Oregon Appellate Court September 6, 2012

by: Stephanie Clark • September 6, 2012 • no comments

Impartial Magistrate > Inception Order Not Unlawful When Issued by Judge Previously Assigned to Case as DA

A judge who signs a body-wire order for a case to which he was assigned years earlier as a DA does not lack the "neutrality and detachment" required for the issuance of such an order.

The court assumes that the "neutral and detached" standard required of judges issuing warrants also applies to inception orders. Here, the issuing judge-years earlier assigned to the gang-related murder case as a DA-was sufficiently "neutral and detached" because:

1. He was "severed and disengaged" from law enforcement activity. He had no affiliation with law enforcement at the time that he reviewed the order application.

2. Under an objective appraisal of "psychological tendencies and human weakness," his previous involvement in the investigation-viewing the crime scene, attending an autopsy, and acting as assigned attorney-did not amount to unconstitutional bias. State v. Hale, __ Or App __ (2012).