Clackamas County defense lawyers; exhibit A in your motion for Grand Jury notes

This wikilog article is a draft, it was not published yet.

by: Ryan • January 1, 2015 • no comments

UPDATE: the senior prosecutor quoted below has called to tell me that the quote from the newspaper story reflects neither his practice nor his beliefs. I have told him that I will publish any response on this post that he would like me to.

In a recent two-part series on Grand Jury reform, the Portland Tribune highlighted the possibility of legislative action in 2015 in Oregon. 36 states record Grand Jury testimony. Oregon does not.

As many of you know, I have been pushing defense attorneys to request Grand Jury notes for years. The most effective time to ask for Grand Jury notes is after a witness testifies at trial. If there are inconsistencies between police reports and trial testimony, then the Grand Jury testimony is almost certainly Brady material; it must conflict with something the witness has said, and moreover it was under oath.

The question is, how big a discrepancy must it be? I submit that it doesn't matter. The suspect had green pants; the subject had blue pants. Maybe that won't make a difference at trial, but maybe it will. The one thing for certain is that prosecutors should not be the gatekeepers as to what constitutes a sufficient discrepancy to turn over to the defense. It's Brady material; they don't get to decide if it's Brady enough.

With that in mind, note this quote from the first part of the story on Grand Jury reform:

Mike Regan, who supervises the sex offender unit of the Clackamas County District Attorney’s Office, agrees. He worries that if grand juries are recorded, dangerous offenders would stay on the streets longer while pre-sentencing legal challenges based on those recordings are argued. He also worries defense attorneys would routinely compare recorded testimony to police reports and trial testimony and use even small discrepancies to rattle witnesses. [Emphasis added.]

If you practice in Clackamas County, let me ask you this: have the prosecutors ever turned over Grand Jury notes with "small discrepancies"? And if not, is that because the prosecutor who is quoted is worried about a hypothetical "small discrepancy" that he, personally, has never witnessed during his decades of submitting cases to Grand Juries?

Or has the senior prosecutor just tacitly admitted that he does not turn over Brady material?