"I read the news today, oh boy
About a lucky man who made the grade
And though the news was rather sad
Well, I just had to laugh."John Lennon and Paul McCartney, 1967
Some politics is local.
With all the news about the Trump trial, Ukraine aid, Israel, the Florida six-week abortion ban, and Grants Pass at the Supreme Court, why am I boring readers with talk about Jackson County judges?
I am trying to fill a news hole.
I will get back to national issues soon, although I don't see much to laugh about.
I am not an attorney and I have never met Judge David Orr. Local attorneys I respect tell me Orr is an adequate judge -- not good, not a disaster. They tell me he is slow and unpredictable, which isn't good in a judge. I have no independent judgment. His former colleague on the bench, Joe Charter, and the current district attorney, Beth Heckert, are on record recommending he be replaced. Both had close-up views of Orr's work. Johan Pietila, a senior assistant in the County Counsel's office, is his opponent. I have never met Pietila either.
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| David Orr |
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| Johan Pietila |
The whole process seems to me like a poor way to choose our judges, but that is the Oregon system. I look for recommendations from people who seem to have first-hand information.
Four years ago Orr ran for judge with a partisan "whisper campaign," running as a wink-wink Republican, with his name listed in GOP voters guides. Now I notice few signs with Orr's name anywhere, and multiple signs for Pietila. I don't see Orr signs clustered among Republican candidates this time around. Maybe Republicans came to the same conclusion as a majority of attorneys who supported Pietila instead of Orr in the bar poll. Or maybe Orr decided that now that he is the incumbent he would switch messages and strategy and emphasize that he is not a secret partisan. Orr's new slogan is "Justice Without Politics," and his voters pamphlet says he does not accept campaign contributions.
I expect to vote for Pietila, based on the faint-praise word-of-mouth comments I hear about Orr. But since I published District Attorney Beth Heckert's comments -- with more to come from her in a future blog post -- out of a sense of fairness I will publish Orr's response to Heckert.
Orr issued his own media release yesterday. He did not send it to me, but he did send it to local TV station KOBI, which published it. Good for them. Locally-owned KOBI makes efforts that no other media outlet does. No other broadcaster or newspaper even mentioned Orr's response, much less published it.
Here is Orr's comment, as presented by KOBI.
1. Ms. Heckert did not attempt to appeal any of the rulings she complained of.2. The district attorney enjoys no special prerogative in making judicial complaints – any person may do so. Many people do so, and there is no consequence to the complainant if the complaint turns out to be meritless.3. Until last year, Oregon had a state-wide problem with district attorneys abusing the recusal process to cherry-pick judges. District attorneys had the power to recuse a judge without demonstrating a reason, overriding the will of the voters who elected the judge to office. Between 2016 and 2020, motions barring judges from criminal cases were filed in 20,687 cases across Oregon, overwhelmingly by district attorneys. Michael Gillette, a former Oregon Supreme Court justice, wrote the last major decision on the recusal statute three decades ago. Testifying before the legislature last year, Gillette explained that when they issued the opinion, the Supreme Court justices didn’t anticipate disqualification of judges from an entire class of cases for months or years, “preventing judges from carrying out the function they were elected to perform.” He said “the result is a system that’s broken.” (The Oregonian, May 19, 2023.)In 2023, Senate Bill 807 corrected this problem, and now district attorneys must demonstrate a reason for a recusal. This aligns Oregon’s procedure with most of the rest of the country. As a result, I am no longer recused from district attorney cases. I will continue to require accountability from all parties appearing before me, regardless of who that party may be.
It is also a matter of record that the two main cases leading to the DA’s recusal motion centered on transparency of DA and police operations. In one, a deputy district attorney had filed a case that resulted in an internal investigation regarding mishandling of evidence. The internal investigation was conducted by an MPD sergeant who was romantically involved with (and later married) the deputy DA who had filed the case. The DA objected to the release of the records of the internal investigation to the defense, but were seeking a lengthy prison term for the defendant. I ordered the release of the records from the internal investigation. In a second case, it was found that MPD has a written policy that allows MPD to decide internally, without informing the DA, whether or not to disclose certain types of evidence in criminal cases. This practice is flatly prohibited by a 1995 ruling from the United States Supreme Court (Kyles vs. Whitley, 514 U.S. 419), and I did not allow the DA to proceed in that manner in cases before me. These cases were cited by the DA in their recusal motion. The district attorney may wish to issue an additional press release explaining their position on those matters.
5 comments:
Elections by voters who know little or nothing about the position or the candidates is no way to ensure the best candidate gets the job, but neither are appointments. Miscarriages of justice are all-too-common in our legal system. There's another method of selecting judges known as “merit selection.” Maybe it would be worth trying.
Putting the issues raised by DA Heckert aside, let's not pretend her press release was NOT political. DA Heckert could have filed her complaint and NOT issued a press release. There was absolutely no reason to issue a press release. The fact is she is endorsing Judge Orr's opponent. This is not to justify anything reported on originally; but let's not pretend the DA's office is not playing politics here because it clearly is by issuing a press release discussing the filing of a complant. Again, it is not normal for a party to inform the media that it is filing a judicial fitness complaint. In fact judicial fitness proceedings are confidential (except where a reprimand or sanction is determined to be justified). This is done to preserve the integrity of the bench. The DA's office's current action breaks protocol. To suggest the only losers here are the two named judges is erroneous. Unlike Peter, I think the publicity of the filing of judicial fitness complaints also leaves a black mark on DA Heckert's office as well and the candidates she is openly endorsing. To the extent she issued a press release at all, she could have simply said she disagreed with the order being vacated. Instead, she issues a press release THEN goes on TV and doubles down. This is not a good look for the bench or bar period because it ALL looks political and petty.
Hmm. Anonymous @ 12:41 PM seems to have a lot of knowledge of the judicial complaint process. I wonder who it could be?
I have no idea who that "Anonymous" person is. Nor who is this anonymous commenter who asked the question.
I have mixed feelings about anonymous comments, so I delete about half of them. I suppose I thought it only fair to allow a comment questioning Beth Heckert's decision to call out in public the decision by Bloom to reverse the blanket recusal, and backdate it.
I will write about this later. My impression of Bloom generally is quite positive. His decision to try to backdate the decision to make Orr's claim that the recusal was completed, not pending, is an example of a decision that backfires. I presume good intention on Bloom's part, but the net effect on Orr's campaign is negative. If I were overthinking this, I would think that maybe Bloom knew exactly how bad this was for Orr, and he attempted the backdate the recusal reversal knowing it would be noticed, and objected to, as a way to pretend to help Orr while actually knowing it would damage him. Machiavellian. But now I am thinking like a Henry James novel, which characters cleverly doing one thing that is best interpreted as meaning its opposite. Too clever for real life.
My presumption is that Judge Bloom really wanted to do a favor for a colleague, but that it in fact was a miscalculation. Judge Bloom has every right to favor one candidate over another, but not the right -- if I understand how judicial ethics rules work -- that he shouldn't use the power of his office to help him by trying to reverse time. But maybe it is legally just fine, legally and ethically. I suppose the bar system will sort that out.
What I know is that this incident looks weird and that is a net negative for Judge Orr. It would have been best to have done nothing. Hardly anybody knew anything about this, and few of those cared very much. Now it is a thing that several thousand people read about, from this blog alone.
Did Bloom help write Orr's response?
These people are all employees funded by tax dollars. It's important the DA's office be transparent, especially in matters of judicial fitness.
KOBI is not known for its journalism prowess, which may be why Orr sent his news release there.
I won't be voting for Orr or Bloom.
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