LINCOLN COUNTY — If a new policy is strictly enforced, as the district attorney has promised, defendants taking plea agreements any time up to their trial date will mostly be a thing of the past in Lincoln County.
A Dec. 21 letter from then District Attorney-elect Lanee Danforth informed members of the local bar association that, effective upon her taking office Jan. 4, plea offers will be revoked immediately when cases are scheduled for trial, and no more plea negotiations will be held. Pending cases are affected by the new policy — defense attorneys in matters already scheduled for trial will be emailed plea offers with firm deadlines for acceptance. Exceptions for compelling or unforeseen circumstances can be approved by Danforth or her chief deputy but “will be a rare occurrence,” her letter said.
Danforth told the News-Times via email, “Prior to the plea offer policy, cases were frequently scheduled for trial simply because attorneys on both sides were unprepared at the time the status conference took place.” That practice unduly burdens the court docket and the public, Danforth said.
“When a case is scheduled for trial, a lot of time and resources are expended,” she said. A date must be allotted on the court’s calendar, witnesses must be subpoenaed, and eventually jurors must be summoned. “Scheduling cases for trial only to plead guilty late in the game costs taxpayers lots of money that didn’t need to be spent and inconveniences members of the public, including witnesses, victims and jurors,” the district attorney said.
The policy generally gives defendants a month or less from the time of their arraignment to the date of the early resolution conference, when pleas are typically entered and, in not guilty pleas, trials are ordered. In her Dec. 21 letter, Danforth said a “discovery team” was created in her office to obtain evidence from law enforcement and send it to the defense, with a goal that discovery will be complete prior to the early resolution conference. She said she hopes defense attorneys and prosecutors will discuss cases and reach a resolution prior to that hearing so that it can be canceled, and a trial date or guilty plea entry can be scheduled.
Danforth also hopes the policy will reduce the number of cases that go to trial and allow both sides to better prepare for those that are ultimately tried. “If we have 10 cases scheduled for trial in a given week, we don’t have the time or resources to prepare for all of them,” she said. “That is not fair or just for crime victims or defendants.”
Many local defense attorneys have objected to the new policy, as Danforth acknowledged. She told the News-Times, “I believe the primary reason for this is because it means defense attorneys have to be diligent in meeting with clients and thoroughly reviewing cases, rather than waiting and putting things off until later down the road.”
Attorney Guy Greco was a public defender in Lincoln County for 43 years. He stopped practicing last July but still manages Oregon Coast Defenders, a consortium of private attorneys that contracts with the state to provide indigent defense in Lincoln County Circuit Court. He says the defense attorneys he’s spoken with about the new policy “unanimously believe it will be a disaster.”
“There are institutional issues that prevent the policy from working,” Greco said. “And what it’s doing is saying, ‘We’re going to punish you if you invoke your constitutional right to try your case.’”
Rachel Marshall has practiced criminal defense law in Lincoln County for 13 years and said she’s one of the few local defense attorneys who does not handle indigent defendants.
“The state thinks that conducting a defense investigation, getting lab results and going over body cams, dash cams and police reports, engaging in plea negotiations, figuring out the restitution amount, and having your client agree to that can all happen between arraignment and the next court date, which is almost always only three weeks away from arraignment, occasionally four weeks,” Marshall told the News-Times in an email. “Sometimes that can happen — a lot of times it does not.”
Marshall also believes the policy will result in more cases being set for trial, contrary to its stated intention. “I believe the policy is designed to have more people take plea deals rather than take their case to trial and to not have them file motions contesting unconstitutional searches or seizures, or file motions to exclude evidence before trial,” she said. “Oftentimes, obtaining favorable evidentiary rulings or winning a motion to suppress evidence can result in the DA dismissing the case entirely.”
Danforth told the News-Times the policy gives attorneys ample time to meet with clients and make a decision — she said four to five weeks — and that they can request more time if needed without objection from the prosecution.
“There is no time limitation as far as the DA’s office is concerned,” Danforth said. “The state’s plea offer does not expire at the status conference, the offer expires when the defense attorney requests a trial. That is an important distinction. If a defense attorney needs more time, they can ask for it.”
Greco thinks that’s unrealistic. “Under current court procedure, the court is going to set a trial at some point, usually within six weeks after arraignment, regardless of whether the defense requests one. At least when I was still practicing, Judge Branford would set a trial if the client hasn’t spoken to defense counsel by the time of the first status conference. The courts do not give us an unlimited window to request more time.”
There’s also likely to be more information available after the trial date is set, Greco said, such as independent lab reports, and he said attorneys don’t receive witness lists until after that time. “An important point to make is that the district attorney does not even give full discovery pursuant to statute until after the trial is set,” he said. “We have little or no idea whether its witnesses have serious credibility issues, and there has been no notice to the defense that either the district attorney or the courts are going to change this process.”
Rather than defense attorneys putting cases off, Greco said, it’s often prosecutors eager to make a deal as the trial looms. “Deputy district attorneys don’t know anything about the case at the arraignment, all they have is a police report. The police report isn’t always accurate. The people that the police are talking to are not always telling the truth,” he said. “Every defense lawyer that has commented to me about this policy has told me this — that many cases settle on the eve of trial because the deputy district attorney hasn’t interviewed their witnesses until a week before and figured out that what was in the police report wasn’t what their case was.”
Greco also believes more attorneys will recommend their clients take cases to trial, and the policy will end up putting more of a burden on prosecutors. They already have a heavier case load than the public defenders, he said, who he estimates carry anywhere from 125 to 200 indigent cases, and might also have retained clients.
About 96 percent of cases are resolved without trial, which includes guilty pleas, cases that are ultimately dismissed by the DA, and diversion programs that result in non-prosecution.
Greco said at least one prior district attorney had mandated a similar policy, which was found to be impracticable and eventually went unenforced.
Danforth said she intends to enforce the policy strictly. “I believe over time, it will result in a positive change for people on both sides of the aisle.”