Senate Bills to Die in Judiciary

You should be concerned by lobbyists’ chilling effect on open debate, on powerbrokers’ ability to kill legislation when not even in the room.

Regardless of all else conveyed in this post, it is important for readers to keep in mind the accurate assessment Consult Hardesty has made: changes to state law, to help remedy what the Department of Justice described as a ‘self-defeating accountability system,’ are now required. Be mindful that a pending, remedial agreement between the DoJ and the City of Portland is not comprehensive enough to eliminate some of the most profound ways police accountability is thwarted. A City/DoJ agreement has no effect on state and county policies that inhibit The People’s civil rights.

We have made an attempt to remedy three of what we feel are the State of Oregon’s most egregious failures to assure that civilian authority prevails over institutionalized injustice. (For background, see Oregonian op-ed, here.)

Long-term observation of systemic failures in police accountability allowed Consult Hardesty to propose a slate of three changes in state law we offered for consideration by Oregon State Legislature.

• Even casual observers note that County District Attorneys have persistently failed to prosecute police officers for criminal behavior in lethal use of force. In contrast, civil juries award immense damages to those officers’ victims. Relying as they do on police cooperation to carry out the bulk of their workload, District Attorneys fail to get Grand Juries to indict their co-workers. Our analysis looked at both the process and the means by which the system fails to hold officers accountable. We found deficiencies that would be remedied by changes to state law. We contend that successful indictments would be more likely when responsibility for investigation and prosecution of these cases is transferred to a jurisdiction where parties are not engaged in collaborative, day-to-day pursuit of criminal justice.

• The standards by which citizens are asked to judge a police officer’s criminality do not allow a jury of their peers to find the same culpability that civil juries do. Current legislative language calls jurors to find that an officer believed his risk assessment was accurate prior to use of deadly force. Changing standards to permit jurors to assess what a reasonable person in that officer’s circumstances would be expected to believe would – we assert –empower juries to more accurately judge culpability. Police culture may equate ‘being dangerous’ with ‘being a person of color,’ or perceived to be poor or mentally ill. Officer depictions ‘furtive’ movements may not provide reasonable justification to the average juror. Consult Hardesty seeks to empower jurors to consider what they find reasonable, given the totality of circumstances, in judging whether police use of lethal force was criminal.

• The community needs to see that justice has been done in Grand Jury proceedings that fail to bring indictments. Secrecy can shroud misconduct or a lack of zeal by an elected official. We sought to mandate that proceedings be transcribed, and that transcripts be made public. Voters need to be able to ascertain whether they have chosen wisely.

Readers should make note of the nearly unprecedented letter Grand Jury #1 wrote to the Multnomah County District Attorney after not indicting Portland Police Officer Ron Frashour on criminal charges in the 2010 homicide of unarmed Aaron Campbell. Jurors said, “…we the grand jury determined that we could not indict Officer Ron Frashour on any criminal charge. That is not to say that we found him innocent …” Jurors reported they could not indict Frashour because his actions fell within state law. Their ruling rested on whether or not Frashour believed he or his fellow officers were in imminent danger. Consult Hardesty attempted to be responsive to this tragic flaw in state law. More below.

Investigators into the police homicide of James Chasse reported to us this week, “While researching Alien Boy: the life and death of James Chasse, I was amazed and disturbed to find that the District Attorney’s office had no official record of the grand jury testimony about the tragic death of James Chasse at the hands of Portland Police. This bill would make grand jury testimony public.” More below.

And now to the gist of this post: though the Oregon legislature has the structure and means by which to entertain legislation introduced by members of the public, lobbyists’ influence will thwart deliberation of any measure these powerbrokers feel is contrary to their clients’ interest.

Another assessment is that it will require more than an astute analysis of deficiencies to get the merits of an argument before this deliberative body: changes in state policy require organized political pressure currently beyond the means of Consult Hardesty.

Most readers will not know the State’s Office of the Legislative Counsel (OLC) is a permanent, nonpartisan service agency that will work citizens’ ideas into legislative language. Informed by three terms in the Oregon House, Jo Ann Hardesty initiated a rather informal process of sharing her perceptions of the need for legislative remedy with Sen. Jackie Dingfelder, prior to the 2013 session. Dingfelder’s staff guided a back-and-forth exchange with the OLC until Jo Ann was satisfied that three bills both addressed her assessments of just remedy and Dingfelder’s consent to become Chief Sponsor of this legislation.

In all, two Senators and four members of the House signed on as co-sponsors of Senate Bills 779, 780 & 781. On 26 February, the bills had their first reading and were referred to the Senate President. Two days later Sen. Peter Courtney sent the bills to the Senate Judiciary Committee, on which Dingfelder serves.

The first, unexpected twist was that the Chair of Senate Judiciary, Sen. Floyd Prozanski, intimated he would let the legislation die in committee unless Consult Hardesty met with lobbyists from law enforcement. Our strategic plan – based on Jo Ann’s leadership style when serving on Oregon’s House Judiciary Committee – assumed lobbyists would seek to persuade lawmakers on their own initiative; that it was not our task to advance legislation among those who might oppose reform proposals.

On 12 March we took a meeting in Dingfelder’s Salem office with three men paid to represent different law enforcement associations. Jo Ann had pre-existing relationships with two. Surprisingly for us, they offered no concrete objections, proposed no amendments to the bills. Glad hands all around.

Prozanski then scheduled public hearing of the bills. On 27 March we returned to the Capitol to testify before the Senate Judiciary Committee. (Download audio here.) Prozanski set an agenda and we watched as he deftly gaveled the body through its first order of business: a law enforcement request for expensive new training facilities. The group heard brief testimony, followed by a twenty-second question. Prozanski convened the body into a 70-second work session that held no debate, and passed their bill on to the Senate Ways and Means for further consideration. It was only as dozens of well-dressed men and women left the room that it became apparent that Roger David and Jo Ann Hardesty were (later joined by a curious, member of Occupy Salem unaware of our bills) the only non-compensated people in attendance. Though all addressed him as ‘Chair Prozanski, he often used first names when calling upon lobbyists who testified.

Prozanski later organized panels of testimony for our three bills as a group. Despite three seats at the table, Jo Ann and co-sponsor Rep. Lew Frederick were the first panel to testify. Senators Dingfelder, Prozanski, and Arnie Roblan representing majority Democrats; with Betsy Close and Jeff Kruse as minority Republicans. Frederick and Hardesty made well-prepared statements, speaking to the need for remedy that was both compelling and recognized legislators’ expectations as to form. Members had no questions for Frederick. Prozanski asked a single question affirming the intent of 781, followed by a leading question from Dingfelder to assert Oregon faces a state-wide problem in holding police accountable.

Becky Straus, Legislative Director of the Oregon ACLU, then provided written testimony and spoke in informed, legally relevant terms in favor of the bills. She was paired with Gail Meyer, representing the Oregon Criminal Defense Lawyers Association (who defend accused cops), who confined testimony to supporting SB780. Meyer called for amendments in cases where officers are indicted. Questions grew more robust, and three committee members began a serial give-and-take one would expect to lead to deliberation. Two of Senators’ queries were germane to discussion; one from Close was not.

The idea behind pairing six witnesses in groups of two became apparent when Multnomah Chief Deputy District Attorney Don Rees testified in opposition to SB779 & 781. He was coupled with Marion County DA Walter Beglau, (addressed as ‘Walt’) who represented the Oregon District Attorneys Association and spoke against greater transparency as advocated by SB780. Close posed another irrelevancy and, after asserting SB779  was both the practice in 13 western states as well as getting Rees to affirm it represents the current ‘office policy’ in Multhomah County, Dingfelder took a pro position on the record. Prozanski sought testimony from Beglau on current practices that he did not seek from others. Prozanski (at 55:46) thought his assumptions about current, outside agencies taking the lead into investigations of police use of deadly force was confirmed. They were not. Had he posed his question to proponents of reform or allowed rebuttal, he’d have learned his concerns were valid.  

The public should be concerned that, though Prozanski perfunctorily asked if anyone else wished to testify in the same breath that he closed the hearing, he did not call sponsors of the bill to rebut specious allegations about current practices made by the DAs. We were later to hear from the local citizen observer that Beglau had misspoken, and we were aware that Rees’ testimony required rebuttal from subject matter experts asking for remedy. Though Prozanski had cited time concerns before moving to consider the three bills, the Senate Judiciary Hearing was not configured to accommodate forensic inquiry.

Bundling three discussions, on distinctly different remedies, produced a rambling discussion rather than focused inquiry on the merits of specific legislation. Other than Dingfelder, speaking to SB 779, no position was taken by anyone on Judiciary. Neither Roblan nor Kruse spoke during the hearing. Co-sponsors Sen. Chip Shields, and Reps. Gallegos, Greenlick and Keny-Guyer did not attend. In effect, the ‘hearing’ was a staged show of sequential testimony punctuated by rare questions to obtain greater insight and infrequent forays into irrelevancy. No amendments were offered, no discussion of individual bills was organized.

Instead of gaveling the body into a work session, as had happened for legislation sought earlier by law enforcement, Prozanski – without discussion – adjourned the hearing.

In intervening weeks of a harried legislative session of part-time lawmakers, concerns for opposition to the bills in the House Judiciary Committee were telegraphed to us. Knowing action in the Oregon Senate is as likely to amend bills brought out of committee as they are not, we did not appreciate how concerns in another body would influence the tasks immediately before us … to get bills languishing in the Senate Judiciary Committee to the Senate floor.

In early April, Jo Ann and Meyer worked out an amendment removing provisions for posting Grand Jury transcripts on the Internet from SB780. Transcription would become standard practice; requesting such would require appeal to a court.

To our delight, Prozanski announced on 10 April that he would chair a work session on SB780 the following week. Given the perfunctory work session we’d witnessed earlier, Consult Hardesty decided other parts of our workload held higher priority than another trip to Salem.

(Download audio here. Amended language was not made public.) On 17 April, Roblan explained that provisions to post transcriptions to the Internet had been replaced with their release upon court order; and that DAs would redact at least identities of jurors and witnesses. Close moved the amendments. In discussion she asked, “Is this a gut and stuff?” Roblan testified OLC would think so, but the group concluded they had not replaced the intent of this legislation with something completely different. The unseen amendments moved without objection. Close moved SB780, as amended to the Senate floor with a ‘do-pass’ recommendation. Roblans and Kruse announced they would deliberate further and might not vote for the bill when the Senate took it up, yet SB780 passed out of Judiciary without objection.

Dingfelder’s staff announced SB780 would pass out of Judiciary on a 5-0 vote. Within the hour, we were notified that Kruse and Close had changed their votes after Prozanski’s gavel fell, and that the bill would come out of committee on a party-line, 3-2 vote in favor.

Then came the bombshell.

It a tightly packed schedule, Senators in the Democratic Party caucus together around the lunch hour. We were told in the afternoon, “… after some caucus discussions, we do not have the votes to pass SB780 on the floor. This is due to some very fast and effective lobby efforts by those opposed to the bill. The plan as of now is to send the bill back to committee and let it die.” Lobbyists are not permitted into caucus deliberations. The decision to refute Judiciary’s public deliberations and ‘do pass’ recommendation was made by closeted Democrats.

We feel Oregonians should be concerned that legislation advocating greater transparency in governance actually fell victim to closed-door machinations by Senate leaders in the Democratic Party of Oregon. Rather than argue the merits of citizen-inspired legislation in open debate, we live in a system where invisible influence settles affairs. 

A complex, seriously expensive proposition for police training facilities received no question-and-answer period in the Senate Judiciary Committee. One can only surmise, by the way those interests were expedited, that coordinated lobbying efforts had answered all prior to open hearings. Scheduling hearings – so spillover from law-and-order-backed legislation provides a ready pool of testimony in a subsequent matter – may be a good use of people’s time, or it may be a means by which the merits of legislation introduced by The People are offset by paid lobbyists. Special interest groups, with a year-round, near-constant presence in the halls of the Capitol, have – from their days of participating in legislators’ very first campaign for office –developed extraordinary familiarity with elected leaders. This familiarity is not offset by structured pathways of shepherding legislation originating among The People, through an open, deliberative process. Informal back channels produce the law of the land.

In Oregon, advocacy groups can contribute to political campaigns after a campaign has concluded. Special interest money flows to winners months prior to the opening of a Senate session. Well before offering these opportunities to improve accountability and transparency in policing, it was Jo Ann’s contention that it is imperative that ‘we get money out of politics.’

Sadly, Jo Ann’s suspicions seem confirmed. Instead of open debate on the merits of legislation, where hearings call together the brightest (and perhaps disinterested) minds to help lawmakers make up their minds, hearings provide a rare public appearance of paid advocates whose influence is generally behind the scenes. The People have had established in their name an institution that does not call for legislators to take a public stand on issues. Constituents are unable to assess office holders’ positions. Instead, with little deliberation, leaders of a political party will anonymously order legislation to die.

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The Multnomah County DA is unable to obtain indictments for officers who kill, yet juries of the victims’ peers repeatedly find wrongdoing. Court orders and jury awards set a precedent by which municipalities have an inducement to settle, rather than take cases to trial.

Heirs of Aaron Campbell received $1,200,000 in a settlement with the City of Portland following his homicide pursuant to a welfare check by police. The Multnomah County DA did not bring an indictment against the killer, Officer Ron Frashour, for criminal conduct. Never has the firing of an officer deemed to have used excessive force been upheld by arbitration. SB747, also introduced by private citizens, would make it illegal for Oregon’s largest cities to write such escape clauses in contracts with police unions. This bill languishes in Senate General Government, Consumer and Small Business Protection Committee, on which Prozanski serves.

Settlement costs for the homicide of James Chasse grew to exceed $3,000,000. Multnomah County settled for $925,000 and the City of Portland subsequently hired Bret Burton, a sheriff who used force on Chasse. Instead of being held accountable, Burton was recently placed in a position of authority, for implementing reforms to police use of excessive force against persons perceived to be in mental illness.

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