A new report gives progressives a major victory in Oregon's long-running battle over criminal justice reform.
Prosecutors said a 2017 law requiring the recording of grand jury proceedings would lead to disaster, but their predictions turned out to be wrong.
"By all accounts, the implementation of Senate Bill 505 has gone smoothly," says Mary Sofia, lobbyist for the Oregon Criminal Defense Lawyers Association. "It is becoming clear that many of the concerns [prosecutors] cited in order to oppose the passage of the bill have simply not come to pass."
Grand juries serve as gatekeepers in the criminal justice system, but their decision-making is shrouded in secrecy. In Oregon, prosecutors present a case to seven jurors, mustering witnesses, victims and evidence. Defendants have a right to testify, but most do not. Grand jurors then decide whether the state has a strong enough case to proceed to trial.
The proceedings are secret, in part to protect the privacy of those who don't get indicted. And while the state knows every word uttered at a grand jury proceeding, the accused doesn't hear a single sentence. Reformers say that stacks the deck in favor of prosecutors, who nearly always get the indictments they seek. That in turn can lead to unfair negotiations and draconian plea deals.
In 2017, the Legislature passed SB 505, which required that grand juries be recorded and the recordings provided to defendants—although not to the public. The issue generated heated debate among proponents, who wanted greater transparency, and prosecutors, who claimed it would hurt victims and over-burden the courts.
"The Oregon District Attorneys Association believes [the law] will create a grand jury system that damages victims, undermines the criminal justice process and will result in time-consuming and costly motion practice," then-Marion County District Attorney Walt Beglau wrote in testimony March 8, 2017.
Multnomah, Deschutes and Jackson counties started recording all grand juries last March, and the rest of the state will join them July 1. An early review of recordings ordered by the Legislature in the pioneering counties suggests district attorneys were wrong. The shift to record grand jury proceedings has not clogged the courts.
"Court workload related to implementation of SB 505 in those counties," a Nov. 30 report to the Legislature says, "has been less than expected."
The report's bland language undersells how significantly prosecutors overstated the impact of recording grand jury proceedings.
Prosecutors estimated they'd send up to 70 percent of cases to preliminary hearings instead of grand juries; since the law went into effect, however, Deschutes and Jackson counties haven't held a single preliminary hearing. (Deschutes County DA John Hummel never intended to resort to preliminary hearings.)
Multnomah County initially sent an average of 39 percent of its cases to preliminary hearings before abandoning the practice altogether by September.
The DAs also said they were likely to seek protective orders, in which a judge restricts parts of the recording from being released, in 30 percent of cases to protect witnesses and victims.
But Multnomah County has filed only six protective orders—fewer than 1 percent of cases. Two of those orders were to protect police officers' personal information after officer-involved shootings, two involved children, and two were in murder cases "for the protection of witnesses or to protect the secrecy of an ongoing investigation." Deschutes and Jackson counties haven't sought a single protective order.
The Multnomah County District Attorney's Office admits the impact of recording grand juries has been less than the office predicted in 2017, although a spokesman says it's still possible some counties will struggle with the new law.
"Other counties, as they roll into this on July 1, might experience something different," says Multnomah County district attorney spokesman Brent Weisberg.
Reformers told legislators in 2017 that Oregon was an outlier, one of just 12 states that didn't record grand jury proceedings.
Most criminal cases—somewhere north of 95 percent—end in a plea bargain. Failing to record grand jury proceedings left defendants and their defense attorneys without crucial information when negotiating, advocates said.
"Fairness is critical, not only at the trial phase but, just as importantly, at the plea-bargaining stage," Bobbin Singh, executive director of the Oregon Justice Resource Center, told lawmakers June 26, 2017. "In negotiations, knowledge is power. In this instance, the government has both. Recordation would help to equalize the scales of justice when the parties are negotiating what should be a fair and just outcome to the case."
District attorneys, law enforcement officers and some victim rights advocates pushed back hard.
"Asking the victim, who has likely been through the most harrowing experience of his or her life, to prove why they don't want their testimony turned over to the defense just re-victimizes that person and puts one more hurdle up in the quest for justice," Rosemary Brewer, executive director for the Oregon Crime Victims Law Center, told lawmakers in 2017.
The recently released legislative report reviewing the first three "early-adopter" counties, Multnomah, Deschutes and Jackson, found a different reality.
Witnesses, victims and offenders frequently failed to show up to the preliminary hearings, which can be tough to schedule because they have to take place within five days of someone being arraigned, says Jeff Lowe, a deputy Multnomah County district attorney. At the same time, the Multnomah County DA didn't see a need to file protective orders to redact most witness and victim testimony at grand jury proceedings.
Lowe acknowledges his office overestimated negative consequences. But he and his colleagues still have some gripes with the new law. Lowe says prosecutors run into complications in cases with multiple co-defendants, in which prosecutors have struggled to figure out how to distribute or restrict recordings of grand jury proceedings without jeopardizing cases.
The Multnomah County DA projects it will cost $500,000 this year to record the grand jury proceedings for felony cases that go to trial.
"The bill has some holes that are going to need to be fixed," Lowe says, "but it's the law, and we're going to follow the law. We will do what we have been tasked to do."