Judge David Orr responds

I read the news today, oh boy
About a lucky man who made the grade
And though the news was rather sad
Well, I just had to laugh."

       John Lennon and Paul McCartney, 1967

Some politics is local.

With all the news about the Trump trial, Ukraine aid, Israel, the Florida six-week abortion ban, and Grants Pass at the Supreme Court, why am I boring readers with talk about Jackson County judges?

I am trying to fill a news hole.

I will get back to national issues soon, although I don't see much to laugh about.

I am not an attorney and I have never met Judge David Orr. Local attorneys I respect tell me Orr is an adequate judge -- not good, not a disaster. They tell me he is slow and unpredictable, which isn't good in a judge. I have no independent judgment. His former colleague on the bench, Joe Charter, and the current district attorney, Beth Heckert, are on record recommending he be replaced. Johan Pietila, a senior assistant in the County Counsel's office, is his opponent. I have never met Pietila either.

David Orr

Johan Pietila

The whole process seems to me like a poor way to choose our judges, but that is the Oregon system. I look for recommendations from people who seem to have first-hand information.

Four years ago Orr ran for judge with a partisan "whisper campaign," running as a wink-wink Republican, with his name listed in GOP voters guides. Now I notice few signs with Orr's name anywhere, and multiple signs for Pietila. I don't see Orr signs clustered among Republican candidates this time around. Maybe Republicans came to the same conclusion as a majority of attorneys who supported Pietila instead of Orr in the bar poll. Or maybe Orr decided that now that he is the incumbent he would switch messages and strategy and emphasize that he is not a secret partisan. Orr's new slogan is "Justice Without Politics," and his voters pamphlet says he does not accept campaign contributions. 

I expect to vote for Pietila, based on the faint-praise word-of-mouth comments I hear about Orr. But since I published District Attorney Beth Heckert's comments -- with more to come from her in a future blog post-- out of a sense of fairness I will publish Orr's response to Heckert. 

Orr issued his own media release yesterday. He did not send it to me, but he did send it to local TV station KOBI, which published it. Good for them. Locally-owned KOBI makes efforts that no other media outlet does. No other broadcaster or newspaper even mentioned Orr's response, much less published it.

Here is Orr's comment, as presented by KOBI.

1. Ms. Heckert did not attempt to appeal any of the rulings she complained of.

2. The district attorney enjoys no special prerogative in making judicial complaints – any person may do so.  Many people do so, and there is no consequence to the complainant if the complaint turns out to be meritless.

3.  Until last year, Oregon had a state-wide problem with district attorneys abusing the recusal process to cherry-pick judges.   District attorneys had the power to recuse a judge without demonstrating a reason, overriding the will of the voters who elected the judge to office.  Between 2016 and 2020, motions barring judges from criminal cases were filed in 20,687 cases across Oregon, overwhelmingly by district attorneys. Michael Gillette, a former Oregon Supreme Court justice, wrote the last major decision on the recusal statute three decades ago.  Testifying before the legislature last year, Gillette explained that when they issued the opinion, the Supreme Court justices didn’t anticipate disqualification of judges from an entire class of cases for months or years, “preventing judges from carrying out the function they were elected to perform.” He said “the result is a system that’s broken.”  (The Oregonian, May 19, 2023.)

In 2023, Senate Bill 807 corrected this problem, and now district attorneys must demonstrate a reason for a recusal.  This aligns Oregon’s procedure with most of the rest of the country.  As a result, I am no longer recused from district attorney cases.  I will continue to require accountability from all parties appearing before me, regardless of who that party may be.

It is also a matter of record that the two main cases leading to the DA’s recusal motion centered on transparency of DA and police operations.  In one, a deputy district attorney had filed a case that resulted in an internal investigation regarding mishandling of evidence.  The internal investigation was conducted by an MPD sergeant who was romantically involved with (and later married) the deputy DA who had filed the case.  The DA objected to the release of the records of the internal investigation to the defense, but were seeking a lengthy prison term for the defendant.  I ordered the release of the records from the internal investigation.  In a second case, it was found that MPD has a written policy that allows MPD to decide internally, without informing the DA, whether or not to disclose certain types of evidence in criminal cases.  This practice is flatly prohibited by a 1995 ruling from the United States Supreme Court (Kyles vs. Whitley, 514 U.S. 419), and I did not allow the DA to proceed in that manner in cases before me.  These cases were cited by the DA in their recusal motion.  The district attorney may wish to issue an additional press release explaining their position on those matters.

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