State ex rel. O'Leary v. Lowe

• Decision Date: 16 February 1989
• Citation: 307 Or. 395,769 P.2d 188
• Parties: STATE of Oregon ex rel. James W. O'LEARY, District Attorney for Clackamas County, Plaintiff-Relator, v. John K. LOWE, Judge of the Circuit Court of the State of Oregon for Clackamas County, Defendant. SC S35838.
• Court: Oregon Supreme Court

Page 188

769 P.2d 188

307 Or. 395

STATE of Oregon ex rel. James W. O'LEARY, District Attorney for Clackamas County, Plaintiff-Relator, v. John K. LOWE, Judge of the Circuit Court of the State of Oregon for Clackamas County, Defendant.

SC S35838.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Jan. 17, 1989.

Decided Feb. 16, 1989.

Virginia L. Linder, Sol. Gen., Salem, argued the cause on behalf of plaintiff-relator. With her on the petition for Alternative Writ of Mandamus were Dave Frohnmayer, Atty. Gen., Thomas H. Denney, Robert M. Atkinson, Janet A. Klapstein, and Christine Chute, Asst. Attys. Gen., Salem.

William T. Lyons, Oregon City, argued the cause and filed the response on behalf of the defendant.

FADELEY, Justice.

This is an original mandamus proceeding. Relator O'Leary is the District Attorney of Clackamas County responsible for prosecuting four cases of manslaughter in the first degree in which it is alleged that the four criminal defendants, acting together, beat a child to death. ¹ Defendant judge ² is the Clackamas County Circuit Court judge before whom the criminal trials are pending. The dispute in this case centers on defendant judge's order directing relator to make available for interview by counsel for the criminal defendants a total of 53 children, all of whom are presently in the custody of the State of Oregon Children's Services Division (CSD) and some or all of whom may have been eyewitnesses to the child's death. We conclude that the defendant judge exceeded his authority in issuing the order and accordingly issue a peremptory writ directing that the order be withdrawn. ³

I.

The child died on October 14, 1988. Officers investigating her death found a number of other children at the same house in which the victim apparently had suffered her fatal injuries. The children were taken into protective custody. On October 17--the next judicial day--a petition was filed in the Clackamas County Juvenile Court alleging that the children's welfare was endangered because they were being inadequately housed and because they had been subjected to systematic beatings that other children had been forced to watch. Circuit Court Judge Gilroy, sitting as the juvenile court judge, placed the children in shelter care in the temporary custody of CSD and found that there was probable cause to believe that the children were within the court's jurisdiction because their condition and circumstances endangered their welfare.

On October 20, the criminal defendants were indicted by the Clackamas County Grand Jury. Three of the children were listed as witnesses before the Grand Jury. Sometime thereafter during the discovery process, and after ten of the children were disclosed as potential prosecution witnesses, difficulties arose when counsel for the criminal defendants, armed with a claim of consent of the childrens' parents, sought to interview the 53 children but were denied the opportunity to do so by CSD. On December 2, the criminal defendants moved for the imposition of sanctions under the Oregon criminal discovery statutes, ORS 135.805 to 135.873, and under Article I, section 11, of the Oregon Constitution and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution on the ground that "the State" was denying them access to the 53 children who were in the custody of CSD and who were material witnesses in the criminal case. They stated that they were being deprived of the "perceptions, observations and statements" of these "eyewitness" children which prevented adequate trial preparation.

On December 7, the defendant judge held a hearing on the motion for sanctions. After hearing the evidence, he stated:

"[A] fair reading of the discovery rights provided by Oregon Statute and the constitutional rights of the defendants to prepare a defense and to a fair trial and to the effective assistance of Counsel require that they be allowed to try to talk to witnesses without interference from the state.

"In this case, there is no indication that anyone other than the Children's Services Division is preventing the defense from interviewing these children. From the evidence I have heard here, it appears the State has had nearly unlimited access with the consent and assistance of the Children's Services Division to 53 potential eyewitnesses of this alleged crime, and as a result of those discussions and interviews have been able to pick and choose those which they wish to call at the trial in this matter.

"The Court believes it would be extraordinarily unjust not to allow the defense at least some opportunity to talk to those who are willing to talk to them in order that they might also pick and choose those they wish to call. It appears from the Indictments in this case that we have four defendants who are charged with this offense. It would seem logical therefrom that who did what to who and when is going to be very critical in the trial of this case." (Emphasis supplied.)

On December 15, after making these observations, the defendant judge entered an order providing, in pertinent part:

"[T]he attorneys who are currently representing the 53 children who are in Children's Services Division custody and are potential witnesses in this case, will be appointed to represent the children for the following proceeding: the State of Oregon, through its prosecuting attorney, will produce each child separately for an interview at a location the state determines would be the least upsetting to the children. A single representative of Children's Services Division may be present as well as a single representative of the District Attorney's Office. All four defense attorneys may be present as well as a single investigator for the defense. The attorney for the child should also be present and no other person shall be present. Prior to the interview, the attorney for the child shall explain to the child the rights that the child has not to be interviewed. If the child expresses a desire not to talk at this interview, no interview will take place of that child. If at any time during the interview the child chooses not to continue talking about the subject, that right and decision will be honored and the interview will be terminated. Should Children's Services Division choose not to cooperate, the sanctions imposed by this court would be against the prosecutor and the State of Oregon in its role as prosecutor of this case."

Things did not go as the defendant judge hoped they would. On December 28, the criminal defendants filed an "Ex Parte Motion for Order to Show Cause--Contempt and for Imposition of Sanctions." The supporting affidavit of one of the criminal defendants' attorneys recited that CSD's representative refused to set up the interviews contemplated by the defendant judge's order without a specific request to do so from the relator or his deputy, and that relator's deputy told counsel that relator had asked the Attorney General to consider filing a mandamus action against defendant judge but that no such action had been filed. A different judge signed an order directed to relator and one of his deputies which ordered them to appear in court on January 3, 1989,

"to show cause, if any, why you and each of you should not be held in contempt of Court for not complying with the [provisions of the defendant judge's Order relating to arranging interviews of the 53 children] * * * and further why sanctions should not be imposed for your failure to comply with said Order."

Relator then brought the present mandamus proceeding in this Court. We stayed the show cause hearing and issued an alternative writ that alleged, in pertinent part:

"VIII

" * * * * *

"Defendant judge's order is erroneous as a matter of law, because the circuit court has no authority to order plaintiff-relator or the Children's Services Division to produce potential state's witnesses for pretrial interview by the defense.

"IX

"If allowed to stand, defendant judge's order will expose potential witnesses in the cases of State v. Chambers, State v. Jackson, State v. Doolittle, and State v. Brinson to pretrial proceedings which their legal custodian, the Children's Services Division, has determined to be contrary to their best interests.

"X

"If allowed to stand, defendant judge's order will expose plaintiff-relator to the risks of being held in contempt and incurring other sanctions for failing to do something he has no power to do, to-wit: order the Children's Services Division to produce the children for interview."

The judge answered denying these three paragraphs.

II

Both parties rely on the Oregon discovery statutes, ORS 135.805 to 135.873. Specifically, they rely on ORS 135.815, which provides, in pertinent part:

"[T]he district attorney shall disclose to the defendant the following material and information within the possession or control of the district attorney:

"(1) The names and addresses of persons whom the district attorney intends to call as witnesses at any state of the trial, together with their relevant written or recorded statements or memoranda of any oral statements of such persons."

No one contends that the relator has failed to provide the names and addresses of the witnesses whom he intends to call as witnesses. The criminal defendants' problem is that, if they go to the addresses supplied to interview the ten witnesses named, CSD will refuse to let them talk to the witnesses. In addition, they seek interviews of the remaining eyewitnesses.

Pretrial interviews of potential witnesses by defense counsel are an appropriate and important part of preparing for trial. This court said as much in State v. York, 291 Or. 535, 632 P.2d 1261 (1981). In that case, a prosecutor had advised witnesses that "it would be better if they didn't say anything" to representatives of the criminal defendant. Although no specific prohibition of such conduct was set forth in the discovery statutes, this court held...