Guest Column, Bend Bulletin
August 30, 2021

Race has played a role in Oregon politics and the law in Deschutes County, and not just a century ago. In what is deemed by some to be a great “reckoning,” many Americans are examining their histories with race.

I grew up in Oregon. If it weren’t for my parents’ involvement in the early civil rights and anti-Vietnam War movements, I might never have met a Black person until I was older, like many Oregonians.

One of my first cases as the No. 2 lawyer in the Deschutes County District Attorney’s Office (when I served in that job from 1990-94) was the murder of Lynn Oliverio, a Bend woman who worked downtown and whose only mistake was using the rail line as a shortcut to work. On Nov. 9, 1989, Robert Fort robbed, raped and murdered her, and then fled by hopping on a train. Good police work tracked down a piece of jewelry he had stolen and hocked. He was caught in the Midwest and brought back to Bend for trial.

The case was horrific. The victim was blameless, and Fort ’s crime was particularly cruel and vicious.

The crime and his previous record clearly made Fort a good candidate for the death penalty, which Oregon had reinstated just five years earlier.

My boss, then -DA Mike Dugan, made clear the decision was mine.

I had bitterly opposed the death penalty while growing up but had gradually changed my mind as I worked as a prosecutor. I decided to offer Fort a deal — a life sentence — which he accepted.

I made the offer in no small part because Fort was a Black man, and at the time Deschutes County had the smallest percentage of Black residents of any of the midsized or larger counties in Oregon.

Without question his jury would have been all white.

In all the subsequent trials I led in Deschutes County, I found the jurors to be intelligent, thoughtful and more diverse than I expected — and certainly more diverse than I expected at this first murder trial there.

But as the person with the power to decide whether the gate to the death penalty should be unlocked for Fort, I had misgivings. I had read about racist juries in the South acquitting sheriffs of murdering civil rights workers and similar horrors. Given the power of the state, I decided to err on the side of caution.

No part of America is free of racism, but Oregon was not founded, as some claim, as some sort of “white paradise.” Until 1987 the state motto was “The Union,” fighting words in 1859 when Oregon was admitted and just before the Confederacy declared war on the United States. The Oregon territorial governor, Joseph Lane, was a southerner and a die-hard racist. But more Oregonians of the era were Northerners who detested slavery. If a slave owner brought a slave into Oregon, that slave was then free, years before the 13th Amendment. When that amendment was debated, immortalized in the 2012 movie “Lincoln,” Congress was deeply divided. Yet the Democratic Senator from Oregon, James Nesmith, who represented a party that defended slavery, cast his vote to free the slaves, one of only two Democrats in the U.S. Senate to do so.

You want and need a district attorney who reflects the values of the community but ultimately is loyal to the law, not to the crowd or the moment. Over the next year Deschutes County voters will have the chance to put the DA’s office back on the right track, from which it strayed about 6 years ago.

History surrounds us. It is the preface, and sometimes an explanation about where we are as a people and a nation. But it shouldn’t be a yoke that can be weaponized to stifle debate.
​
We would do well to heed Lincoln’s admonition in his first inaugural to “heed the better angels of our nature.”

read the column on the Bulletin's website.

“It would be absolutely chaotic! We’d be talking about thousands, maybe tens of thousands of convictions being reversed,” described retired Clatsop County DA Joshua Marquis.

Marquis told KOIN 6 News that beyond tying up the courts, granting retroactivity would result in more hung juries, force victims to relive trauma, and make it increasingly difficult for prosecutors to convict in cases of sexual assault.

“I’ve been trying these cases for nearly 40 years and there’s a great deal of skepticism still when women, and girls, and children come forward,” Marquis pointed out. “And almost every verdict I’ve obtained has been 11-1 or 10-2 for guilty.”

Under the new unanimity law, those votes would not be enough to garner a conviction. “On the service it sounds very simple, -‘now we’re just like the rest of the country, justice has been done so let’s just go back and redo all those cases’ – but that won’t be what happens!” explained Marquis.
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Jury still out on split-jury cases as hundreds seek new trial
from KOIN 6 News
by: Joelle Jones
Posted: Jul 23, 2021 / 06:00 PM PDT / Updated: Jul 23, 2021 / 10:42 PM PDT

PORTLAND, Ore. (KOIN) — Trial by error … or an error in our trial system? Oregon’s controversial history involving non-unanimous jury decisions continues to be a topic of debate as lawmakers grapple with whether to give hundreds of Oregonians convicted of crimes new trials.

The debate comes after the Supreme Court ruled non-unanimous jury convictions to be unconstitutional under Ramos v. Louisiana in 2020, forcing Oregon — the last state to allow divided jury decisions — to update its laws.

However, the decision did not apply retroactively, meaning hundreds of cases with split-jury convictions prior to the Ramos ruling (many of them with defendants still behind bars ) would not be granted relief. With the fate of those cases back in the hands of the state, the jury is still out on how to address them.

KOIN 6 News spoke with one of the hundreds of Oregonians fighting for second chance in their case, including Terrence Hayes.

In 2004, Terrence Hayes was convicted and sentenced to serve 13 years in prison on a 10-2 vote. “Ten out of twelve are good numbers that don’t historically work out for minorities,” explained Hayes. “So, you’re talking about sitting in jail for 13 years knowing you didn’t technically get a fair trial.”

“Guilty beyond a reasonable doubt! That’s how our justice system is supposed to work,” Hayes said. “How can you say there wasn’t any doubt in my case when two jurors didn’t even think I was guilty?”

US Supreme Court to hear case with Oregon implications 
Following the Supreme Court’s Ramos ruling, in spring of 2021 the Oregon legislature wrote non-unanimous juries out of state law in Senate Bill 139A. The legislation, which currently awaits the governor’s signature did not address retroactivity. Now, some lawmakers argue simply aligning our laws does not go far enough.

While discussing SB 193A on the House floor, Representative Janelle Bynum stated, “This section doesn’t really do anything unless we address the 300 or 400 or so Oregonians who have been convicted under non-unanimous juries and are awaiting a second opportunity to discuss their case.”

Aliza Kaplan, professor at Lewis and Clark Law School and Director of their Criminal Justice Reform Clinic cites the racist history surrounding Oregon’s law as just one of many reasons to consider retroactivity. “The law was based in xenophobia and anti-Semitism but primarily played out over the last 90 years against mostly Black people,” Kaplan explained. “When you know a law is on the books that was based in discrimination and has played out in a discriminatory way of almost 90 years… and then it was found unconstitutional – I just think it’s really important that we go back and fix those mistakes.”

Non-unanimous juries gets SCOTUS hearing, Oregon watches 
Approximately 420 cases actively in direct appeals at the time of the Ramos ruling were vacated and granted a second chance in their trials. Kaplan went on to highlight the primary difference between those cases the ones like Haye’s which have received no relief is simply timing. “It’s this crazy thing in the law that says ‘Oh we don’t really care that you were convicted under an unconstitutional law, or that it’s totally racist. It doesn’t matter ‘cause the timing wasn’t right,’” exclaimed Kaplan. “And it just feels –and is– so unjust and unfair. All folks want is a second chance, a redo.”

Hayes told KOIN 6 News that the controversy and contradictions surrounding Oregon’s non-unanimous jury law should challenge Oregonians to ask the question: “Why, if we’ve recognized this as racist, aren’t our leaders immediately smacking it in the mouth and dealing with it?”

At the time of Hayes’ conviction, Oregon’s Attorney General Ellen Rosenblum was the presiding judge. Ironically, she now has the opportunity to change Hayes’ life again for what he hopes may be the better.

Supreme Court takes up non-unanimous juries 
“The attorney general has a choice,” said Kaplan. “Does her office fight retroactivity? Does she just let them go? Or even better, does she stipulate to retroactivity? … And in every single case that’s been filed, her office has fought the petitioner and said no retroactivity.”

In addition to actively blocking retroactivity, Rosenblum filed a brief to the Supreme Court in 2019 asking them not to change the non-unanimous jury law despite publicly calling it “an embarrassment to our otherwise progressive state.” After their decision, Rosenblum filed a second brief in 2020 urging the courts not to make the decision retroactive, citing concerns that the courts would become ‘overwhelmed’ with appeals. And she’s not alone in her concerns.

“It would be absolutely chaotic! We’d be talking about thousands, maybe tens of thousands of convictions being reversed.” described retired Clatsop County DA Joshua Marquis.

Marquis told KOIN 6 News that beyond tying up the courts, granting retroactivity would result in more hung juries, force victims to relive trauma, and make it increasingly difficult for prosecutors to convict in cases of sexual assault.

16 non-unanimous verdicts returned to Oregon DAs 
“I’ve been trying these cases for nearly 40 years and there’s a great deal of skepticism still when women, and girls, and children come forward,” Marquis pointed out. “And almost every verdict I’ve obtained has been 11-1 or 10-2 for guilty.”

Under the new unanimity law, those votes would not be enough to garner a conviction. “On the service it sounds very simple, -‘now we’re just like the rest of the country, justice has been done so let’s just go back and redo all those cases’ – but that won’t be what happens!” explained Marquis.

And while retroactivity would undoubtedly be a logistical nightmare for the court system, Hayes argues lawmakers have a responsibility to rectify the situation for him and others like him who have been victimized by the now-unconstitutional law.

“The courts is a thing. I am a human being, I’m a person!” cried Hayes. “My life matters! The time in my life matters -this moment of time that I have with my family and my friends matters and I don’t get that back! So when people sit there in their comfort zones letting that nonsense spew out of their mouths they are absolutely valuing a thing — a concept — over a human being that thing and concept was supposed to protect.”

Advocates to keep fighting non-unanimous jury convictions 
For Hayes and others like him, retroactivity — if granted — would not be a ‘get out of jail free card.’ Defendants would have the burden to prove their case was the result of a non-unanimous jury decision in order to restart the trial process at the county level. A feat not so easily achieved, since most courts did not keep records on which verdicts were the result of non-unanimous jury verdicts.
​
Currently, approximately 250 cases (not protected under Ramos) have filed appeals.
And with the Oregon Attorney General and the legislature unable to pass a bill addressing retroactivity before the end of the session, Oregon’s law isn’t the only thing that appears to be non-unanimous.
​​

Portland Tribune
Wednesday, July 6, 2021

This last, painful session of the Oregon Legislature was difficult for many reasons.
The building was utterly off limits to everyone but legislators and their staff, meaning there was no ability to "lobby" legislators or staff, and the actual hearings were remote, meaning there was none of the usual interchange, conversation and rarely even any questions.

The result has been some awful legislation in the area of criminal justice, what is now often called "social justice." The voices of victims, cops and prosecutors have been ignored, and violent criminals have the full sympathy of the Democratic Party I have actively served my whole adult life.

But the icing on the cake was a June 22 Portland Tribune opinion piece, "Don't disenfranchise people who want to vote," by two current state legislators, Tawna Sanchez and Andrea Salinas. They were joined by a national advocate for convicted criminals, the head of The Sentencing Project.

They are miffed because although they passed many laws that will severely hamper fair and effective law enforcement, their efforts are aimed at allowing the absolute worst, current felony inmates to vote.

To be clear, Oregon has been in the forefront of extending the franchise — the right to vote — to former felons, even those convicted of murder or rape. The only disqualifier is for the roughly 12,000 men and women serving time for a felony inside an actual prison. People in any county are eligible, as is anyone with any criminal record, so long as they are not currently doing felony time in a state facility.

To give an idea of how tiny this number is, it represents roughly one half of 1% of the population.

Let's be clear, this very proposal had not one, but two bills in the 2021 session, neither ever even got voted on. At testimony on the Senate side, almost 100 people submitted written testimony and roughly half opposed the bill . According to their opinion piece, the legislation would even grant the 30-odd killers on death row the right to vote on matters like the death penalty or criminal sentencing.

The authors' poster boy for this proposal, which is far beyond what each state (except Vermont and Maine) provide, is a man named Anthony Williams. He is serving a life term without parole for a particularly brutal murder several years ago. He committed the crime when he was 17, so to receive a life without parole sentence is extremely unusual.

Williams speaks about the "150-person riot" he took part in at the Oregon State Correctional Institute after he had been allowed to spend several years in the Oregon Youth Authority. He wasn't in the adult prison until he was 25.

Authors of this bill, and their opinion piece, really, really want people like Williams to decide who your school board should be, whether the drunk-driving laws should be made more lenient, or even if Measure 11 should remain law.

It would be comic, if it were not so unjust, to suggest the very worst in our community should be given the right to decide others' lives. Once released, those rights automatically return to them.

Oregon already wipes away all legal barriers once a person leaves prison. There is no reason to reward the 0.3% of the population who are in prison with the vote.

When slavery was abolished, an intentional clause allowed deprivation of liberty upon lawful conviction of a serious crime.

Joshua Marquis of Astoria was Clatsop County district attorney from 1994 to 2018. He is active in the National District Attorneys Association.

Opinion: Bill to ease expungements shifts burden onto victims, prosecutors
by Guest Columnist Joshua Marquis
oregonlive.com 
Updated May 05, 11:34 AM; Posted May 05, 6:00 AM

In an April 21 op-ed, Multnomah County District Attorney Mike Schmidt joined the head of the Metropolitan Public Defender in support of making it even easier to erase criminal records and convictions­ ­– even those involving felonies and violence to people (“Ease expungement of past crimes and help people gain second chances”).

The two write that the further erasure of criminal convictions is needed to allow “loved ones, friends, and neighbors … to move on from their past mistakes.”

What is telling from their quote is that they view the felons – not the victims – as their loved ones and neighbors. Those victims, who usually are appalled to find the crime against them erased from the perpetrators’ records, are by considerable proportion women, children, the poor and people of color.

Oregon’s law on “expungement” has been around a long time. The original, and worthy, intent was to allow people who had committed lower-level crimes, but otherwise had conducted themselves lawfully, to have the single stain on their record erased by a judge if they had no further arrests in the subsequent three years. I am very familiar with the process, having worked primarily as a prosecutor but also as a defense attorney for four decades. The law typically allowed crimes like shoplifting, vandalism, bad checks and possession of drugs to be erased.

But there has been “system creep” through the actions of criminal defense lawyers, their allies in the Legislature and now a district attorney who speaks like a public defender. Since those halcyon days, the ability to erase convictions after a certain number of years has extended to felony assault, virtually all drug crime – including major drug trafficking – and crimes like perjury, tampering with a witness and coercion (which often involves threatening violence to a witness to ensure they don’t testify). Arrests without conviction have always been eligible for erasure, even for murder.

Senate Bill 397, which Schmidt and his co-author, Carl Macpherson, support, would make the permanent erasure of past crimes even easier by shortening waiting periods for people to erase certain convictions and cutting fees.

It would also completely shift the burden to prosecutors and victims to prove why, for example, a man convicted of beating two girlfriends should have his record erased. The language changes are subtle, but seismic.

Currently, it’s up to judges to determine whether applicants’ behavior in the years since their conviction merits granting the expungement. But under this bill, the court must grant a request for expungement to eligible applicants unless “the court makes written findings, by clear and convincing evidence, that the circumstances and behavior of the person … do not warrant granting the motion due to the circumstances and behavior creating a risk to public safety.”

This is an upside down world, where victims are suspects and criminals are heroes. Burglaries are now eligible for extinction, as are – despite claims to the contrary – virtually all gun felonies, from a convicted felon in possession of a firearm to unlawful use of a firearm.

To get a real-life example of how the law already is too lax, we need only look at cases like that of convicted murderer Joel Terence Abbott. In 1993 Abbott was convicted of murdering his once-girlfriend, Carolann Payne. That wasn’t the first time he hurt her – he was convicted in the mid 1980s of felony assault after stabbing her. But he had that conviction expunged, meaning in the eyes of the law, it never happened. Unfortunately, while his record was erased, his violent ways were not.

Marquis retired as Clatsop County district attorney in 2019 after 25 years in office. He is a past president of the Oregon District Attorneys Association and previously served on the Oregon Criminal Justice Commission. He lives in Astoria.

The Oregonian is running a ceaseless (and thus far unrebutted) war on what is left of Measure 11, re-passed by 75% of Oregon voters in 2000. The most recent piece is by a young man who is just finishing 17 years for a double manslaughter following previous violent felony convictions.

My response, originally accepted by the newspaper, "timed out" because there are more anti-victims op-eds slated for publication. So, here it is for you. ::::

Thirty years ago Oregon’s violent crime rates were skyrocketing. Murders in the state’s most populous county were at an all-time high. Prison sentences were irrelevant; dangerous offenders cycled in and out of prison.
 
Then citizens – not politicians or prosecutors – forged Ballot Measure 11. This law gave real time for real crime – eight years for armed robbery with a gun where the victim is injured, eight years for the rape of a child, 25 years for intentional murder. Measure 11 laid out minimum mandatory sentences for the worst crimes – regardless of the race or class of the offender.
 
Now a chorus of felons, defense attorneys and social justice activists are clamoring to return to the days when a “20-year sentence” might only really mean eight months.
 
Citizen support for Measure 11 has remained solid. When it first passed in 1994, it won with 64 percent. In 2000, opponents attempted to repeal it Measure 94. Voters said no by a three-to-one margin.
 
Measure 11’s foes now are trying to side-step voters by going to the legislature. Twice in the past, legislators have chipped away at the law. Legislators are always looking to save money in one place to spend somewhere else. Minimum-mandatory prison sentences have been a convenient target. Many victims of violent crime are from the lower socio-economic classes. They don’t have well-financed lobbyists.
 
In the 2021 legislative session expect to see and hear more stories like the one offered by multiple-felon Martin Lockett a few weeks ago in the Oregonian. Lockett opposes Measure 11, but he is an excellent example of why this law works.
 
Lockett earned a 17-year sentence for robbery and the manslaughter of two people in 2003. The judge was required only to give him a single 7-½ year sentence for the manslaughters but gave him a longer sentence because of his prior felonies and the heinous nature of his new conviction. Even Lockett conceded he was no stranger to the law. He had already been given second chances for previous crimes and was on probation.
 
He offered a well-worn excuse for killing two people, saying he “turned over a new leaf – until my troubled relationship with alcohol led me into the most catastrophic mistake one can make while intoxicated.”
 
Under Measure 11, Lockett could no longer act like a passive actor being led astray.
 
The substantial sentence he received undoubtedly had a sobering effect on him. It forced him to realize that if he did not change, he would likely spend the rest of his life in and out of a cell. While in prison, he earned a master’s degree and developed new habits.
 
Now that he will be released from Deer Ridge in June, he displays arrogance when he talks about what he learned while in prison: “My transformation was solely of my own doing, not because any mechanism in the system aided or encouraged it.”
 
What we know with certainty is that while Lockett was in prison, he did not kill or rob again. He did not hurt anyone in the general public. If his past is any indication, had there been no Measure 11 he would have once again paroled quickly and resumed his bad habits.
 
Lockett is proud of how progressive Oregon can be and hopes it will end Measure 11. When he is finally released, perhaps he can take a stroll through downtown Portland. He may be surprised at what justice can look like with a progressive District Attorney,  like Mike Schmidt.
 
I hope Lockett settles down into a law-abiding life. If he does, he may find a new appreciation for why Oregonians voted for Measure 11.
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