Guest Post: Who should be Jackson County's next district attorney?

The district attorney recommends Patrick Green.

Patrick Green

How would I possibly know if a candidate for district attorney was good at prosecuting cases? How would I know if a DA candidate would charge the right people with the right crimes? How would I know if a DA candidate would do a good job managing the DA's office?

I wouldn't. So here's what I do.

I pay attention to the opinion of people in the best position to know -- in this case the incumbent district attorney. I consider her a credible source. She has good word-of-mouth support from the attorneys I know and she has been re-elected several times. 

I also look at the campaigns of the candidates. Those measure campaign activity and resources, which is an indirect signal of community support. Bigger campaigns are better. But campaign size doesn't do a good job signaling fitness for offices like judges and district attorney office. Those jobs aren't about representation. Those roles require a professional skillset. So I look at job experience. I also notice who presents themselves with clarity and integrity in campaign literature and ads. I consider campaign behavior a signal of how one might act when in office.

Today is part one, a recommendation by the incumbent. 

Coming soon is part two -- job experience and whether each campaign presents it with clarity and integrity.

Guest Post by Beth Heckert

Heckert

Patrick Green vs. Alyssa Bartholomew: Recommendation Patrick Green

The Jackson County district attorney position is not often a contested election. It really is an important position in our community, so I feel strongly that voters need to make an informed decision. I have served as your district attorney for 12 years and have been a prosecutor for 36 years in Jackson County. The position is nonpartisan and decisions that are made by the district attorney’s office should not be political.

I have worked with both candidates; seen how they interact with individuals and how they handle themselves in court. Patrick is my chief deputy. He runs the office in my absence. He has been a prosecutor in my office since 2016. He has handled the most complex cases, including murder cases, domestic violence and other violent crimes. He has dedicated his career to being a prosecutor and serving the community in that capacity. 

His opponent, Alyssa Bartholomew, has been a public defender since 2005, working for Southern Oregon Public Defenders. She took a break from her job as a public defender and worked for Jackson County as a Senior Assistant County Counsel from 2007 - 2009. Being a public defender is a very noble profession. The system doesn’t work unless you have good competent attorneys on both sides. However, they are separate and distinct occupations. She has never prosecuted a criminal case in Oregon. You cannot simply be a defense attorney one day and the next be an experienced prosecutor, ready to lead the office. Also, to my knowledge, Alyssa has never held a position that required supervision skills. The Jackson County district attorney’s office is the largest law firm in the county, with 22 attorneys and 32 support staff.

There is a significant unanswered question that I have not heard Alyssa Bartholomew address. She will have a conflict with cases involving her previous clients. How will those cases be handled if she becomes the elected district attorney? Who will prosecute those cases? After she announced her candidacy, she was appointed to a murder case and many other cases. This issue will be a complicated one for the office. I don’t want to see victim cases delayed while this is sorted out.

Alyssa Bartholomew has also applied to become a Jackson County Circuit Court judge and the Medford municipal judge over the last few years. I sat on the governor’s panel of local attorneys to interview the judicial candidates. Alyssa stated to that group that being a judge was her passion. Maybe it is, but passion is important in this position as well. There have been four Jackson County district attorneys since 1968, and none have sought a judicial position. The district attorney should not be a stepping-stone to other positions.

If Patrick is elected, on day one, he will hit the ground running. There is no learning curve. He has supervised attorneys and staff in the office; he has helped manage our budget; he has prosecuted cases. He is familiar with all our staff from advocates to attorneys. 

Patrick Green is a dedicated prosecutor who has worked tirelessly for victims in our community to get justice. Patrick has support from law enforcement. He has already proven that he works collaboratively with community partners to improve the criminal justice system. Patrick has the qualities that I believe are the most important to the district attorney's office into the future: dedication, passion and experience.

 

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Bragging about the stock market

"Monday, Monday, can't trust that day
Monday, Monday, sometimes it just turns out that way
Oh Monday mornin' you gave me no warnin' of what was to be"

     "Monday, Monday," Written by John Phillips, sung by The Mamas and the Papas, 1966

I don't trust the stock market. 

I hope Democrats don't use it as evidence that Biden is doing a good job.

CNBC Headline for this photo: "BIDEN FLAUNTS STOCK MARKET RECORD HIGHS"

The U.S. stock market is connected to the economy, but only loosely. If the stock market "made sense," based on earnings or the general business climate, then it would be predictable. In that case, investors would not collect a risk premium for investing in stocks. The market's wild unpredictability is a feature, not a bug.

The U.S. stock market has averaged growth of just under 10% a year for the past century, but there are three giant caveats.

     1. That is the past. The future might be far different. 

     2. The stock market can disappoint at the most inconvenient times.

     3. You don't get average. 

Thirty years as an investment advisor taught me that it is dangerous for clients to read financial plans that predict compounded future returns. Those smooth lines of compounded average values presented in financial planning tools are hopes, not plans. The Boomer experience is unlikely to be repeated. The investment experience of people age 60 to 80 benefited from the industrial plant of the U.S. being left intact while those of other industrial powers -- Germany, Japan, U.K., France, and the Soviet Union -- were damaged or obliterated. That shaped the past, but is unlikely to shape the future.

You don't get "about average" returns. You get what you get. Even a good outcome over a four-or eight-year presidential administration, one, in fact, averaging 10% a year, is not a succession of returns of 8%, 12%, 9%, and then 11% -- returns that cluster around the average. Returns ping-pong up and down and are rarely very close to the 10% average. Average comes from a mix of happy surprises and great disappointments.

Here is a chart of actual returns:

There is a slight cluster around 10% but most yearly returns are well above or below that midpoint.  Psychologically and politically, there is a lot of difference between zero and plus-20%. Year-to-year returns don't necessarily revert to the mean. Notice the years 2000, 2001, and 2003, when there were three negative years in a row.  Lower prices compounded lower. 

Sometimes the stock market can be up, even in the face of economic disaster. The U.S. economy was terrible in 2020 -- remember the Covid slump, with businesses shut and people unemployed?  The stock market was up sharply for the year. A year that people remember as the "good times" of the pre-Covid Trump presidency, 2018 -- the era Trump brags about -- was a down year in the stock market.

This is a political blog, not a financial advice blog, so I will repeat my main point. Democrats can point to job growth, to low unemployment rates, to a growing GNP, and to the rebuilding of our domestic computer chip industry. Those are good things and there was a basis for talk of "Bidenomics," even if the public didn't feel it. There is ongoing progress on income inequality. Incomes for people in the bottom 20% of earners -- the working poor -- are outpacing inflation, welcome news for the people most hurt by the off-shoring of manufacturing. (But even that improvement has critics. Republican politicians and Fox News hosts complain about prices at McDonalds, and blame it on their workers getting $15/hour. Yesterday morning I watched Fox's Greg Gutfeld complain that $15/hour was far too high a wage to pay for easy, entry-level work like theirs.) 

The stock market was at an all-time high on Monday.  Monday was good. But Democrats should not set a potential trap and embarrassment for themselves.  Assume nothing.

Can't trust the stock market or Monday, either one. It gives no warning. Sometimes it just turns out that way.

                                                ---    ---

Tomorrow: Guest post endorsement for district attorney in Jackson County, Oregon.

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Joe Charter explains

Jackson County Judge David Orr had a recusal problem.

Now he has a new problem.

Today's blog is about a topic that wasn't on the radar of most Americans until now --  functioning courts. Who cares? Now lots of us do. Americans are learning from the Trump trials that the smooth operation of federal and state courts is a matter of consequence.

Jackson County's District Attorney Beth Heckert filed a complaint against Judge David Orr and Presiding Judge Benjamin Bloom with the Commission on Judicial Fitness and Disability. She asserted that Judge Bloom used the power of his office to help fellow Judge David Orr's re-election, and that Judge Orr misrepresented his ability to hear criminal cases. The district attorney felt her attorneys could not get a fair trial from Judge Orr, so she requested and received an order that recused him from hearing criminal cases. Judge Bloom lifted that recusal a week ago. In a report to local media, Heckert described Bloom's attempt to backdate the effective date of that action. Heckert said Judge Orr had told the Rogue Valley Times that the recusal had been lifted. It had not been -- at least not yet. Heckert said Bloom used the power of his office to try to make Orr's statement to the media accurate --but after the fact. She said this campaign help was unethical behavior for both judges.

That is the political issue affecting Judge Orr's contested election. Judge Bloom is unopposed in his re-election.

Joe Charter addresses a second issue, the legal and legislative one. The Oregon legislature thought that recusals were getting out of hand. It was exacerbating court congestion of exactly the kind Jackson County is experiencing. What was the problem with the old law? What is the new law?

Joe Charter is the Jackson County Justice of the Peace, a position he held from 2004 until 2020, when he was elected to the Circuit Court. He was re-appointed to the Justice of the Peace position by the Oregon governor in January 2024. Charter worked with Judge Orr in the Juvenile Court for more than a year, and is well aware of the docket problems caused by recusals and disqualifications of judges.

Charter

Guest Post by Joe Charter

I write to provide some background for the claims currently being made regarding disqualifications of judges. I realize that most non-lawyers will not be very interested in recent changes in the law. However, a broader context may help to understand the claims being made.

Prior to January 2024, ORS 14.260 provided that “any party . . . or any attorney” in any case could file a motion and affidavit to disqualify a judge assigned to their case, which “shall be granted” unless the judge moved against challenges the good faith of the affidavit. Most do not because it is difficult to successfully challenge subjective good faith.

The affidavit required for disqualification could simply state that the party or attorney believes they “cannot have a fair and impartial trial or hearing before the judge, and that it is made in good faith and not for the purpose of delay. No specific grounds for the belief need be alleged.” SB 807 (2023) changed that last sentence to provide an exception in criminal and juvenile delinquency cases. The new law allows the judge moved against to request a hearing before a disinterested judge from another judicial district.

The disinterested judge then determines whether (1) disqualification “effectively denies the judge assignment to a criminal or juvenile delinquency docket”; and (2) “there is a reasonable good faith belief that the judge lacks fairness or impartiality.” The burden of proof is the party making the motion, and the disinterested judge views the evidence on an objective basis. The new law essentially shifts the burden of proof in criminal cases to the party requesting disqualification rather than the judge, and imposes an objective standard, rather than allowing just a subjective good faith belief to disqualify a judge.

The procedure is unchanged for civil cases. There, the party gets ‘two free bites at the apple’ of changing the assigned judge based on a subjective good faith belief that they cannot receive a fair trial. The motion has to be filed within 10 days after the judge’s assignment, and cannot be filed after a judge has already ruled on an issue in the case. ORS 14.270. This latter provision prevents a party from disqualifying a judge because they did not like a ruling the judge made in the case.

In a May 5, 2023 Oregonian article one judge called blanket disqualifications a “bullying tactic.” On the other side, one DA said “Judges like anybody else have biases and histories” which mean that they should not hear certain cases. My opinion is that most judges don’t like to admit that they may have biases. The ‘implicit bias theory’ posits that we all are influenced by unconscious associations and judgments. Opinions differ on whether individuals can overcome their subconscious biases through training.

Although Judge Orr’s statement (Peter’s Blog, 4.24.24) says otherwise, the Oregonian article states that criminal “defense lawyers have filed more motions than prosecutors . . ..” Klamath County had more than half of the disqualification motions filed during the 2016-2020 period and the majority of those were filed by the DA according to the Oregonian. In Marion and Washington Counties, the majority of disqualification motions were filed by defense attorneys, not the DA.

Although explanations for disqualification motions were not previously required, the Oregonian article noted that in one Multnomah County case, the DA’s 16-page memorandum outlined multiple cases. DA Heckert’s July 2021 disqualification request outlined five separate cases over a six-month period. (Peter’s Blog, 4.23.24).

I have no opinion regarding any disputes between the DA and Judge Orr. SB 807 was effective January 1, 2024. Nothing in the bill suggests that it applies to prior cases. If new criminal cases are assigned to Judge Orr, both he and the DA would have to follow the new procedure for each of those cases.

Neither the judicial system nor those who participate in it are perfect. Blanket disqualifications of judges, without examining the reasons for any alleged bias, can cause additional expense for visiting judges and docket disruptions, particularly in rural counties. So can overuse of the “two bites at the apple” affidavit procedure in civil cases.

The criminal justice system balances power between the executive branch (the DA), the judiciary, and citizens. The legislature weighed competing policy considerations and adjusted the balance in SB 807, which hopefully will provide better clarity going forward. The objective of the system should be unbiased decision making for all.

 

Tomorrow: The U.S. stock market is at an all time high. Democrats are tempted to cite it as proof that Biden is doing a great job. That's a mistake.

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Easy Sunday: Bizzaro World

In Bizarro World everything is backwards.

If you were a child in the 1950s you know about Superman and "Bizarro World." In Bizarro World all the Superman characters are distorted opposites of themselves. Earth is a cube. Superboy is a brat. Everything is the opposite of normal. Bad is good.

The U.S. Supreme Court has gone Bizarro World. 

Justice Sam Alito:

"Now, if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?"

Justice Sonya Sotomayor asks Trump's lawyer:

"If the president decides that his rival is a corrupt person and he orders the military. . .to assassinate him, is that within his official acts for which he can get immunity?" 

John Sauer responds: "That could well be an official act [and therefore immune from prosecution.]"  

Robert Reich, professor, author, and former secretary of labor comments.

"Alito had the chutzpah to claim that if a president thought he might be prosecuted for whatever he did to cling to office — including inciting a riot at the U.S. Capitol — he would likely keep clinging by any means possible. Ergo, according to Alito’s upside-down logic, the possibility of post-presidential prosecution could 'lead us into a cycle that destabilizes the functioning of our country as a democracy.'

Hello? Surely Trump’s insurrection destabilized American democracy more than special prosecutor Jack Smith’s attempt to hold Trump accountable for it."

 

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Ukraine defense. Self defense.

We aren't sending money to Ukraine. We are sending weapons: Artillery shells, drones, missiles, tanks.

We build those here in the USA. 

Aid to Ukraine is an American jobs program.

I have mixed feelings about what constitutes a just and necessary war, including this war in Ukraine. But I am OK with our helping Ukraine protect itself from Russia. 

As a young man of draft age during the Vietnam War I considered battles over territory, markets, and influence to be a game played by selfish old men to gain power at home while they sent young men off to fight and die. These lyrics sung by Edwin Starr in 1970 seemed about right to me:

"War, huh, yeah
What is it good for?
Absolutely nothing
Say it again, y'all
War, huh (good God)
What is it good for?
Absolutely nothing, listen to me, oh"

I still think that. But I recognize that it is a dangerous world, and that some of those selfish old men lead other countries. So my feelings are more conflicted now.

Most of the opposition to our giving aid to Ukraine comes from the political right. Trump tilted toward Russia and he brought his party along. There is an argument to be made that we forced Russia's hand. The West's alliances with Slavic countries crowded Russia. Russia perceived a threat. This should not be hard for Americans to understand. Countries are nervous about borders. Over half of Americans consider immigration to our country an "invasion," the repopulation of the U.S. by the descendants of the indigenous people White Americans displaced 200 years ago. They are at our southern border. They are unarmed, impoverished, and eager to work at hard-to-fill jobs. Poland, the Baltic countries, and Ukraine are armed rivals, allied with yet more rivals. We should not be surprised that Russia felt it needed to do something. 

Still I hope Ukraine survives. I want a peaceful global order and Russia's invasion upsets that order. I want Russia stopped.

The U.S. is fighting this war alongside Ukraine the way that Americans prefer to fight. We are the arsenal. Other people do the fighting and dying. Our provisions; their blood.

Opponents of our assistance to Ukraine describe our aid as an expensive act of generosity. That is why they talk of giving money to Ukraine. We don't send much money. We send weapons made in U.S. factories. Marc Thiessen of The Washington Post has written two columns describing where weapons are made, and which U.S. representatives oppose Ukraine support notwithstanding their own districts benefitting from those jobs, shown in red on the second map.

The American economy shifted from being a manufacturing powerhouse into a service economy. China manufactures things to sell us. We manufacture debt to sell them. There is a strategic problem with this. The ability to manufacture weapons at home and in quantity is a matter of national security. In the 1940s, Germany and Japan had technologically more advanced weaponry than we did, but that wasn't what counted in a prolonged war. We overwhelmed them with our ability to produce ships, planes, and munitions. The weapons of the present and future are drones and missiles, but critical parts of the supply chain to make those weapons are in China. We lost our capacity to mass-produce artillery shells-- 19th and 20th Century technology -- and it turns out that Ukraine needs those. 

Insofar as America reduces the likelihood of war by being strong and self-sufficient in our ability to provision our military -- and therefore too strong to be tested -- then there is national purpose in our rebuilding our defense-oriented manufacturing.

The war in Ukraine showed us that we have lost our ability to fight a protracted ground war. 

Our aid to Ukraine is self-defense. It goes beyond raising the cost to Russia for invading a neighbor, although it is surely that. It is also a matter of America rebuilding its onshore capacity to provision our military.

War may be good for nothing. But it is worse to fight one and lose because China won't sell us the drone parts we need.

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Supreme Court comment

     "President Trump is still liable for everything he did while he was in office. We have a criminal justice system in this country. . . and former presidents are not immune."
          Senator Mitch McConnell, on the Senate floor, explaining that even though he didn't vote to convict Trump after his impeachment, that the law would judge him.  

Yeah, well, maybe presidents are immune after all.

The Supreme Court heard the Trump lawyers argue that U.S. presidents are immune from prosecution for official acts. And nearly everything the president does is an "official act," they argued. That includes encouraging states to send fake elector ballots and organizing a coup d' état to attempt to stay in office. 

We know something now we didn't know four years ago. We now know that the way to stop a political crime (like an attempted coup d' état) is by a political process -- impeachment -- not the legal process.  The legal process doesn't work for political crimes. And if a president has the support of over one third of the U.S. Senate, then the president can do anything he wants. That includes shooting someone on Fifth Avenue or having Seal Team Six kill his political opponent. The president could say he was doing that as part of his job. If the president openly took a million-dollar bribe in exchange for appointing someone an ambassador, that, too, would be done as part of an official act. Again, the remedy is impeachment, not prosecution.

And a senator in an impeachment trial, when looking for a "high crime and misdemeanor" to justify conviction, would observe that for a president essentially nothing is a crime. That means he is innocent of that high crime and misdemeanor, so he cannot be convicted. Catch 22.

I asked a close observer of the U.S. Supreme Court what he thought. Conde Cox is a commercial and business disputes lawyer. He has been a member of the bar of the U.S. Supreme Court for 29 years. That entitles him to the privilege of viewing Supreme Court hearings in person, including most recently the Colorado ballot-access case. He sent me this quick observation. He carries out his national bankruptcy practice from Ashland, Oregon.

Comment by Conde Cox

 I did not attend in person today in Washington, D.C. the Supreme Court's oral argument in the presidential immunity case. 

I did listen to the live audio. It is much more difficult to assess the posture of the Supreme Court by listening to oral argument by audio than it is to assess the likely outcome via in-person attendance at the oral argument. 

That said, my takeaway is that this case appears most definitely to involve a split decision. That is unlike my prior (correct) prediction of a nine-zero vote in the Colorado ballot disqualification case. I predict a six-three decision for a remand to the District Court to hold many, many hearings over what constitutes “official acts” that would  be subject to immunity from prosecution. I also predict that the majority of probably six -- or perhaps five, with Justice Coney Barrett bolting from the other conservatives --  will adopt and articulate a new “test” for what constitutes an “official presidential act.” Creating this test will require an overwhelming amount of pretrial litigation before the case against Trump can go to trial.  

The likely litigation over coming months and years will include a fight over whether an official act might include Trump’s aiding and abetting the January 6 insurrection. As a practical matter this will allow him to avoid all accountability for his attempt to prevent the Electoral College votes from being counted on January 6, 2021. The waters over presidential immunity will have been so muddied by this court that it will take forever to learn whether Trump can hide behind the cloak of “presidential official acts.” 

If the Court rules as I predict, delaying interminably a trial on election interference, in 50 years people will see this as the 21st Century’s equivalent to the 19th Century’s Dred Scott decision. That case ignominiously confirmed the right of a Southern slave owner to reclaim his “property” after the slave had escaped to a free state, and declared that Black people of whatever status were not U.S. citizens and had no right to access the federal courts. The Dred Scott decision has come to be viewed as flatly wrong, and a precipitating cause of Civil War. If Chief Justice Roberts goes with the other conservatives and if this is a 5-4 or 6-3 decision favoring Trump, then “The Roberts Court” will go down in history as one of the most out-of-step and hurtful Supreme Courts in our nation’s history.

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Arizona: Fake Documents, Fake Electors

"Thou shall not bear false witness."
     Exodus 20:19 and Deuteronomy 5:20

State governments are holding fake electors to account. 

A grand jury in Arizona joined Wisconsin, Michigan, Nevada, and Georgia in indicting the people who swore falsely that they were "duly elected and qualified Electors for President and Vice President of the United States from the State of Arizona." The indictment.

Arizona AG Kris Mayes

My lawyer-friends have given me casual advice over the decades: Never create a false document. This wasn't moral or spiritual advice. It was legal advice. The document is there, on paper, mute, permanent, and available for close examination. It is what it is. Don't sign something false. It will haunt you, they warned.

The 11 people who gathered in Phoenix were not "duly elected." The presidential votes had been counted. Arizona courts had reviewed multiple claims of fraud and error and found nothing of consequence. Arizona's Republican governor certified that Biden had won the popular vote and therefore the election.

A grand jury indicted them on four counts of conspiracy, fraud, and forgery. The indictment described a multi-state plan to allow Vice President Pence to consider two slates of supposedly equally valid ballots. He might discard both slates, and that would throw the election to the House of Representatives, where Trump would win.

The plan required Republican partisans in seven battleground states to sign a certificate of election asserting they were "duly elected." Electors in five of the seven states did so, Arizona's among them. Electors in two states, Pennsylvania and New Mexico, resisted and insisted on inserting language that said their election was contingent on courts, in fact, finding them to be duly elected. Electors in those two states are not in trouble. 

The fake-elector scheme hinged on the willingness of citizens to sign their names on a document asserting something untrue. Their being "duly elected" was an aspiration, something almost true. But it wasn't true.

There is a vibe in the current moment and zeitgeist that says that elections don't count. Someone painted that in front of the Jackson County elections office right after the 2020 election.

Trump asserts that cheating is the national norm, that elections past and in the future have been and will be rigged, so cheat first. Assert victory and stick to that. That norm is dangerous for a republic. A republic needs norms and expectations that rules and laws are enforced and that good people -- people worthy of public trust -- obey the law and would be ashamed to be caught in a lie.

I am happy that the people who signed their names to false election documents are in serious trouble. I expect it will deter to others. 

Heads up: 

This blog post is a prelude to what I expect will be subsequent posts on telling the truth in the Oregon Voters Pamphlet. It is morally wrong to mislead voters about one's qualifications for office. But there is one place where it is also illegal to do so, the top section of the Voters Pamphlet statement describing education and occupation. Here is the warning to candidates preparing their Oregon Voters Pamphlet candidate statement, page 10:

Would anyone be so foolish as to misstate one's job history in the face of that warning?

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