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Editorial: Resolve this problem respectfully

The virtue of justice consists in moderation, as regulated by wisdom. — Aristotle

Defendants, accusors, judges, prosecutors, defense attorneys, witnesses for both, and juries are the key players in criminal trials.

The Sixth Amendment of the U.S. Constitution governs many of the key rights of an accused in trial proceedings, among them:

• a speedy and public trial,

• an impartial jury of the state and district wherein the crime shall have been committed,

• to be informed of the nature and cause of the accusation,

• to be confronted with the witnesses against him,

• to have a compulsory process for obtaining witnesses in his favor,

• to have the assistance of counsel for his defense.

The American citizenry relies on this combination of players and protections, and a presumption of innocence until proven guilty beyond a reasonable doubt to reach a decision in each case. Each player is vital to the process, particularly considering that they must work within the constraints of limited public resources.

So when the Wasco County’s District Attorney began a systematic process to exclude an elected circuit judge from hearing all of his criminal cases, the public should be concerned that he has stepped outside his role as a prosecutor to the detriment of the court’s ability to provide effective, timely and local justice.

District Attorney Eric Nisely began filing affidavits of prejudice — more than 55 to date — against Judge Janet Stauffer immediately after she ruled not guilty the defendant in a teen rape case.

While Nisley denies the affidavits are “payback” for the ruling, he does not deny that they are related.

Among other issues Nisley has with Stauffer’s work as judge, he objects to her decision to allow a bench trial after the defense attorney requested one over concern that his Latino client might face prejudice before a jury from Wasco County. It is not a new concern here. Latino advocates have rallied in the past out of concerns over fairness in the criminal justice system.

In making a decision to exclude a jury from the proceedings, Stauffer said she was compelled to discern the defendant’s state of mind in requesting the waiver, as well as several other cosiderations, only one of which is the prosecutor’s preference.

Paramount in that process must be safeguarding the rights of the defendant to a fair trial.

It’s important to note that courts do not rule defendants innocent. The official ruling is “not guilty,” meaning the case against the defendant was not proven beyond a reasonable doubt.

Reasonable doubt is important on both sides of the equation: The prosecutor does not have to prove a case beyond all doubts, just what is reasonable. At the other end of the spectrum, the defense need not prove absolute innocence, but must generate some doubt of guilt.

We’re not legal experts here at The Chronicle, but it would seem reasonable that the first course of action for a prosecutor after receiving an adverse ruling from a judge would be to re-examine the state’s evidence against the defendant and how it was presented.

Prosecutors proceed from a presumption of guilt based on their analysis of the evidence. If they don’t believe they have a strong enough case to secure a conviction, they are ill-advised to waste the public’s time and money by pursuing a trial.

But the state’s case is only one part of the equation — the state sets up its evidentiary pins and the defense endeavors to knock them down.

Nisley has taken an extreme course of action in response to perceived judicial problems. He has circumvented a mediated process that should be the forum for resolving issues between the prosecution and the judges. If the statements given by the judiciary are true, he has declared the process broken because meetings were cancelled because they had a poorly planned agenda.

Both actions seem premature and presumptive. The district attorney’s snowfall of paperwork is further hampering a criminal justice system already hampered by ties between the prosecution and judiciary.

The parties in this conflict need to work together — in a process respectful of one another as elected officials — to quickly and reasonably resolve this problem.


Janus81 4 years, 7 months ago

It would be nice if the judiciary, the closest thing we have to royalty in America, would be as "respectful" in their comments as DA Nisley has been. It seems interesting that neither the CHRONICLE nor the presiding judge have seen fit to comment on the routine filing of affidavits by DEFENSE lawyers in Wasco County against the other circuit judge who lives in Wasco County - Judge Wolf. His sin is that he is married to a Deputy DA. There are many, many judges married to lawyers across Oregon. Ethical rules prevent them from appearing in front of a spouse. But no-one say in Multnomah County is bothered by the fact that the former head of the Metro Public Defender Office is married to a very aggressive defense lawyer. The DA is expected to appear in front of him and does. Since judges who were defense lawyers or married to them are much more common than those who have prosecutor spouses it would seem that if Judge Wolf is tocix, so should at least a couple dozen other judges state-wide. Where's the outrage over that?

Judge Crowley could have expressed his concern about one of FIVE judges being disqualified but instead, like Judge Stauffer, launches into a personal attack on DA Nisley, something Nisley does not do in your news pages. Crowley opines that no-one elected Nisley judge. True, but no-one elected Crowley DA and in our system there aren't just defendant rights - like the 6th amendment quoted in your editorial, but since 1999 victims have Rights, enforceable by the DA, who was elected to protect victims, particularly if a judge makes derogatory comments about a case before she's heard the case. Oregon is one of a small number of states that give accused criminals the sole right to "waive jury.." most states require both sides to agree. The right to a jury trial is a community right, like the right to a public trial. How would the CHRONICLE feel if a prominent defendant wanted to "waive his right to a public trial?" This same judge apparently doesn't like certain laws. Judges don't make laws, they referee fair trials. Legislatures change or abolish crimes. It sounds like Nisley tried to "mediate" this dispute but half the problem failed to show up.. IF Nisley as DA doesn't think his client, the people of the state, can get a fair trial, it's his OBLIGATION to do what defense attorneys do with regularity - file an "affidavit against a judge." If a DA think affidavits against s a judge can't be fair period it would be unethical for him to simply file some but not other affidavits. If the Court staff and judge are so concerned, what about the regular practice of defense lawyers filing affidavits against Judge Wolf? Isn't that causing just as much or more problems? Why isn't THAT news? DA Nisley is one of the most respected DAs in Oregon and was most recently the President of the state DA's Association.


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