STATE OF OREGON, Plaintiff-Adverse Party, v. RANDY GRAY, Defendant-Relator.
(CC 21CR19107) (SC S068673)
STATE OF OREGON
July 28, 2022
370 Or 116 (2022) | 515 P.3d 348
Argued and submitted February 23, a peremptory writ will issue July 28, 2022
In an original mandamus proceeding before the Oregon Supreme Court, relator, a criminal defendant who had already been charged with a felony by district attorney‘s information, invoked his statutory right under
A peremptory writ will issue.
En Banc
Original proceeding in mandamus.*
Rian Peck, Visible Law LLC, Portland, argued the cause and filed the brief for defendant-relator. Also on the brief was Christopher Marin Hamilton, CBMH Law, Portland.
Paul L. Smith, Deputy Solicitor General, Salem, argued the cause and filed the brief for plaintiff-adverse party. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
* On petition for alternative writ of mandamus from an order of the Multnomah County Circuit Court, Angel Lopez, Judge.
Cassidy Rice, Portland, filed the brief for amici curiae American Civil Liberties Union of Oregon and Oregon Criminal Defense Lawyers Association.
GARRETT, J.
A peremptory writ will issue.
GARRETT, J.
This
The relevant facts are procedural and undisputed.
Relator is the defendant in the underlying case in Multnomah County Circuit Court. In April 2021, he was charged by district attorney‘s information with (among other things) the felony of assaulting a public safety officer,
A district attorney‘s information may initiate a felony prosecution. See
Shortly after the information was filed, relator‘s defense counsel notified the district attorney that relator intended to appear as a witness before the expected grand jury proceeding. Such an appearance is authorized by
“A defendant who has been arraigned on an information alleging a felony charge that is the subject of a grand jury proceeding and who is represented by an attorney has a right to appear before the grand jury as a witness if, prior to the filing of an indictment, the defense attorney serves upon the district attorney written notice requesting the appearance.”
In addition to giving notice that relator would exercise his statutory right to appear, relator‘s counsel later emailed the district attorney, expressing relator‘s desire to have his counsel present in the grand jury room and asserting that he had a right to the presence of counsel under the
Relator then filed a motion in the trial court for an order allowing counsel to attend. He noted that his right to counsel had already attached. He contended that the
The state objected to the motion on the ground that, by statute, grand jury proceedings are closed to all but certain designated persons, of whom a witness‘s attorney is not one. See
At the hearing, relator made the additional argument that the Oregon Constitution gave him the right to have his counsel present in the grand jury room. He also expanded on his contention about what that right entailed, arguing for the first time that his counsel could not only be present but could take an active role, including objecting to questions and directing relator not to answer questions.
The trial court denied relator‘s motion, ruling that relator‘s exercise of his statutory right to appear before the grand jury did not entitle him to have his counsel present in the room with him, but that counsel could wait outside and be available for consultation.
Relator then filed this proceeding, seeking a writ of mandamus directing the trial court to grant his motion. We allowed an alternative writ, and after briefing and argument, the matter is now before us. Relator contends that the trial court erred, and that
II. DISCUSSION
A. Overview of Grand Juries in Oregon
“The origin of the grand jury is veiled in obscurity.” State v. Gortmaker, 295 Or 505, 510, 668 P2d 354 (1983), cert den, 465 US 1066 (1984) (footnote omitted); see id. at 510-12 (reviewing available history). The cases agree, however, that the grand jury serves a “high function,” not only of bringing to trial those persons justly accused of crimes, but also of safeguarding the citizenry against arbitrary, malicious, or unfounded prosecutions. Id. at 512; see United States v. Mandujano, 425 US 564, 571, 96 S Ct 1768, 48 L Ed 2d 212 (1976) (describing grand jury as “an integral part of our constitutional heritage” whose “historic office has been to provide a shield against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance“); State v. Burleson, 342 Or 697, 703, 160 P3d 624 (2007) (grand jury “serves a crucial role in protecting individual liberties” by being “a brake on the state‘s potential abuse of the accusatory process“).
The institution of the grand jury is provided for in the Oregon Constitution, which also gives the legislature authority to enact implementing legislation. See
The grand jury is composed of seven persons sworn to inquire of crimes committed or triable in the relevant county.
In Oregon, a felony may be charged initially by the mechanism of either a grand jury indictment or a district attorney information. See
The grand jury considers whether “all the evidence before it, taken together, is such as in its judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.”
The grand jury hears the testimony of witnesses under oath. See
In general, the district attorney conducts the examination of witnesses before the grand jury.
“Except as provided in subsections (2) and (3) of this section and ORS 132.250 and 132.260, no person other than the district attorney or a witness actually under examination shall be present during the sittings of the grand jury.”
B. Defendant‘s Statutory Right to Testify Before Grand Jury
The case before us arises from a relatively recent statutory change to grand jury proceedings. In 2015, the legislature granted defendants the right, codified at
The relevant statutory text regarding a defendant‘s right to testify is contained in
“(12)(a) A defendant who has been arraigned on an information alleging a felony charge that is the subject of a grand jury proceeding and who is represented by an attorney has a right to appear before the grand jury as a witness if, prior to the filing of an indictment, the defense attorney serves upon the district attorney written notice requesting the appearance. The notice shall include an electronic mail address at which the defense attorney may be contacted.
“(b) A district attorney is not obligated to inform a defendant that a grand jury proceeding investigating charges against the defendant is pending, in progress or about to occur.
“(c) Upon receipt of the written notice described in paragraph (a) of this subsection, the district attorney shall provide in writing the date, time and location of the defendant‘s appearance before the grand jury to the defense attorney at the indicated electronic mail address. In the event of a scheduling conflict, the district attorney shall reasonably accommodate the schedules of the defendant and the defense attorney if the accommodation does not delay the grand jury proceeding beyond
the time limit for holding a preliminary hearing described in ORS 135.070(2) .“(d) Notwithstanding
ORS 135.070 and paragraph (c) of this subsection, in order to accommodate a scheduling conflict, upon the request of the defendant the time limit for holding a preliminary hearing described inORS 135.070(2) may be extended by a maximum of an additional five judicial days and the district attorney and the defendant may stipulate to an extension of greater duration. During a period of delay caused by a scheduling conflict under this subsection,ORS 135.230 to135.290 shall continue to apply concerning the custody status of the defendant.”
Textually,
That possible inference from the text, however, is countered by the statutory context. The legislature has been quite clear in identifying who may, and who may not, be present in the grand jury room. See
The legislative history of
The legislative history is clear on the issue before us: Although the legislature intended to formalize a defendant‘s right to appear before the grand jury and testify, that intent did not include the right to have counsel present in the room during that testimony. More than one legislator commented on that aspect of the bill. For example, at a public hearing before the House Committee on the Judiciary, Representative Barton confirmed that the bill made no provision for defense counsel in the room:
“Just in case the Court of Appeals ever reviews this transcript, I want to be very clear that the bill that we are reviewing right now does not provide defense counsel entry into the grand jury room.”
Audio Recording, House Committee on Judiciary, SB 825, May 13, 2015, at 0:24:25 (statement
He then expressed his concern about the absence of counsel when the defendant would be testifying under oath:
“It‘s in the interest of the accused that I am extremely reluctant. I‘ve never practiced criminal defense law. But you don‘t have to be Clarence Darrow to figure out that having your client cross-examined on record under oath, in ways that are coming in at trial, without you being there, only bad things can happen. And it just seems like there‘s no better way for an innocent person to go to jail than for them to go in and do this. It makes me extremely nervous on behalf of your clients.”
Id. at 0:25:30. Gail Meyer, appearing as a witness on behalf of the Oregon Criminal Defense Lawyers Association (OCDLA), responded:
“This is a reform that is very much embraced by the National Association of Criminal Defense Lawyers, and the American Bar Association got there first [i.e., had already proposed it]. And the reason is, once the indictment is returned, all hell breaks loose. I mean it just does. And if there is an explanation that can be provided by the target of the grand jury—‘consider this from my vantage point, I understood that I was under fear of bodily harm if I didn‘t do X‘—that is something for the grand jury to consider before the indictment. And so this is a reform that is very much embraced. And again, it‘s embraced by a wide spectrum of organizations. But it‘s fully vetted by the defense bar and it‘s a national concern. And there are some states that are doing this. And again, Representative Barton—*** this does occur in Oregon. It‘s not like we‘re inventing an opportunity that doesn‘t happen. What the bill attempts to do is structure it, so that there isn‘t ad hoc, disparate application of this around the state.”
Id. at 0:26:05.
The legislative history further shows that the legislature declined to have the defendant‘s testimony conducted in the form of direct and cross examinations. As introduced, the bill had permitted a defendant to first “give evidence” to the grand jury, then be examined by prosecutor and grand jury. The introduced bill would have amended
“When the defendant appears as a witness before the grand jury pursuant to this subsection, the defendant shall be permitted to give any relevant and competent evidence concerning the charges under consideration and, after giving evidence, is subject to examination by the district attorney and the grand jury.”
SB 825 (2015), Introduced. That provision was deleted, however. See SB 825 (2015), House Amendments to A-Engrossed (June 1, 2015). As the legislative history shows, both the prosecutors’ bar and the defense bar thought it was unnecessary, even without counsel in the room. The prosecution believed it would allow a defendant to engage in unconstrained speechmaking. Audio Recording, House Committee on Judiciary, SB 825, May 13, 2015, at 0:10:25 (statement of Gail Meyer, OCDLA) (“The district attorneys were concerned that this language allowed the defendant to simply give a monologue—their phrase, ‘to speechify‘—and then be subject to cross-examination.” (Emphasis in original.)). The defense bar expected defense counsel to be working with the prosecutor before any testimony is given. Counsel would thus be aware if the prosecutor was likely to treat the defendant as a hostile witness and seek only to obtain incriminating confessions, and presumably counsel would then discourage the defendant from testifying.4
In summary, then, the legislative history confirms what the text and context suggest: The statutory right to appear before the grand jury does not also entail a statutory right to have counsel present in the grand jury room during the testimony. It also shows that the legislature expected the defendant
C. State Constitutional Right to Counsel
Having concluded that the statute giving relator the right to appear before the grand jury makes no provision for his counsel to be present, we turn to relator‘s constitutional arguments. As we will explain, we agree with relator that he has a state constitutional right to have his counsel present in the grand jury room during his testimony, although, contrary to relator‘s argument, that right is limited to having counsel advise and direct relator regarding his testimony. Because we conclude that such a right exists under the state constitution, and because relator does not argue that he would be entitled to any additional or greater relief under the federal constitution, we have no need to address relator‘s argument under the
1. Overview
The right to counsel is set out in
“In all criminal prosecutions, the accused shall have the right *** to be heard by himself and counsel[.]”
This court has repeatedly addressed the meaning of that provision, including in Davis, 350 Or 440, and State v. Prieto-Rubio, 359 Or 16, 376 P3d 255 (2016). In Davis, this court examined the provision‘s text, its history, and this court‘s prior case law interpreting it, then used the identified underlying principles to inform how the court should apply them to modern circumstances. See Davis, 350 Or at 446 (summarizing steps and citing cases);6 id. at 462-77 (analyzing those steps in connection with right to counsel under
In brief: The right to counsel had been understood historically to focus on trial. See Davis, 350 Or at 464 (summarizing conclusions from text); id. at 468 (summarizing history); id. at 472-73 (summarizing early Oregon caselaw); see also Prieto-Rubio, 359 Or at 24 (same). Changes in the nature of criminal prosecutions and law enforcement, however, led first the United States Supreme Court and then this court to extend the right to certain pretrial proceedings. Davis, 350 Or at 469-71
A defendant‘s right to counsel under both the state and federal constitutions generally begins when criminal proceedings have been initiated, at which point the right is said to attach. See Davis, 350 Or at 471 (discussing federal cases); id. at 473-77 (discussing state cases). Yet the attachment of the right to counsel is separate from the scope of that right: Even after the right has attached, not all pretrial proceedings require the presence of defense counsel. Id. at 471-72 (federal law); id. at 476-77 (state law). The right to have counsel present exists only as to those pretrial proceedings that implicate the need to protect a defendant‘s right to a fair trial.
In State v. Newton, 291 Or 788, 636 P2d 393 (1981), overruled in part on other grounds by State v. Spencer, 305 Or 59, 750 P2d 147 (1988), a plurality of this court used language drawn from the United States Supreme Court‘s
“Any pre-trial adversarial contact of the state and a defendant at which some benefit of counsel would be lost if counsel is not present, that is, at which the state‘s case may be enhanced or the defense impaired due to the absence of counsel, may be considered a critical stage of the prosecution at which defendant has a right to the presence of counsel.”
Newton, 291 Or at 802-03 (giving as examples the surreptitious questioning of an indicted defendant, and the participation of a defendant in a post-indictment lineup identification). Later cases reiterate the same standard in different words, but always focusing on whether the absence of counsel would risk prejudice to the defendant‘s legal interests. See State ex rel. Russell v. Jones, 293 Or 312, 315, 647 P2d 904, 905 (1982) (“[A] criminal defendant‘s guarantee of the assistance of counsel exists at least at all court proceedings from arraignment through probation revocation as well as all post-indictment out-of-court critical stages where, without the assistance of counsel, the legal interests of the defendant might be prejudiced.“); State v. Sparklin, 296 Or 85, 93, 672 P2d 1182 (1983) (“[O]nce a person is charged with a crime he or she is entitled to the benefit of an attorney‘s presence, advice and expertise in any situation where the state may glean involuntary and incriminating evidence or statements for use in the prosecution of its case against defendant.“); Prieto-Rubio, 359 Or at 25 (“[U]nder
2. Application
In this context, one of the first questions to consider is whether there is a “criminal prosecution[],” because the text of
We turn, then, to the question whether relator‘s voluntary testimony before the grand jury is such that he has a right to have counsel present in the grand jury room during that testimony. We conclude that he does.
As a preliminary matter, we note that this situation appears to fall squarely within the text of
“[a] short answer, therefore, is that counsel cannot be excluded from any stage of the criminal prosecution at which a defendant is to be ‘heard[.]‘”
Such a simplistic approach does not fully represent the more detailed legal test set out
As noted above, a defendant generally has the right to the presence of counsel during a proceeding when the presence of counsel could protect a defendant against prejudice as to the criminal charges. See Prieto-Rubio, 359 Or at 25 (right to counsel exists where “counsel‘s presence could prevent prejudice to a defendant“); Newton, 291 Or at 802-03 (defendant has right to presence of counsel when “the state‘s case may be enhanced or the defense impaired due to the absence of counsel“).
Here, relator will be questioned by the district attorney, and under oath. That testimony will be recorded, and it could be used against relator at trial. As sworn testimony in response to the district attorney‘s questions, the proceeding has similarities to a defendant taking the stand at trial. The opportunities for prejudice are manifest: The defendant might waive an evidentiary privilege by failing to claim it, or he might make statements against interest, or he might present testimony in a way that contradicts (or seemingly contradicts) any later testimony at trial. The state is correct that the legislature, in enacting
We also agree with relator that counsel‘s presence in the grand jury room during the defendant‘s testimony would lessen the risk of prejudice. In State ex rel. Russell, we found a constitutional right to the presence of counsel when there was only a low chance that counsel would be able to protect a defendant‘s interests. Regarding the right to counsel at a presentencing interview before a probation officer, this court noted that “little purpose” would often be served by the presence of counsel, and that later procedural opportunities meant that there “rarely” would be a “risk of irremediable harm” if counsel were absent. 293 Or at 317-18. “Yet, circumstances are conceivable where the presence of counsel would be helpful.” Id. at 318. That was sufficient for this court to hold that the defendant had a right to have counsel present for the presentencing interview.
The same is also true for relator‘s testimony before the grand jury. At a minimum, counsel‘s presence means that relator may consult with a fully informed counsel, who will have directly heard the question and can provide relator with informed advice.
We note that there is a common practice of grand jury witnesses stationing their counsel outside the grand jury room so that the counsel may be consulted during the witness‘s testimony. See Sara Sun Beale et al., Grand Jury Law and Practice § 6:30 (Westlaw 2d ed Dec 2021 update) (“Generally a witness who has retained counsel is permitted a reasonable opportunity to consult with counsel outside the grand jury room before and during his testimony.“). We do not think that the presence of counsel outside the grand jury room is a sufficient substitute for the presence of counsel inside the room for a defendant who has been charged and whose right to counsel has attached. An attorney who is not present must rely on a hearsay version of the question, one stripped of context, and relayed by a person who is unlikely to be educated in the law. An attorney who hears the question directly, and in the context in which it was asked, will be better equipped to provide advice.
We therefore agree with relator. Under
The state contends that that conclusion is inconsistent with this court‘s decision in Miller, 254 Or 244. The issue in that case was whether the defendant had validly waived his right to indictment by grand jury when he was unrepresented at the time. Id. at 247-48. This court considered whether the decision to waive indictment was a critical stage, and it held that it was not:
“[United States Supreme Court case law requires] legal representation for an accused at a time when he must take steps or make a choice which is likely to have a substantial effect on the prosecution against him. We do not perceive that waiver of grand jury is such a choice, as we do not believe that such a waiver is actually determinative of whether criminal proceedings could or would be brought.”
Id. at 249. This court then added:
“Had defendant chosen to insist upon indictment, there is nothing that a lawyer could have done to represent him before the grand jury, because that is a closed and nonadversary proceeding. All that a lawyer could have done for him was warn him not to voluntarily testify in front of the grand jury where, while unrepresented, he would have been subject to questioning by the district attorney and the grand jurors.”
Id. The state focuses on the court‘s statement that, if a defendant did choose to voluntarily appear before the grand jury, he or she would be “unrepresented.”
We think that the state reads too much into the words “while unrepresented.” In general, the only time the defendant would be permitted to be in the grand jury room would be as a witness. But Miller was issued before any statute provided a defendant with a right to make such an appearance, and the court was not addressing focused arguments by a defendant whose right to counsel had attached and who sought to appear before the grand jury as a matter of right.
The state suggests that finding a right for counsel to be present in the grand jury room would imply that courts must also allow defense counsel to attend the entirety of the grand jury proceeding—or, more sweepingly, that defense counsel must be permitted to be present for any number of other events during an investigation and prosecution, such as police interviews of every witness. We disagree. We are addressing whether a defendant, who has already been charged, whose right to counsel has attached, and who is testifying under oath when questioned by the district attorney, is entitled to have counsel present in the room for that testimony. We have expressly held that “[c]ollecting and recording existing evidence does not require the presence of defense counsel.” State v. Tiner, 340 Or 551, 564, 135 P3d 305 (2006), cert den, 549 US 1169 (2007) (no right to have counsel present for photographing of defendant‘s tattoos). Moreover, as the United States Supreme Court stated in United States v. Ash, 413 US 300, 93 S Ct 2568, 37 L Ed 2d 619 (1973):
““None of the classical analyses of the assistance to be given by counsel *** suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant‘s absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered.”
413 US at 316-17 (quoting United States v. Bennett, 409 F2d 888, 899-900 (2d Cir), cert den, 396 US 852 (1969) (Friendly, J.)); see also Ash, 413 US at 312 (“In all cases considered by the Court, counsel has continued to act as a spokesman for, or advisor to, the accused.“).
We have agreed with relator that he has the right to have counsel present in the grand jury room during his testimony. But relator also asserts that he is also entitled to have counsel conduct the direct examination of him and then make formal evidentiary objections to the district attorney‘s questions. Relator does not anchor those assertions in any authority beyond the constitutional right to counsel generally, and we do not agree that the right to the presence of counsel necessitates the expansive role that relator envisions. The statutes contemplate
III. CONCLUSION
For the foregoing reasons, we conclude that, when a defendant seeks to testify before a grand jury under
A peremptory writ will issue.