State Ex Rel. Russell v. Jones

1981, peremtory Argued December writ issued and submitted June RUSSELL, ex rel STATE Plaintiff-Relator, JONES, Defendant. 28198)

(SC 647 P2d 904 Metropolitan Defender, Port- Baron, Public Lawrence plaintiff-relator. argued on the With him land, the cause Cournoyer, Christopher Mark Baron, Gail were brief Metropolitan Defen- Public Lerner, Kramer, and Kenneth ders, Portland. Deputy

James E. Mountain, Jr., General, Solicitor argued Salem, the cause for defendant. him With on the Frohnmayer, Attorney brief were David B. General, and Gary, F. General, William Solicitor Salem.

TANZER, J. concurring opinion Lent, J., filed a Linde, J., in which joined. dissenting opinion. Peterson, J., filed a Campbell, opinion. dissenting J., filed a

TANZER, J. a proceeding

This is in mandamus. We take the from supporting facts the alternative writ and documents. pros- Plaintiff is the defendant in an underlying (Hereafter “defendant.”) he is ecution. referred to He a no plea felony charge entered contest of sexual abuse in the first degree. Apparently presentence investigation County performed by was ordered to be the Multnomah That Diagnostic agency requested Center. the defendant interviews, interview, appear including psychological permit refused matter of the defen- practice but as a dant’s to attend the interviews. then Defendant moved to allow his to attend the interviews. The judge, motion was denied the circuit the successor of in this stated proceeding. whom defendant court its reasoning: I well, very counsel],

“I recall Mr. Baron [defense reluctance, accepted only plea of no contest unique importuning yourself regarding after your circumstances of this crime and client’s attitude your justice system. towards the criminal thrust argument urge necessity legal is not so much to the legal counsel as this man someone a advisor but that needs whom more with he trusts would feel comfortable you any argument, at ask that there. You have not made be me, your necessary.” legal convincing least services are no trial concluded that because there was need court services, process require presence due did not the legal would the of denial require of counsel. The writ order the trial allow defense counsel to be vacated and that court present presentence be interviews. for a asserts three constitutional bases

Defendant right presence to is under the

investigation interviews. His first contention I, 11, of the provisions of Article section counsel Constitution, Amendment the Sixth Oregon Second, he asserts States Constitution. United to his not to be ancillary as presence of counsel pros- himself in criminal testify against compelled I, 12, of ecution, Article rights under section guaranteed Fifth Constitution, Amendment under His third contention the United States Constitution. case, that, of this “fundamental under the circumstances fairness,” Process Clause of the by as embodied the Due Amendment, of his mandates Fourteenth Finally, to insure his to a fair trial. trial its discretion defendant contends court abused have denying defendant’s motion to counsel writ at the interview. We issued the alternative to consider defendants have mandamus whether criminal to have counsel attend the interviews. I, Article states that the accused shall have the right “to be heard himself and counsel” in “all prosecutions.” criminal prosecution” term “criminal sentencing, includes at which a stage judicial decision affecting liberty a defendant’s Obviously, future is made. then, a defendant is entitled “to heard himself and answer, therefore, counsel” at sentencing. short is that counsel cannot any stage be excluded from of the criminal prosecution “heard,” at which a defendant is to be includ- ing the sentencing stage, wholly performed whether this is or shared non-judicial persons. answer,

Beyond this short we have the benefit of under Supreme decisions of the United States Court Amendment, which, demonstrated the excel Sixth as is dissent, assure lent historical review in the was intended to to that in Article section 11. protection similar stated decision, case, a they Under those affect this insofar guarantee criminal defendant’s of the assistance of proceedings arraignment exists at least at all court from post-indictment as well as all through revocation where, out-of-court critical without the assistance stages counsel, might defendant interests of the of a Specifically, sentencing stage is a critical prejudiced. guaranteed defendant prosecution at which a L Ed 128, 88 S Ct Mempa Rhay, counsel. 389 US Gladden, 145, 412 P2d 29 (1967); 2d 336 Gebhart to the nature of with the dissenters agree We them differs from principles, application those but our of the our different view that of the dissent because of to which we now investigation, nature of a turn. pronouncing sentence,

Before a trial court will wish to be informed such relevant as the circum- information record, stances of the offense and the criminal social his- tory present and condition and environment of the defen- reports common, dant. were this Before generally provided hear- information was ing by prosecutor, defendant, and defense counsel Today, provides an alternative other sources. ORS 137.530 gathering Instead of the court method of doing such information. may perform directly, probation so it direct officers report court, the initial task on behalf of the and to back to the court: officers, court, when shall

“Probation directed fully investigate report writing on the to the court offense, record, history circumstances of the social defendant; condition and environment of cases, and unless the court directs otherwise individual placed probation report until no defendant shall be on presented investigation of such has been to and considered desirable, by the court. Whenever and facilities exist there- for, investigation physical shall include and mental such defendants.” ORS examinations of 137.530. may designate person proba- than a court also other investigation.

tion officer to conduct the 137.090. ORS alleges presentence investiga- Defendant diagnostic report tor, center, “told [him] for psychological “general interview” as well as for a inter- dispute authority view.” Defendant does not that the designate probation court to one other than a officer to presentence investigation, 137.090, make a authority ORS includes designate diagnostic center and that an anyone psychologist interviewer a as well as else. judge’s gather sentencing election to information through agency a officer or another makes process judicial procedure no less a than when the directly. simply investigation does so an out-of-court inquiry hearing judge. on When the behalf gathered judge, information the informa- has been report may challenged supplemented tion sentencing hearing. the report, The information in the diagnostic confidential other than certain defendant, reports, may disclosed to the state and be the also, Sullivan, 137.079, Buchea v. Or ORS see party may and either the fact- complete P2d by offering aggravation mitigation, evidence in or gathering words, In investigator ORS 137.080-137.100.1 other the a informally judge function, part, for the in which performs by be performed part would otherwise the as of the judge sentencing Functionally, formal the is hearing. investigation part a sentencing procedure. of the

A defendant is to the entitled assistance of counsel the degree same when the judge sentencing seeks infor mation in open from him and when court the does so indirectly through the a agency probation out-of-court of officer. we Therefore conclude that a just as hearing to determine liberty defendant’s future is a stage a prosecution at which the assistance of counsel cannot denied, a presentence be so is interview. order barring counsel was unauthorized.

We not suggest every do defense is duty accompany bound to her probation his or client at the Often, purpose office. little would be served by presence of counsel at a interview and a conscientious 1ORS 137.080: plea guilty, against “After or verdict of after a or verdict the defendant plea acquittal,

on a of former conviction or in a case where discretion is upon punishment inflicted, conferred the court as to the of the extent to be court, upon suggestion party of either that there are circumstances which may properly aggravation mitigation punishment, considered or may, discretion, summarily specified upon its hear the same at a time and party may such notice to the adverse as it direct.” ORS 137.090: justify alleged aggravation mitigation “The which circumstances are or punishment presented by testimony shall be of witnesses examined open court, except that when a witness is so sick infirm as to be or unable attend, deposition may place, his of court at and taken out such time

upon party, person to the notice adverse before such authorized to depositions, may report take presentence court directs. court consider investigation pursuant conducted to ORS officers person designated 137.530 or the court.” other ORS 137.100: thereto, “If he the defendant consents be examined as a witness in alleged aggravation justify relation mitigation are gives to the circumstances which punishment; testimony request, his but if he at own generally party.”

then he must submit to be examined the adverse necessarily obliged would not feel defense interests. is protect guilt attend to his client’s After no issue, inquiry background, is into defendant’s longer hearing, report situation and attitude. At the present given by the to disclosure subject information defendant objections can make evi- and defense counsel statements defendant. Given these dence additional rarely would there be risk of procedural opportunities, from absence of irremediable harm counsel Yet, interview. circumstances are conceivable do presence helpful. of counsel would be We where every required hold that interview or that his absence would constitute Rather, only hold ineffective assistance counsel. we I, require and the Amendment Article section Sixth a may present- barred from attendance not be interview. ence under

Defendant’s contentions self-incrimina- provisions of Article Fifth tion Amendment, all, premature. if material at are Other than 137.100, below, authority find ORS discussed we no to probation compel unwilling for a or officer defendant to make statements in the course of the sentenc- he may whether in or of court. Nor ing process, out to to interviews. No issue of compelled psychological submit no self-incrimination arises because there is stat- compelled authority provide any other to defendant to utory compel or information, incriminatory.2 it is of whether regardless

If a himself or called as a defendant offers is pursuant or to mitigation aggravation witness ORS see n 137.100, compulsion he would be subject then to to a testify generally question compelled self-incrimina- might post- tion arise. At time some of the issue scope privilege presented, conviction of the would be but presents this case no issue. setting is' any presentence

The decisive factor or of the capacity profession the official psychi respect compulsory presentence investigation from differs in this 161.315 disease or defect. examination under ORS for evidence mental atric Bowe, progeny Shepard have and its no 250 Or P2d 238 application this to case. made, setting inquiry or the in which the is but investigator willingness provide of the defendant to informa rather the to know expected A defendant with counsel tion. investigation is to assist the purpose that a more determining whether a convicted defendant court in to what to or incarceration and likely respond Scott, extent. State v. 390, 399-400, 390 P2d 328 (1968). Indeed, 137.530, although exceptions, ORS it allows placed probation” that “no defendant shall be on directs Thus, presentence report until a is considered. the decision cooperate by the court desired providing whether likely by knowledge information to be motivated practical consequences: leniency, likely if one wishes he is cooperate in the presentence investigation. If a defendant cooperate, attorney declines to or if his himself in a injects way which reduces inquiry effectiveness examination, then the defendant subjects himself to sen tencing complete based on less information and the direc tion applicable. of ORS 137.530 becomes With counsel, assistance of advisedly defendant can decide voluntarily whether it is in his best interests to submit and, so, interviews and examinations whether with or without his attendance. case,

In this example, if defendant declines to cooperate or if the defendant’s attends and his service interferes with ability of the psychologist effective, conduct an complete psychological examination, then the judge required impose to upon sentence noncooperative defendant based on the other information which, before the court according to the petition, is: plea “Plaintiff-Relator entered his of no contest because psychological factors: the circumstances of this case involve sexual young girls, contact with two and an evalua- by court-appointed tion psychologist Howard —Dr. Dewey it psychologically would be too trau- —disclosed plaintiff-relator matic for plead guilty to have to or face Dewey Dr. trial. plaintiff-relator considered and noted that had twice Dammasch diagnosed before been State Hos- pital suffering schizophrenia paranoid from type.” — In this, such cases as defendants and defense counsel are likely to find it in their self-interest impede intention, counsel’s he would more

process. Were examination at discreetly advise his client not to submit reasons, expect practical all. For these we effects of our cases, helpful but to the holding negligible to be most clients’ process protection or to the of the fact-gathering attorneys exceptional in the cases where defense rights deem it to attend or to presentence investigations advisable examinations. psychological witness anticipate why It is hard to a defense would wish to attend a interview or examina- professional perform pre- tion or what service he could Wade, States v. Cf., United 388 US 87 S Ct sent. (1967). Here, trial L Ed 2d 1149 consistent with the observations, a need for the judge’s petition alleges essentially support moral rather provide what is Nevertheless, that counsel can- than service. we hold authority and the trial court had no to do so. not be barred Peremptory writ issued.

LENT, J., concurring. opinion

I in the result. I concur in the concur I, the court Justice Tanzer that Article section of the precludes barring Constitution the trial from Oregon counsel at the attendance of this defendant’s upon our decision interview.1 I see no reason to rest Constitution; States there- Sixth Amendment United fore, join part opinion. I do not of Justice Tanzer’s

The Sixth Amendment is not its terms applica- ble to the It applicable only states. so far protection as its necessary under the Fourteenth Amendment to the United States Constitution to ensure that a defendant not “life, deprived liberty, state of his property, process without due of law.” This defendant asserts that he a right present by has to have counsel reason of the terms Oregon majority Constitution. The of this court Where, therefore, agrees right. will enforce that can prevail I must under Article Because conclude that defendant Constitution, necessary I reach his would not consider it self-incrimination, concerning claims fundamental fairness and abuse of discretion. depriving any cognizable the state claim that there process? liberty property That due without life, or him of affording the state is irrelevant because has become claim process need, in either is no law. There under state him due logic contention. Amendment law, to reach his Sixth argument that reason, also, the dissent’s

For this stage” presentence a “critical interview is not phrase prosecution result. That not affect the does criminal refers only Sixth the federal of the court’s discussion precedents. under an accused of Amendment Article counsel, on himself or to be heard guaranteed “all rests, decision which the court’s stages” prosecutions,” of “critical limited to prosecutions. opinion. joins Linde, J., in this dissenting. PETERSON, J., majority I, section holds that Article of this court guarantees that defense 11, of the Constitution presentence attendance at a cannot be barred from counsel interview and plurality result under would reach the same I States Constitution. Amendment to the United Sixth disagree with both conclusions. presentence investiga- majority holds that part procedure,” “just sentencing

tion “is a and that hearing as a liberty to determine a defendant’s future stage prosecution is a at which the assistance denied, counsel cannot be 293 Or at 317. The so is a interview.” interview be the equivalent portion of the information- functional gathering process formerly during conducted the court sentencing hearing However, itself. a distinction should be drawn interview and the sen- between tencing hearing purposes extending defendant lawyer present. to have a Gladden, 145, 148-149, Or 412 P2d

Gebhart underlying describes the rationale (quoting sentencing hearing at a from as follows (5th 1950): States, Martin v. 182 F2d 225 Cir United “ ‘ very proceeding “The at the time of nature of the defendant’s imposition of sentence makes the necessary require- counsel at that time the constitutional ment is to be met. There is then a real need for counsel. then, advisability appeal shortly, The of an must or be opportunity presenta- determined. Then is the afforded for offense, tion to the Court in of the of facts extenuation conduct; explanation in of the defendant’s to correct reports past errors or mistakes in of the defendants’ [sic] record; and, short, appeal equity to of the Court in to penal Any its administration and enforcement of laws. Judge experience acknowledge trial Court must that frequently mitigation, such disclosures result or even suspension, penalty. That it is also true that result, contrary discussion sometimes has a does not detract possibilities from the fact that of this the nature and important stage proceedings of the as make the are such ’ ” presumably prejudicial.” absence of counsel at this time added.) (Emphasis below,

As will why be seen the reasons assistance required sentencing of counsel do not exist at presentence opinion interview. never majority any satisfactory why necessary reason it is that an expresses attorney present. be On the finds it contrary, majority anticipate why “hard to a defense would wish to case) (293 (other support” than for “moral in this attend” 320), be “[o]ften, purpose Or at states little would at a inter- presence presentence served of counsel (293 317), “circum- merely Or at concludes that view” would stances are conceivable where the counsel (293 318). be Or at helpful” centuries, concept punishment

For the central a tooth-for-a-tooth. eye-for-an-eye was retributive: an Oregon of the early But as Article section provided punishment that “Laws for the Constitution reformation, and principles crime shall be founded on the century begin- The 19th saw the justice.” not of vindictive century has sentencing, of individualized and the 20th nings diagnostic process popu- an enlightened seen the advent of investigation. as the larly referred to Oregon providing The first statute 2, now passed was Or Laws ch reports concerning present- Present statutes ORS 137.530. use, in ORS their are found reports, preparation ence the Corrections requires 144.790 and 144. ORS chapters sentencing to the report to furnish Division felony. of a is convicted any person court whenever * * “* recommenda- contain reports requires statute defendant, sentencing respect tions with incarceration or alternatives incarceration including preparing officer Division the Corrections whenever All appropriate. alternative such an report believes court information shall be for the recommendations authority of the court.” limit the and shall not report copies of requires 137.079 ORS court considered information all other written the district made available imposing sentence prior time a reasonable or his and the defendant provides: 137.530 sentencing. ORS court, officers, directed shall

“Probation when fully report writing investigate and to the court on record, offense, history circumstances of the social defendant; and condition and environment of cases, and unless the court directs otherwise individual report placed probation until the no defendant shall be on investigation presented to and considered of such has been desirable, by the court. Whenever and facilities exist there- for, physical investigation shall include and mental examinations of such defendants.” specifically provides present-

ORS 137.077 and shall be available report public ence is not record court, only sentencing to the the Corrections Division courts, review the district agencies, appellate related attorney and the defendant or the defendant’s counsel. felony in all cases Although presentence report required is (unless requests the defendant otherwise and the court concur, 144.795), statutory there is no prosecutor ORS requirement report personal that such a include a interview with the defendant. mandatory provides

Except where a statute usually involves by the court penalty, imposed the sentence judge. This sentencing judgment exercise Scott, from State v. 390, 399-400, P2d 237 Or statement (1964), apposite: is sentencing complete “The court in has the unrestrained discretion to sentence a convicted defendant up particular to the maximum for the crime as fixed However, legislature. Oregon, the Constitution of Art § 15, requires sentence, object reformation be the justice. Apart not vindictive requirement, inal, from this constitutional sentencing today court considers the crim- crime, as much fixing as the the sentence. The application principles of these two can cause the same court give entirely two different sentences to two defendants committing convicted of the same crime. sentencing provided

“The great court must be with a variety of competently information order that it can * * perform its most burdensome function *. The issue after * ** Rather, conviction is Was the not: crime committed? the issues at this time are: What is the character of the society defendant? Will he be a menace he is not likely respond Will proba- incarcerated? he be more * * imprisonment? tion or to *.” Sullivan, 222, 228, In Buchea v. 497 P2d we stated: “* * * rphe theory behind the use of investi- gations is that the sentence should be individualized to the him, merely it offender: should fit the crime. If criminal correction is intended to effect reformation and rehabilita- tion, provide protection public, well as to to the history sentence should be tailored to the defendant’s life personal characteristics.”1 commentary presentence procedures in describes the federal courts on reports sentencing process in the as follows: function of the procedures, including development sentencing “The sentencing intimately report, with the rehabilitative model of connected * * assumption premised on the *. It rehabilitative model] [the knowledge sentencing judge, the offender’s with an intimate of that a armed evaluations, background can scientific and clinical character and and aided program appropriate will rehabili- and treatment determine an sentence model, judge sentencing seeks to define Under this tate the offender. situation, prescribes personality and social and then offender’s exact program. is the and treatment Because rehabilitation ‘individualized’ sentence theoretically objective, sentencing judge

primary less concerned with is society. achieving deterring future.crime or retribution for sentencing three model involves based on the rehabilitative “Individualized First, sentencing justice system. premises a in the American related may sentence the defendant select a sentence. He has broad discretion to commitment, period period imprisonment a of or fixed indeterminate of to a sentence, fine, The probation, suspended of these. a or some combination a Second, limits, decision, statutory generally a judge’s unreviewable. within by a conducted The interview is not many cases, In the interviewer would be officer. police officer, should the defendant defendant’s probation. prosecutorial on examination is placed nature; rather, the aim is much information to obtain as of an imposition appropriate relevant possible interview is not initiated the prosecution, sentence. The generally the interview adversarial. It is conducted nor is prosecuting neither the defendant’s nor the police-initiated It is not inter- present. custodial interrogation in the sense of the in Edwards v. rogation Arizona, 477, 1880, 451 US 101 S Ct 68 L Ed 2d 378 (1981).2 every aspect

sentencing judge complete must have information about of diagnosis life in order to make an accurate and choose an effective offender’s Third, quasi-administrative made in a sentence. setting omitted.) decision is (Footnotes virtually procedural safeguards.” free of triallike Hall, Sentencing: Empirical W. Due Process at An S. Fennell and Courts, Legal Analysis Reports the Disclosure Presentence in Federal (1980). 93 Harv L Rev 1621-1622 reports prepared conviction incident to are and used after Presentence sentencing, Concerning imposition incident to the use of information of sentence. York, Black, speaking v. New 33Y US the court in Williams Mr. Justice 246-251, applicable rules L observed that the 69 S Ct 93 Ed 1137 necessarily apply prosecution phases in a do not of a criminal the adversarial opinion sentencing hearing. The states: * * * “* * * guilt. sentencing judge the narrow issue of is not confined to type statutory limits is to determine task within fixed or constitutional His Highly punishment guilt has been determined. after the issue of and extent of appropriate sentence is the his selection of an relevant —if not essential —to possible concerning life

possession the defendant’s of the fullest information punishment concepts individualizing have And modern and characteristics. necessary sentencing judge denied an not be the more made it all requirement rigid opportunity pertinent information obtain properly applicable the trial.” to restrictive rules of evidence adherence <(‡ % ¤ “* * * concerning probation report information draws on And the modern type

every aspect this information and extent of a defendant’s life. testimony open totally impractical impossible with cross- court if not make endlessly delay procedure criminal administration could examination. Such in a retrial collateral issues.” case, addressing descriptive the role Compare language recent from a more this parole analogous figure, the officer: of an reflects parole decisions toward these officer’s attitude “The * * Gagnon Scarpelli, 411 US punitive rather than focus rehabilitative 778, 785, L36 Ed 2d 656 93 S Ct 326 is summary,

In the interview made mind, with of the defendant often a the best interests environment, important rehabilitation an with noncustodial pros- is neither atmosphere and in an which objective, ecutorial nor adversarial. 11, Constitution, I, Oregon

Article of the section terms, that all guarantees its “in crimi- simplest reduced to ** * right to prosecutions nal accused shall have the be the * * I, 11, *.”3 heard himself and counsel Article section by essentially provisions I, in Article was taken from identical 1851, and 13, section Indiana was the Constitution Carey, C. A adopted without amendment or discussion. 402, (1926).4 Constitution 468 History was not The to counsel in the States United contrary, derived from common law. On English arose as a counsel as known in the United States to English criminal perceived inadequacies to in the reaction system. person with a system charged law Under trial, felony except the aid was denied of counsel persons accused of regard questions, though to even in civil cases were entitled parties misdemeanors policy full The was English assistance of counsel. by maxim “the was rationalized counsel prisoners.” Although policy subject vigorous was criticism, unchanged by the rule remained Parliament until 1836.5 See United 354-356; 4 Blackstone Commentaries 3 provides prosecutions “in The Sixth Amendment all criminal * * * accused have the Assistance of Counsel for his defense.” shall 4 provisions 13 were derived from Article The 1851 Indiana constitutional (“That prosecutions, 1816 in all criminal the accused Indiana constitution of * * * compelled hath a himself shall not to be heard and counsel be himself’), give adopted nearly against which were verbatim from the Ohio evidence adoption. Twomley, no constitution and received little or discussion before R. (1945); Swindler, Rights, L Indiana Bill 20 Ind 211-212 7 Sources and J (1978). 554 Documents of United States Constitutions history analysis “right thorough heard himself’ clause of Lent, J., concurring opinion in State Article is contained (1982). 516, 527-536, Douglas, 641 P2d 561 criticized This limitation on the to counsel was described and Blackstone as follows: sworn, any consequence, jury it be a cause of “When marshalled, examined, opened, usually and the evidence indictment crown, prosecution. But it settled for the is a enforced law, prisoner upon his

rule common that no counsel shall allowed L Ed Ash, 300, 306-310, Ct 93 S States v. 413 US 60-61, S Ct Alabama, (1973); 287 US Powell v. 2d 619 Present (1932). Clinton, Right R. 55, 77 L Ed 158 in Criminal Constitutional Guarantee Emergent An Defense: Trials, Ind L Rev 720 first to counsel of a grant express An Body of Massachusetts prerevolutionary appeared Documentary A Schwartz, Rights: The Bill of 1 Liberties. (1971). History provided: 69 It plead his “Every unfit to man that findeth himselfe any employ to in Court shall have Liberties

owne cause helpe except, to against man whom the Court doth him, paines. his give he him noe fee or reward for Provided Answering exempt partie him selfe from This shall not the meete to Questions person in shall thinke as the Court Body Art 26 demand of him.” Mass. of Liberties Schwartz, reprinted supra in 1 at 74.6 issue, crime, point trial, any capital upon general of law in unless some the rule, (however may palliated proper which it be debated. A shall arise to understood, law, rightly that the when under of that noble declaration of cover is, prisoner; see that that shall be counsel for the shall strictly regular) at all of proceedings against seems to be not him are and prisoners by English law. piece the humane treatment of with the rest of * * * defect, they judges that never so sensible of this themselves are And ask, questions prisoner to scruple him what counsel to instruct to allow a him, respect matters questions of fact: for as to with to matters even ask to * * trial, law, they *. arising of counsel. are entitled to the assistance on the of ****** guilty upon question of or not “Upon issues which do not turn the trial of facts, capital charge, upon prisoners whether for guilty, under a but collateral * * * felony, always It the full assistance of counsel. were entitled to treason or extraordinary England denied the very should have that the law of is life, honor, most, counsel, viz. defend the when it is wanted assistance of of property of that maxim individual. It is the extension and all the of an cause, every equity, in that warrants shall be heard his own natural one greater justice; is much in for there hired advocates courts of

the admission of persuasion powers explanation state of inequality in the natural in and of mind, by experience.” 4 improved it is education the human than when omitted; original.) (Footnotes emphasis in Blackstone’s Commentaries 355-367. Precedents, also, English Rackow, Right and American to Counsel: See F. Ser, XI, (1954). Mary Qtly, & 3d 3-12 Wm Body the 1683 New a model for Liberties served as The Massachusetts Privileges. Pennsylvania Charter of the 1701 of Liberties and York Charter provision concern- no contained York Charter of Liberties Note that the New Pennsylvania early that an ing document, Also note the defendant’s to counsel. Upon Agreed “Pennsylvania Laws Frame of Government the 1682 by rejected English at least 12 of the rule was The 13 supra, original Ash, colonies,7 v. 413 US at United States supra, 306-307; Alabama, 62-65, US Powell although scope counsel, of the colonial by practice, granted as allowed in charter or statute or example in the role of various A vivid differed counsel colonies.8 presented in the 1735 one colonial trial Upon England,” England provided, Agreed that “in &c” as one the “Laws way, persons freely appear persuasions may in their own all courts all according of all manner, plead personally their own cause to their own and there or, Schwartz, themselves, unable, added.) (Emphasis The Bill their friends.” (1971). History 51, significant Rights: Documentary seq It et of Pennsylvania Penn, subjected himself was authored William who was document political England, counsel or which defense to a trial was conducted without freely speak, (although were allowed to witnesses although Penn and co-defendant concerned, oath). Pennsylvania even The future colonists were not under plead leaving prior England, cause before another one’s need to have court, “appear” The Frame of one’s own behalf. as incident to the on Privileges repealed replaced Charter of Government 1682 was V, Penn, provided, “all in Article also with William which associated privileges as their of Witnesses and Council criminals shall have the same Schwartz, Rights of Mankind 49 Prosecutors.” B. Great express provision appeared following An for the to counsel in the revolutionary (which adopted by people, through constitutions were elected conventions, charters): Pennsylvania replace Rights, colonial Declaration of Art (1776) (“That offenses, prosecutions IX to be all for criminal man hath council”); (1776) Rights heard his Declaration 14§ himself and Delaware of (“That offences, every right prosecutions in all for criminal man hath the * * * counsel”); (1776) Maryland Rights, to be allowed Declaration of Art XIX * * * (“That, prosecutions, every right in all a man hath to be allowed counsel”); Constitution, (1777) (“that every New York Art XXXIV in trial on misdemeanors, impeachment, party impeached for or indictment crimes or counsel”); (1777) Rights indicted shall Declaration X§ be allowed Vermont of (“That heard, prosecutions offences, right in all for criminal a man hath to be counsel”); Rights, (“And and his Art § himself Massachusetts Declaration of Part XII (1783) Hampshire Rights, every subject New Bill of Art XV shall * * * right proofs, may him, produce have a to to be all be favorable to himself, council, fully election”). Clinton, in his heard his defence or his at R. Right Emergent to in The Present a An Constitutional Guarantee Defense: Trials, (1976); Schwartz, Rights: Criminal 9 Ind L Rev The Bill of 729-730 Documentary History (1971). granted to 231-375 The counsel was also predated rights. which the federal bill See Powell later constitutions and statutes of Alabama, 61-65; 527-528, supra, Douglas, 287 US at State v. (1982) (Lent, J., Rackow, Right English concurring); P2d 561 F. The to Counsel: Precedents, Ser, XI, Qtly, Mary & and American Wm 3d 12-20 points only example, For York and Island counsel could address New Rhode Massachusetts, above, only law. In of the was as noted the exercise limited Clinton, supra plead “unfit to owne to one who found himself cause.” 723-724. in New counsel a criminal defendant colonial limited to afforded York was as follows: described in New Zenger, Peter printer, trial of the seditious libel on the defen attorneys appeared respected York.9 Two bail, arrest, reasonable after his demanded dant’s behalf court’s two to the commission objections and filed attorneys in held the two the court response, In justices. deliberately, them, apparently and disbarred contempt attorneys “the most brilliant Zenger’s defense remove from J. likely to success.” and the ones most in the Province (1965). The court History Marke, Vignettes Legal Zenger. of its choice to defend attorney an appointed then on guilty of not plea entered appointed secretly However, supporters Zenger’s Zenger’s behalf. Hamil lawyer, Andrew prominent Philadelphia retained a permitted ton, appeared grudgingly who at trial and was prosecutor Hamilton and the Zenger’s conduct defense. and the before the court engaged vigorous legal argument in in summa jury length jury Hamilton addressed prerevolu- of this Zenger acquitted. tion. was The details tionary colony trial demonstrate that even in a in which the defense expressly guaranteed, to counsel was not attorney played respect role in the trial with significant the technicalities of the law. Madison, in the Bill of for drafting Rights

James different Congress, recommendation to considered some 210 “* * * chiefly fought, this field few forensic battles were because counsel [I]n only occasionally employed Attorneys appeared was in criminal cases. time, Dongan’s apparent in defendants but it is from the sources that English respecting restrictions of law to counsel were followed. That cases, say, only points appear felony is to there on law could counsel judges indulged prisoners beyond is no evidence that the colonial this limit as cases, liberty England. In sometimes occurred misdemeanor of defen- represented stages proceedings respected, dant to be at all was provincial court minutes are numerous instances where made Goebel, appearances, pleas, argued entered and the like.” Jr. & T. motions J. (1944). (Footnotes Naughten, Law New Enforcement Colonial York 573-574 omitted.) Island, 1647, provided Rhode in its code of that: «* * * indicted, any person privilege shall be the lawful that is [i]t procure plead any poynt clearing law that make for the innoeencye.” Levy, Origins Right of L. The Fifth his Amendment: (1968). Against Self-Incrimination 356 proposition establishing The case is often cited as the case the that truth is a by Vignettes in defense to libel. The trial is described in detail Julius Marke Legal History, by Irving Rights, 224-240 Brant in The Bill of 175-182 (1965). by which had been proposed ratifying

amendments supra Schwartz, eight 983, conventions states. at * * * He did use the “right by 1167.10 to be heard that language counsel” was later included in the Oregon Id. at constitution, 1027, although language pro- was posed by minority Pennsylvania. Our research has any reason not disclosed for Madison’s choice of words and it that there no appears congressional was debate of the clear, provision. however, substance of the It ultimately adopted by the phraseology drafters of the (“to Constitution in 1859 be heard himself and counsel”) predated the 1789 language of federal bill of (the rights right “to the Assistance of Counsel for his defence”) by years, some 13 and there is no historical basis provisions to counsel” of the two interpreting “right constitutions differently. colonists,

It is apparent in guaranteeing “right by counsel,” to be heard contemplated assistance of counsel in adversarial stages pro- of criminal ceedings including presentation evidence, examina- tion of witnesses and the presentation legal objections, motions, arguments to the judge jury as to the law and the I nothing facts. have found in state or federal history constitutional leads to the conclusion that * ** “to be heard guaranteed by counsel” Article Oregon constitution, and the defendant’s “to the defence,” Assistance of Counsel for his guar- anteed the Sixth Amendment to the United States Constitution, designed were to achieve other result.

This court has held that the right to counsel certain pretrial stages is an extension of a defendant’s ratifying eight officially unofficially proposed conventions of states Schwartz, supra rights bills of as amendments to federal constitution. at 983 express “right proposed Three states included an to counsel” in their Pennsylvania, minority amendments. The first was where the issued an “Address Dissent,” widely sought and Reasons of which was disseminated and which * * * * * * grant capital prosecutions “in the defendant all and criminal to be himself and his counsel.” Id Virginia heard 658. and North Carolina proposed rights grant bills of would a criminal defendant “to be which his favor.” Id allowed counsel 967. The New York convention included following provision part rights: of the official declaration of “That all * * * Prosecutions, ought producing Criminal the Accused have the means of his Id and the Witnesses assistance of Council for defense.” at 911-918.

331 Newton, 291 in court. State v. by counsel representation (1981). 788, 802, P2d 393 Or 636

«** * pre-trial state and Any contact of the adversarial be lost which benefit of counsel would a defendant at some is, present, at which the state’s case if may not that counsel is impaired the the due to or the defense be enhanced counsel, may stage be considered critical absence of right has a to the prosecution at which defendant * *” * Newton, at supra, v. 291 Or State of counsel. 802-803. “in refer to the to counsel

Both constitutions term prosecution” all “criminal prosecutions.” has in itself, recognized to the trial but been is not limited procedures as a number of other including decisions Gladden, 51, 54, 437 Miller v. 249 Or arraignment, as: Williard, 376, (1968); appeal, v. 241 Or P2d 119 Richardson 378, (1965); preliminary hearing, P2d 156 see State v. 406 Clark, 231, 234, (1981); post-indictment P2d 810 291 Or 630 Meyers, 561, 564, lineup, App State v. 24 Or 546 P2d see revocation, (1976); sentencing Perry and Williard, 145, 149, (1967); v. 247 Or 427 P2d 1020 Gebhart Gladden, (1966); P2d all being v. layperson lacks the situations in which unaided often cope which procedures education skill to training, are at intricate. is that to counsel point times exists, only in trial of a criminal stage not the formal prosecution, but also in situations which the same States v. dangers birth to the itself. United gave Ash, 300, 311, 2568, 37 2d 619 S Ct L Ed 413 US premise Underlying all of these decisions rules is to the assistance of counsel in the accused entitled where, without prosecution claims of the meeting the counsel, might prejudiced the defendant assistance or her defense. to counsel in which the All of situations situations has state involved trial-like upheld been this pros- has been a confrontation between which there may begin as ecutor the defendant. The confrontation early through and it continues arraignment stage as the that, every But not stage. that does mean must way, the defendant step intermediate In a present. have afforded (a “throw- photographic nonconfrontive situation such as down”) display, Supreme Court of the United States adequate protec has held that cross-examination at trial I, counterpart under the federal to our Article section tion Ash, supra, 11. United States 413 US 313-314. adversarial, con- interview is neither frontive, part prosecution,” nor a of a “criminal I, term in Article section 11. Whether term is used eyes of one of prosecution” through “criminal be viewed through eyes the constitution the framers of interview is knowledgeable person situation, in nature. In such a Article prosecutorial require given does not that defendant be coun- The need to heard longer sel. Guilt is no an issue. be the defendant has present, is not there hearing to be heard counsel at the constitutional requires ORS 137.079 that report which the is considered. “a report have access to the defendant or his These sentencing.” procedures reasonable time before the under Article protect rights are sufficient the defendant’s harm from 11. There is no risk of irremediable presentence at the interview. the absence of counsel I also that disagree plurality’s with conclusion to bar lawyer presentence defendant’s from the interview provisions would contravene the of the Sixth Amendment plurality of the Constitution of the United States. The opinion’s analysis appears Sixth Amendment to be: A defendant has the to the assistance of counsel at all where, “post-indictment stages, out-of-court critical without counsel, the assistance of interests of the defen- prejudiced” Sentencing dant 293 Or at 315. “is a might stage prosecution critical of a criminal at which a defendant counsel,” “just 293 Or at and that as a guaranteed liberty to determine a defendant’s future sentencing hearing is a of a stage prosecution at which assistance interview,” denied, presentence counsel cannot be so is a (and Therefore, 293 Or at 317. the Sixth Amendment Constitution) “require that counsel interview.” 293 Or presentence barred from attendance at plurality clear bases altogether at 318. It is not whether premise on the that its Sixth Amendment conclusion stage” critical interview is an “out-of-court interview is a “court premise on the The stated conclusion is that proceeding.” “stage prosecution.” is a of a interview Court of the Supreme I am convinced that the defendant’s Sixth United States would not hold in this case. The rights Amendment have been violated to counsel has been held to exist cases which involve which were adversarial or confrontive proceedings nature, evidence from involving obtaining or situations lips Supreme the witness’s for use at trial.11 The Court’s based, part, upon Sixth holdings Amendment are at least the need the defendant from the protect for counsel “* * * prejudice layman an unaided little skill in [with] arguing coping procedural law or intricate system encounter in the absence of [would counsel].” Ash, United States v. 300, 307, L 413 US 93 S Ct Ed 2d 619 has been extended to various appropriately out-of-court events that are considered to be “critical” of a criminal stages prosecution because counsel, situations, presents absence of in such danger substantial prejudice. irremediable The function of the law- yer in such essentially situations “has remained the same as Ash, supra, 413 US his function at trial.” 312.

One such out-of-court event is a pre court-ordered psychiatric trial interview. Most courts hold that a defen dant is not entitled to have counsel at a court- pretrial psychiatric interview, ordered which the defendant attend, must or lose the right to assert a defense of lack of Baird, See United States v. mental capacity. 700, 414 F2d Bohle, (2d United States v. 1969); 711 54, Cir 445 F2d 67 (7th Cohen, 1971). Compare, United States v. Cir 530 F2d 11 Court, Wainwright, Supreme 335, 792, in Gideon v. 372 US 83 S Ct 9 L (1963), Ed 2d 799 held to the assistance of counsel is a fundamental Gideon, right, Supreme essential fair trial. Consistent with Court has held guilty plea, that the defendant has a Townsend to counsel at on a Burke, 736, v. 1252, (1948); 334 US 68 CtS 92 L Ed 1690 at a hearing, Mempa Rhay, 128, 254, v. revocation 389 US 88 S Ct 19 L Ed 2d 336 Alabama, (1967); arraignment, 52, 157, Hamilton v. at an 368 US Ct 7 L Ed 82 S Alabama, (1961); preliminary 1, hearing, Coleman v. 2d 114 at a 399 US 90 S Ct Wade, 1999, (1970), 218, 230-231, lineup, US v. 26 L Ed 2d 387 and at a 388 US 1926, L S Ct Ed 2d 114 (5th 1976).12 perceive 47-48 Cir I a greater need for the

assistance situation; of counsel in such a more than in the present case. the majority’s

When conclusion is examined in only light majority opinion itself, the words of the it is apparent intuition, the conclusion results from my deduction. To illustrate I point, quote authority from an majority with which the cannot agree opinion: but own —its “* ** Often, purpose little would be served presence of counsel at a interview and a consci- attorney necessarily entious defense obliged would not feel protect to attend to his client’s guilt interests. After is no issue, longer inquiry background, is into defendant’s present hearing, report situation and attitude. At the given by subject information the defendant is to disclosure objections and defense counsel can make evi- dence and additional statements defendant. Given these procedural opportunities, rarely would there be risk of irremediable harm from the absence of counsel at Yet, presentence interview. circumstances are conceivable * * * helpful. where the of counsel would be # * * * anticipate why attorney

“It hard to a defense would wish to attend a interview or examination or * ** professional perform present. what Here, service he could observations, judge’s consistent with the trial petition alleges provide a need for the what is * * *” essentially support moral rather than service. 317-18, 293 Or at 320. point These statements to the conclusion that there is no pressing need for the attendance of at a present- ence question interview and that is better left to the case, discretion of the trial in a not as a particular criminal case. See every matter of constitutional J., dissenting opinion Campbell, 293 Or at 339. Bowe, (1968); Shepard, State ex rel Ott v. v. 250 Or P2d 238 Cushing, Cushing, (1980), rel and State ex Ott 291 Or 617 P2d 610 psychiatric pretrial examina 630 P2d 861 all involved court-ordered cases the defendant’s was tions on behalf of the state and all of those permitted by the trial court to attend. strangest majority’s those utterances are

The having to the constitutional which, created after depreciate interview, then at the of counsel assistance purpose “little would It is stated for its exercise. need presentence at a of counsel served be attorney would defense interview,” “a conscientious protect obliged necessarily client’s attend to feel to expect longer “guilt issue,” that “we is no interests,” that holding negligible practical to be in most our effects of 320). (293 exists, it will be 317-18, If the cases” exercised attorneys, Or many, perhaps defendants, and their most interest, and the or self out of caution competently intelligently waived. to be would have (9th 1970); Cupp, v. Cir Johnson 425 F2d 612 Schram L Ed 1461 464-465, Ct 58 S Zerbst, US My court, no decision of has found research deprivation involving federal, a claim of state or allow for failure to constitutional federal or state presentence interview. While attend a to dispositive precedent nor is, itself, neither absence even such claims suggestive proper strongly result, the absence occurring suggests incident are not that abuses expressed and that the fears interviews to or that a are either without basis defendant in his brief the proper sentencing response to the can be made incident hearing.13 chapter opinion in state heralds a new

This court’s petition upon which, law, based and federal constitutional majority, “alleges according a need for the essentially support provide rather than moral what is quantitative Although Or at 320. service.” 293 persons increased, I envision of accused will defense J., practical points Campbell, separate dissenting opinion out further The why situation. The most counsel exists this reasons no constitutional point any significant inability majority opinion puzzling aspect its necessary attorney’s why attendance is or reason premise: symmetry (Major opinion may possess logical majority interviews. sentencing proceeding. Minor at a to attendance of counsel defendant is entitled proceeding. part Conclu premise: interview is a present counsel at a the attendance of a defendant is entitled to sion: Therefore why inability interview), to state Achilles heel —an conclusion has an ence but its possesses good sense. its deduction effort, defense as a qualitative increase in the

no overall opinion in this case. result of court’s CAMPBELL, J., dissenting. prosecu- in criminal hold that defendants

I would I, section under Article do not have an absolute tions Amendment of or the Sixth 11 of the Constitution at lawyer present to have a the United States Constitution I would also note that as interviews. presentence their in his sound sentencing judge of due the process matter in a a defendant required to allow discretion at the attorney present to have his case the particular not such a case. interview. This is I, section 11 and the Article my opinion It is by “weighing should be resolved problem Amendment Sixth rel v. interests. State ex Ott competing the balancing” or (1980), State ex rel 695, 617 P2d 610 Cushing, 289 Or Richardson, 555 P2d 202 276 Or Johnson v. Sullivan, Or 497 P2d v. Buchea consequence are cut and questions of “No constitutional competing requires weighing of Their dried. interests; solution question in this case is no the constitutional Sullivan, supra, at 236. exception.” Buchea v. Richardson, ex rel Johnson “In State (1976) rights of the stated that the P2d 202 we people, weighed against ‘the must be defendant competent, per- state, present represented ” raised the defendant.’ on the defense suasive evidence Cushing, supra, 701-702. rel Ott v. State ex attorney defendant to have The be balanced interview must presentence at the present prompt, have a people weighed against system preparing efficient, and reasonable reports. interview takes mere fact that (arrest of a arraignment) the commencement

place after (sentence) conclusion before prosecution attorney or nature. The district it adverse in not make does The defendant is not not present. that office is deputy does reporter A court or cross-examined. as a witness sworn present- of the interview. The general not make a record by officer. normally probation ence interview is conducted the interview is to determine if the One of the functions of certain probation. Subject defendant is a candidate for exceptions presentence report is made available to the defendant or his counsel. ORS 137.079. (1982) majority says: at 293 Or 317 every duty suggest

“We do not defense is accompany her client bound to his or Often, purpose little be served office. of counsel at a would interview and a conscientious necesarily obliged would not feel attend defense protect guilt longer his client’s interests. After no issue, inquiry background, present is into defendant’s report hearing, situation and attitude. At the of infor- given by subject mation defense counsel can make and additional statements cedural defendant to disclosure and

objections evidence pro- defendant. Given these opportunitites, rarely there irre- would be risk of present- mediable harm from the absence of counsel at the ence interview. Yet circumstances are conceivable where presence helpful. the that of counsel would be We do not hold presence required every present-

the of counsel is at ence interview or that his absence would constitute ineffec- Rather, only tive assistance of counsel. we hold that Article require and the Sixth Amendment that may present- counsel ence interview.” not be barred from attendance at a In effect the has held that the majority defendant has an present absolute constitutional to have counsel interview, at the presentence gone but then has further give “fatherly by saying State Bar some advice” that the defendant should rare only exercise this on occasions. accept

It is not certain that this bar will “fatherly place, advice.” In the first it is the defendant’s attorney’s right. and not The choice to exercise only so, the right rests with the defendant. Even some lawyers may think they subject possible that will be to a malpractice complaint they do not attend the may perceive interview. Others that their failure to attend post-conviction may will The defendant trigger proceedings. attorney “get his the interview to to have demand money’s worth.”

Many attorneys attend the who baggage. presence The will be excess interview attorney, person matter, third for that will tend given a The defendant should be inhibit chance to interview.1 prove she can on one that he or handle one thereby that or she a candidate for interview and show he get probation. probation officer will a more accurate complete picture if no of the defendant the interview persons present. are third opportunity, I would hold

Given the prompt, people have a efficient and reasonable reports outweighs procedure preparing for attorney pres- present an at the defendant’s to have up people Setting an interview for three entence interview. system. necessarily If the slows down the instead two attorney majority presence is not of an in the vast cases necessary, efficiency procedure is reduced—the attorney spent If the be elsewhere. time of the would better attorney it is inhibits the interview of the of purpose.2 employ pay for one unreasonable to last system Oregon thing justice is for needs upon place it an burden when this court additional sputters, squeaks groans. present system, occasion, on agree are I there certain isolated cases attorney present- may need at the which the defendant example, been For where the defendant has ence interview. interrelated crimes and has been convicted indicted two necessary pending it of one and the other is still to make sure that that an person present at the interview is the dominant If the defendant’s pressed keep interjecting into himself the discussion. he will be hard from juvenile Anyone year parents knows old with his who has interviewed 17 questions. who the answers 2 Gagnon money authority talking “vulgar” subject as about such a for 1756, Scarpelli, L Ed 2d 656 where the United v. 93 S Ct US attorney Supreme considering at a to have an Court defendant’s States probation parole hearing page 665: revocation said at or “Certainly, decisionmaking process prolonged, financial will State, appointed counsel, longer for counsel

cost to record, State —for possibility judicial be insubstantial.” review —will not and the pending during defendant does not discuss the case interview. way problem

The most reasonable to handle this give process, defendants, all as a matter of due petition sentencing judge permission presentence to have an attorney represent them at the interview. sentencing judge upon then, would based his sound attorney necessary discretion, determine if an was in the procedure individual case. This would follow that set out Supreme Gagnon Scarpelli, the United States Court in (1973), regarding US 93 S Ct 36 L Ed 2d 656 necessity represent of an the defendant at a probation parole hearing. page or revocation The Court at 666 said: justification

“We thus find no for a new inflexible constitu- respect tional rule requirement to the of counsel. We think, rather, the decision as to the need for counsel must case-by-case be made on a basis the exercise of a sound discretion authority the state charged with responsibility for administering parole system. Although participation of counsel probably will be both undesirable and constitutionally unnecessary in most hearings, revocation there will remain certain cases in which fundamental fairness —the touch- process stone of due require provide the State —will expense its indigent probationers counsel for parolees.” particular judge

In this case the trial exercised his discretion and denied the defendant’s motion to have his attorney present judge at the interview. The making ruling said: “* * your *The thrust of argument urge is not so much to necessity legal as a advisor but that this

man needs someone with whom he trusts and would feel * * * more you comfortable and ask that be there. I think many there are having reasons that pre- sent at this state of the interview would inhibit * * process.

I would hold that the trial did not abuse his denying discretion. A further reason for the defendant’s petition judicial is that mandamus will lie to control Biggs, discretion. State ex el Ricco v. 255 P2d For these reasons I dissent.

Case Details

Case Name: State Ex Rel. Russell v. Jones

Court Name: Oregon Supreme Court

Date Published: Jun 30, 1982

Citation: 647 P.2d 904

Docket Number: SC 28198

Court Abbreviation: Or.