Oregon looks to end waiver trials

Kristin Medina’s drunken-driving trial was quick and efficient.

She did not object when the prosecutor asked a Seaside police officer to describe how she failed a field sobriety test. She did not challenge the results of a breath test that put her blood alcohol content at 0.23 percent, nearly three times the legal limit. She did not offer a single word in her defense.

Medina wasn’t even in court.

As a condition of release after her October 2012 arrest, Medina, who lived in Washington state, signed a waiver of appearance for trial. When she did not show up, the criminal justice system moved on without her.

“We’ll catch up with her at some point, I would assume,” Circuit Court Judge Cindee Matyas said after finding Medina guilty of misdemeanor drunken driving in January 2013.

With an overcrowded jail and a significant share of defendants who live outside the North Coast, Clatsop County has routinely required people accused of misdemeanors to waive their right to appear at trial as a condition of release.

But the state Legislature, concerned the waivers are too high a price to get out of jail, has overwhelmingly voted to ban the practice in Oregon.

“I think the most important thing the state does is the criminal justice system, because it’s where the full power of the state is on one person,” said Kirk Wintermute, a criminal defense attorney in Astoria who urged the Legislature to change the law. “And if that person is not there to answer that, and they’re not there to question their accusers, I think that’s pretty significant.”

District Attorney Josh Marquis predicts the change will make it easier for defendants to wriggle out of convictions by never showing up for court and — if caught years later — claiming they were denied the right to a speedy trial.

Judge Paula Brownhill, the presiding judge of the Circuit Court, cautions that the potential impact may be overstated. In 2017, defendants in Clatsop County signed waivers in 372 misdemeanor cases, but only 11 led to trials where the defendant was not in court.

“We have a lot of defendants sign waivers of appearance as a condition of release, but we don’t try very many of them,” the judge said.

Clatsop County used the waivers for years as a hook to persuade misdemeanor defendants to honor their court dates.

The 60-bed jail in Astoria is chronically overcrowded, with as many as 70 percent of inmates awaiting trial. People accused of misdemeanors are often released when the jail approaches capacity.

The waivers were a reflection of jail overcrowding and the high percentage of defendants who live outside the county. The Daily Astorian found that roughly 40 percent of drunken-driving cases, for example, involve visitors to the coast.

Up until about a year ago, the court would enforce waivers signed by defendants — like Medina, the Washington state woman — who were in custody after an arrest but not yet arraigned on charges, a process some found troubling. Someone arrested after a night of drinking or a fight with a loved one and eager to get out of jail may not realize the risks of waiving their right to appear at trial.

Waivers signed by defendants after arraignment in court, by contrast, came with explicit warnings from judges about the possible consequences. The waiver form — in bold, capital letters — stated: “I authorize the court to go ahead without me and to have the trial on the original date or on any other date.”

Defendants were advised that if they signed the waiver and did not show up for trial, they gave up the right to be represented by an attorney, to challenge evidence, to question witnesses and to mount a defense.

Even though judges explained the gravity, Wintermute doubts defendants — some who appear at arraignment from a video link from jail — fully understood. The choice was especially cloudy for people with drug or alcohol problems, mental health issues, or precarious job or housing situations.

“I wonder how much it gets through to some people when they’re sitting there, on a camera, and they just want to get the hell out of jail,” he said.

For prosecutors, the waivers provided some assurance that misdemeanor cases would inch toward conclusion even if defendants repeatedly missed court dates.

“The question is, do they knowingly, voluntarily and freely weigh in their minds — with legal representation, although it’s not absolutely necessary — that getting out of jail without paying a dime is worth it?” Marquis said.

Defendants who waived their right to appear at trial were almost always convicted if their cases reached the courtroom in their absence, since prosecutors had the luxury of arguing against an empty chair.

The Circuit Court used the waivers to help close misdemeanor cases rather than keeping them open indefinitely. On reflection, Judge Brownhill said it looks as if the waivers did not achieve that goal. Of the 11 waiver trials last year, the judge said, seven are still on warrant status.

Judges do not sentence defendants convicted in absentia, so, until they are arrested again or turn themselves in, the convictions stay in the background, like a shadow.

Five years after Medina, the Washington state woman, was found guilty after she didn’t show up for her drunken-driving trial, she still has not been sentenced.

The Oregon Court of Appeals ruled in 2006 that Clatsop County’s use of the waivers was legal. The opinion — in State of Oregon v. Skillstad, written by Ellen Rosenblum, now the state’s attorney general — hinged on whether the waiver in a criminal mischief trial was valid and voluntary.

The state Legislature took up the issue this year as part of a wider discussion on plea bargains.

State House Majority Leader Jennifer Williamson, D-Portland, said she heard about the waivers in Clatsop County after one of the misdemeanor convictions bubbled up on appeal.

Williamson, an attorney, called the practice “outrageous,” since courts can issue warrants when defendants fail to appear for trial.

“This idea of trial in absentia is just so un-American,” she said. “I think people would be hard-pressed to believe that we try people without them being there and without their lawyers being there.”

House Bill 4149, which Williamson sponsored, would ban the waivers. The bill would also bar prosecutors from requiring defendants to agree that a law is unconstitutional as a condition of a plea offer.

The state House voted 56-0 in favor of the bill in February. The Senate voted 27-1 earlier this month, with state Sen. Betsy Johnson, D-Scappoose, the only “no” vote.

Johnson spoke with Marquis about the potential downside for Clatsop County. “This bill, the way that it’s written, would give criminal defendants — including those accused of domestic violence — an easy way to avoid consequences,” the senator said.

Marquis, in anticipation of Gov. Kate Brown allowing HB 4149 to become law, informed judges last week that prosecutors will no longer do waiver trials.

“My lawyers will be asking for warrants if a defendant fails to appear and we will urge the jail to seriously consider whether to release people who have shown over and over again their refusal to follow court orders to appear,” the district attorney wrote in an email.

Wintermute said defendants often have to choose between a bad outcome and a worse one, and should not be coerced into giving up important rights so the courts might function more efficiently.

“It’s the wrong thing to do, is what it comes down to,” the defense attorney said.

More online: Read House Bill 4149 at bit.ly/2FO0Fl5

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