4/11/2016 4:18:10 PM 15CR46257

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

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FOR MULTNOMAH COUNTY

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THE STATE OF OREGON,

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CourtNbr

15-CR-46257

Plaintiff,

v. HOMER LEE JACKSON, Defendant.

STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS THE INDICTMENT DUE TO FALSE EVIDENCE PRESENTED AT GRAND JURy

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INTRODUCTION

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COMES NOW Rod D. Underhill, by and through Kirsten Snowden, Deputy District 11

Attorney, and respectfully submits the following Response to Defendant's Motion to Dismiss the 12

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Indictment Due to False Evidence Presented at Grand Jury. This Response is based on the following Points and Authorities, and upon all the files, records and proceedings herein.

15 I. NO LEGAL BASIS FOR DEFENDANT'S MOTION

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The State disputes Defendant's version of facts as contained in his motion to dismiss.

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However, Defendant's assertion that the detective's testimony before the grand jury was false

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would not provide any basis, as a matter of law, to dismiss the indictment, even if that accusation

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were true. Defendant cites no controlling authority for this proposition.

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Defendant fails to explain how the admission of allegedly perjured testimony, in and of

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itself, would constitute a due process violation. As the term suggests, "due process" protects a

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defendant's procedural rights at trial. See Mathews v. Eldridge, 424 US 319, 333, 96 S Ct 893, 47 L Ed 2d 18 (1976) ("The fundamental requirement of due process is the opportunity to be

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heard 'at a meaningful time and in a meaningful manner."'). In the context of criminal 1 - STATE'S RESPONSE TO STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS THE INDICTMENT DUE TO FALSE EVIDENCE PRESENTED AT GRAND JURy

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proceedings, due process generally requires, among other things, timely notice ofthe pending

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charges; the opportunity to confront accusers and present evidence before an impartial jury; the

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presumption of innocence under which guilt must guilt must be proven by legally obtained

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evidence; and the assistance of counsel at critical stages ofthe criminal process. See, e.g., State

v. Johnson, 221 Or App 394, rev den, 345 Or 418 (2008) (contrasting due process protections

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required at revocation hearing with those required at criminal trial). 7

Defendant relies heavily on United States v. Basurto, 497 F.2nd 781 (9th Cir. 1974). Not 8

only is Basurto not controlling, the facts of that case are distinguishable. In that case, it was 9 10 11

undisputed that 1) a co-conspirator had perjured himself during grand jury testimony, 2) the subject matter of that perjured testimony was material to the crimes charged, and 3) that the

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prosecutor was aware that the witness had perjured himself and failed to disclose that

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information to the court or the grand jury. As quoted in Defendant's motion to dismiss, the

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Basurto court held: "[T]he Due Process' Clause of the Fifth Amendment is violated when a

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defendant has to stand trial on an indictment the government knows is based partially on perjured

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testimony, when the perjured testimony is material, and when jeopardy has not attached." Id. at 785.

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Unlike the defendant in Basurto, Defendant fails to make even aprimaJacie showing that 19

any misstatement was made to the grand jury, let alone that the grand jury received and

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"[W]hen a duly constituted grand jury returns an indictment valid on its face, no independent inquiry may be made to determine the kind of evidence considered by the grand jury in making its decision. Costello v. United States, 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406 (1956). To do so would further invade the independence of the grand jury. The holding reached by this court does not affect that established rule." Id. (emphasis added).

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2 - STATE'S RESPONSE TO STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS THE INDICTMENT DUE TO FALSE EVIDENCE PRESENTED AT GRAND JURy

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Therefore, even if this Court were to apply the reasoning in Basurto, the Court is without

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authority to disturb the facially valid indictment in this case. The 9th Circuit has repeatedly made

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this point:

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"The grand jury does not sit to determine the truth of the charges brought against a defendant, but only to determine whether there is probable cause to believe them true, so as to require him to stand trial. Because of this limited function, we have held that an indictment is not invalidated by the grand jury's consideration of hearsay, Costello v. United States, 350 U.S. 359 (1956), or by the introduction of evidence obtained in violation ofthe Fourth Amendment, United States v. Calandra, 414 U.S. 338 (1974). While the presentation of inadmissible evidence at trial may pose a substantial threat to the integrity of that factfinding process, its introduction before the grand jury poses no such threat. I have no reason to believe this Court will not continue to abide by the language of Mr. Justice Black in Costello, supra, at 363: "An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The [Due Process Clause of the] Fifth Amendment requires nothing more." Bracy v. United States, 435 U.S. 1301, 1302-03 (9th Cir. 1978).

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Defendant's reliance on the Basurto decision is misplaced. It should be mentioned that other

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federal circuits have declined to adopt the reasoning of Basurto. The 5th Circuit noted:

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"A subsequent Ninth Circuit opinion, us. V. Bracy, 566 F.2nd 649 (CA9, 1977), Cert. denied, 439 U.S. 818 (1978), has not only cut back on the reach of Basurto but has also questioned its continuing validity. This court has never decided whether to adopt the constitutional rule laid down in Basurto or the modified rule of Bracy. Nor do we decide that issue today. A prerequisite to the applicability of the Basurto rule is a finding that the government witness perjured himself. In the case before us the district court, doubtful whether there were any misstatements, concluded that, if there were, there was no evidence that Derry "deliberately attempted to mislead, certainly no evidence of perjury, " a fmding that can be reversed only if clearly erroneous .... Absent a fmding that perjury was committed, there is no basis for dismissing the indictment." United States v. Cathey, 591 F.2d 268,271-72 (5 th Cir. 1979) (internal citations omitted).

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While the State contends that Defendant's claims are unfounded, it is also important to note that generally there is no legally prescribed remedy in Oregon for the improper submission

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of evidence before a grand jury. As discussed below, Defendant cites no authority ofthe Court

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to quash or dismiss an indictment if it is otherwise compliant with ORS 135.510. Nor does

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Defendant state any legal authority for the court to review the "sufficiency ofthe evidence"

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presented to the grand jury. In essence, Defendant seeks to have the Court look behind the

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indictment to make a determination ofthe sufficiency ofthe evidence pre-trial. Such an inquiry

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is improper and only proper by motion for judgment of acquittal. Generally, the grand jury may receive as evidence any testimony, reports, forensics, lab

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reports, and physical evidence that might be admitted as evidence at trial of the accused. ORS 7

132.320. This also encompasses consideration of evidence of crimes that the grand jury may not 8

ultimately find sufficiently supported for indictment. 9

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In State v. McDonald, 231 Or 24, 34 (1961), the Oregon Supreme Court stated, "It should be remembered that a grand jury is an investigating and accusatory body consisting, not of

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lawyers and jurists, but of laymen who have no power to determine the guilt of an accused, and

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we cannot, therefore, believe it was the intention of the legislature to require that the grand jury

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should hear only such testimony as would be competent in a court of law." The trial court has no

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authority to inquire into the competency of the evidence considered by the grand jury in

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returning an indictment. The McDonald court held:

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"There can be no question that when an accusatory indictment is returned there is a presumption that the grand jury has acted in accordance with the admonition of [ORS 132.390] and ORS 132.320. Since, as was previously pointed out, this presumption is only overcome when there is a total failure to endorse the names of any witnesses upon the returned indictment, it must follow, under the well-settled rule in the majority of jurisdictions, including the state of Oregon, that the fact a grand jury may have been prejudiced by hearsay evidence or prejudicial publicity which it ought not to consider is not grounds for dismissing or quashing an indictment, for the trial court would then be required to inquire into and determine in advance of each trial the sufficiency of all of the evidence to sustain or reject an indictment, which it may not do." (internal citations omitted) (emphasis added) Id. at 35.

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ORS 132.320(9) states "the grand jury is not bound to hear evidence for the defendant,

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but it shall weigh all the evidence submitted to it; and when it believes that other evidence within

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its reach will explain away the charge; it should order such evidence to be produced." A grand

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jury may indict a person for a crime when it believes the person guilty thereof. ORS 132.380. Pursuant to ORS 135.510, an indictment may only be set aside if it is 1) not properly found,

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indorsed, or presented, or 2) the names of the witnesses are not inserted at the bottom of the 7

indictment. As defendant has alleged neither of these as reasons to set aside the indictment, there 8

is no statutory basis for dismissal. 9

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Oregon courts have specifically ruled that dismissal of an indictment when inadmissible

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evidence has been submitted to a grand jury is improper. In State v. Stout, 305 Or 34 (1988), the

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defendant moved to dismiss the indictment because the witnesses before the grand jury had no

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personal knowledge of the crime and their testimony recited inadmissible hearsay. The court held

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that the indictment could not be dismissed on that basis. Similarly, the Oregon Court of Appeals stated "it would not go behind an indictment to determine its validity... any challenge would be

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limited by ORS 135.510 and that statute did not include a remedy of dismissal because the grand 17

jury considered inadmissible hearsay." State v. Gonzales, 120 Or App 249 (1993), State v. Dike, 18 19 20

91 Or App 542, 545 (1988) citing McDonald, supra, and Stout, supra (finding despite the language in ORS 132.230 an indictment can only be set aside for the grounds stated in ORS

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135.510 and therefore an indictment cannot be set aside because the grand jury considered

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evidence that might not be admissible at trial).

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Defendant cites no authority whatsoever for his proposition that he is entitled to "super

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due process" under the Eighth Amendment or that the Court's analysis should be any different.

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This argument should be disregarded in its entirety. Again, even assuming the Court should

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5 - STATE'S RESPONSE TO STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS THE INDICTMENT DUE TO FALSE EVIDENCE PRESENTED AT GRAND JURy

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apply a "super due process" standard, the analysis remains the same and Defendant has failed to

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make any factual showing of an irregularity at the grand jury proceeding.

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Lastly,ORS 135.520 specifically states a motion to set aside an indictment or dismiss must be made within 10 days of arraignment, unless for good cause shown. Defendant's motion is untimely and without good cause; therefore, it should be denied on timeliness grounds alone.

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II. NO FACTUAL BASIS FOR DEFENDANT'S MOTION Defendant's motion to dismiss the indictment stems from an illogical chain of false assumptions, specifically: 1) that Detective Lawrence made a misrepresentation in his written

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report when he wrote that, "Homer went on to make admissions to his participation in the deaths 11

of Latanga Watts, Tonja Harry, and Essie Jackson;" 2) that he must have testified under oath to 12

that same statement in front of the grand jury; 3) that not only was this presumed testimony a lie, 13 14 15

but that Detective Lawrence knew it to be a lie when he testified to it; 4) that the grand jury heard this perjured testimony and that such perjured testimony was material to the grand jury's

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decision to return an indictment charging the defendant with 13 counts of aggravated murder;

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and 5) that the prosecutor knew or knows of such material perjured testimony.

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Defendant has failed to demonstrate that the grand jury heard any false or perjured testimony. Because this is Defendant's motion, he has the burden of making a factual showing that there was some irregularity in the grand jury proceedings. He needs to make that showing without intruding into the grand jury proceedings. In other words, he would need to present a prima facie showing of the irregularity-i.e., that the detective lied-before the Court could ever

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even entertain defendant's motion to dismiss. 24 25

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6 - STATE'S RESPONSE TO STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS THE INDICTMENT DUE TO FALSE EVIDENCE PRESENTED AT GRAND JURy

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This burden is necessary to satisfy Oregon's policy of preserving the secrecy of grand

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jury proceedings. Historically, both the Oregon Supreme Court and U.S. Supreme Court have

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recognized the "long established policy that maintains the secrecy of the grand jury

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proceedings." State ex reI Johnson v. Roth, 276 Or 883,885 (1976), citing United States v. Procter & Gamble, 356 US 677, 681 (1958). In Oregon, the secrecy rule to the grand jury

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proceedings is codified in ORS 135.310 and ORS 135.855. ORS 135.310 states: "the grand jury 7

shall retire into a private room and may inquire into crimes committed or trial be in the county." 8

Subsection (1)(c) ofORS 135.855 states: 9

"1) The following material and information shall not be subject to discovery under ORS 135.805 to 135.873: *** (c) Transcripts, recordings or memoranda of testimony of witnesses before the grand jury, except transcripts or recordings of statements made by the defendant."

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The legislature in 1973 expressly rejected "a proposal to broaden the opportunities for the

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discovery anq disclosure of grand jury testimony and chose to protect 'the present secrecy of

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grand jury proceedings, as prescribed in ORS 132.220.'" State ex reI Smith v. Murchison, 286 Or 469,473 (1979). In State v. MacBale, 353 Or 789, 803-04, (2013), the Oregon Supreme Court said: "Grand jury proceedings also traditionally have been secret. State ex reI Johnson v. Roth, 276 Or 883,885,557 P2d 230 (1976) (secrecy of grand jury maintained by 'long established policy'); State v. Moran, 15 Or 262,273, 14 P 419 (1887) (,The policy ofthe law generally is that the proceedings before the grand jury are secret. '). In State v. Conger, 319 Or 484,878 P2d 1089 (1994), this court discussed the historical circumstances leading to the provision for grand juries in the Oregon Constitution. It noted that, during the framers' debate about whether to retain the grand jury system, '[b]enefits and drawbacks to the secrecy of grand juries were discussed as welL' ld. at 495."

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Simply stated, the Court may not look behind the indictment to examine the testimony given to 24 25

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the grand jury and the Defendant has failed to make any showing that Detective Lawrence lied 7 - STATE'S RESPONSE TO STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS THE INDICTMENT DUE TO FALSE EVIDENCE PRESENTED AT GRAND JURy

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under oath. Defendant also fails to establish that the prosecutor knows about such alleged

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perjury. To be clear, the State denies that the grand jury heard any perjured testimony. See

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attached State's affidavit. As such, the Court has no authority to dismiss the grandjury

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indictment.

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III. CONCLUSION

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Based on the foregoing, the State respectfully requests that the Court deny Defendant's

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Motion to Dismiss the Indictment Due to False Evidence Presented at Grand Jury.

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Respectfully submitted this 11th day of April, 2016.

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Rod D. Underhill, District Attorney 12 13 14 15

BY:~~~~

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Kirsten Snowden, OSB No. 98104 Chief Deputy District Attorney

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8 - STATE'S RESPONSE TO STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS THE INDICTMENT DUE TO FALSE EVIDENCE PRESENTED AT GRAND JURy

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Certificate of Service / True CoPY

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I, Kirsten Snowden, hereby certify that I served a true copy of the STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS THE INDICTMENT DUE TO FALSE EVIDENCE PRESENTED AT GRAND JURY, in State v. Homer Jackson.. on counsel for the defendant; to wit:

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Circuit Court Clerk 106 Multnomah County Courthouse 1021 SW Fourth Avenue Portland, Oregon 97204 Mr. Conor Huseby & Mr. Robert Axford Metropolitan Public Defenders [email protected] [email protected]

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Courtesy copy (hard copy) to the Court Trial Judge: Michael Greenlick Multnomah County Courthouse 1021 SWFourthAvenue Portland, Oregon 97204

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by delivering via email to their offices on April 11, 2016. 13 14 15

~~~

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Kirsten Snowden, OSB 981040 Chief Deputy District Attorney

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Dated this 11 th day of April, 2016

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IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR MULTNOMAH COUNTY

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THE STATE OF OREGON,

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Court Nbr

15-CR-46257

Plaintiff, v.

HOMER LEE JACKSON,

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Defendant.

AFFIDAVIT IN SUPPORT OF STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS THE INDICTMENT DUE TO FALSE EVIDENCE PRESENTED AT GRAND JURY

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I, Kirsten Snowden, swear that I am a Deputy District Attorney for Multnomah County

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and that I attended the grand jury proceedings in the above-entitled case. I further swear that I

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was present for the grand jury testimony of Portland Police Bureau Detective James Lawrence

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and that I am not aware of any misstatements made by him to the grand jury nor am I aware of

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any perjured testimony to the grand jury.

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Being duly sworn on oath, I do hereby affirm:

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Dated this 11 til day of April, 2016

18 Oi=r::ICIi'lL SEAL

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M!r;I-lElLE WI

Kirsten Snowden, OSB No. 98104 Chief Deputy District Attorney

CARS~!\='R

NOTARV PI18UC - OREGON

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COMI\I11SSl0N NO. 48076(3 MY COMMISSION EXPIRES SEPTEMBER 2}, 2017

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SUBSCRIBED AND SWORN TO BEFORE ME ON THE ABOVE DATE:

NOTARY PuBLk FOR OREGON MY COMMISSION EXPIRES: