a statement saying he’d never kissed or had sexual contact with the mayor prior to his 18th birthday. And then told the investigator, ‘hypothetically if we kissed would it be crime? And there’s something about the relationship that I’m not telling anyone and I’m working with a publicist.’ That’s the evidence we had from the investigators …Can I say something else to you? As a supervisor of prosecutors, I would never order prosecutors to put a case into court that they didn’t trust. And the difficulty with having an “incredible” witness, is this: if you don’t really believe whether they’re telling the truth or not, you have no idea what you’re getting. Let’s say that Breedlove is telling the truth about the kisses, but he’s also minimizing the mayor’s conduct, because the mayor did have sexual intercourse with him at the time he was 18. Would I put on a case with a misdemeanor and let the witness tell a partially true story in front of a jury? No.

You’ve had cases at times where you believed you had a case, but you chose not to prosecute because you believed it was not a good use of the state’s resources. And you’re faced with that all the time as a prosecutor. Is it at all possible that you were confronted with that situation, that he probably kissed him, but at the end of the day, is it really worth prosecuting?

No. If that’s what I had judged, that’s what I would’ve written. And I can tell you that if we had a viable criminal case, then it would go to a different level of analysis. Then what we would ask is have these cases been prosecuted in Oregon in the past? If you have a viable criminal case, then you get to that question, is it appropriate to charge this? And the question you would ask all the DAs is have you ever prosecuted a case where the sexual conduct of these two kisses in two separate incidences involving a 17-year-old, relatively short of their 18th birthday? And I’m not sure what the answer of that is, because we never got there.

You made reference in your press conference to the anomaly in Oregon law that allows witnesses to lie to investigators… Are you going to do anything about that?

It’s one of the thing that we’ll consider in the off-season, is whether we ought to have a state law that mirrors the federal law. If I thought putting people under oath would’ve made a difference to the case, we would’ve done it … Here’s how a federal prosecutor’s vision would be very different. One of the reasons they use grand juries is because the statements are recorded and there’s a transcript. You use them to lock in a precise version of what the person is saying. In state grand juries, we don’t use transcripts so it has no value that way. One other thing is that is critical is when I talk to DAs is they all say we don’t use grand juries for misdemeanors. And so what we would be doing is be treating this case very differently.

At the outset you said you’ve treated this case very differently.

It’s a question of degree. One of the things I wanted to avoid is popping out with a decision not to charge where all I can say is “sorry!” Just like our shooting cases, right? Every time we have a police officer who shoots someone, it goes to the grand jury, it’s a black box, and pops out and everyone in the public and the media screams bloody murder, the fix was in, they didn’t take this seriously. Under a grand jury investigation, you guys would’ve been sitting here screaming bloody murder about the fact that my decision wasn’t transparent, you don’t know what information I got, and the fix was in. So we did this 100 percent transparent, so you can see everything we did. I think that’s very important, because there are political and ethical issues here that people have a right to know about and make their own judgments about.

Why is it that as a state elected official you feel it is inappropriate to comment on the ethical and political parts of this?

I think the Bush Administration proved it is a mistake to mix politics and prosecution.

The prosecution part is done. It’s not like they can get mixed now. You’ve put that aside. Ethical and political questions have been raised that you could comment on as an elected official, as a Portland resident.

Yes and I believe profoundly that when I’m wearing a prosecutorial hat, I should not editorialize. I’m the prosecutor of record, and will be. I’m just the prosecutor that handled this case. I just think it’s inappropriate for a prosecutor to make political comments, ethical comments about a case like this.

This obviously has a political fallout for you. Once you realized the decision you were going to make, did you have conversations — either before you released the decision or subsequent to it — with political people saying what do I need to do politically?

No. I don’t think it would’ve been inappropriate to do so. But we didn’t have those conversations. I knew it was a no-win situation for me. If we bring the case, we’re going to have fallout, if we don’t bring the case we’re going to have fallout. Either way, it doesn’t really matter. The buck does stop on these cases with the AG.

So you’re saying, moving forward, that should you ever bring a case against anyone else, we should not expect political or ethical statements coming from your office?

If I’m given a case, and at the end of the day, we determine there are no charges to be brought then yes, I won’t be commenting on the propriety of what someone did or did not do.

Can you talk a bit more broadly about what you’ve learned from this process, what you might’ve done differently?

I think it’s too early to do a postmortem. But I could’ve handled the press conference in which I announced our decisions differently in a way that would’ve framed what we’re trying to accomplish very differently. Because the immediate reaction from the press was very hostile. To be honest, I took for granted that people would understand what I was trying to do … There’s not a huge amount of legal sophistication amongst the media, and I didn’t truly fathom that. … I do have a question for you. I was kind of stunned by the degree of skepticism about the degree of work we did here. Do you think I would have any motive not to charge someone with a crime if I had believed a crime had been committed and I had a viable case?

Prosecutors have very good motives for not charging people for crimes when crimes have been committed. I think you have a perfectly reasonable motive not to prosecute a misdemeanor, is it really worth it?

If I had really made that judgment, what you would be saying is that I lied in my report about what I was doing. Yes, if we had a viable case, would we have gone to another question about whether it’s appropriate to charge a misdemeanor here. It’s kind of stunning to me that people’s reaction would be that I must have some motive not to charge a viable criminal case.

I could describe a number of good and bad motives. A good motive would be, ‘he kissed a 17-year-old, yes it’s really stupid, and it’s below the standards we expect for a public official. We’ll issue a report in which we make it very clear that he kissed a 17-year-old and that it’s stupid, but we’re not going to spend half a million dollars prosecuting the guy. We’ll let the court of public opinion deal with it.’

But I certainly would’ve said that. If I was a political hack, would it have been better to charge the mayor? Yes, undoubtedly. I mean I don’t have any doubt about that. The idea that I have some motive… As a prosecutor, as a law professor, who is sworn to uphold the law, it’s a little bit odd to me that everyone’s immediate reaction is that “Oh the fix is in somehow.”

But there are ethical judgments in those earlier drafts that are not in the final report.

All I can do is make sure that my final draft reflects what I believe is appropriate and correct. Our public records manual says we have to disclose drafts and this is not the case to be forming a novel interpretation of the public records law.

You are dealing with people who don’t know anything about the law and prosecuting cases. But the news about the loan, which for Beau $750 is not an insignificant amount of money. And for Sam, it’s probably a more significant amount of money. For that not to surface in your report, I think, that was a mistake for you not to include in the final.

The reasons it was not are twofold. One, I believe it was already public record. I now understand it is not. I really don’t scour the media in this case. But I had the impression that Nigel had already reported it. So when I edited the report, it’s not like I thought this was a brand new, bombshell revelation, I thought everyone had already known this. And the other thing, what was important to me was here are the material facts that influenced my final decision.

So you may have done your job as prosecutor. However, there remains this perception among many people that the mayor lied to get his office and he has gotten away with it.

I’m not surprised that there are people who are angry with the result. I’m not surprised that there are people who wish we’d come to a different conclusion. I’m not surprised by any of that. I’m a little bit surprised that a part of this is second-guessing is of my motives and reaching my decision. In the future, I will no longer be surprised by second-guessing of my motives.

 
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