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Court: Prosecutor has big guns

— PORTLAND — A pair of Oregon Supreme Court decisions have reaffirmed broad prosecutorial authority when the state decides how to charge criminal defendants.

The decisions handed down Thursday by the court separately serve to do two things. In one, the court affirmed prosecutors’ right to break up charges in any way they see fit. The second allows them to apply the “dangerous offender” statute to defendants after prosecutors file an indictment.

Taken together, the decisions serve to affirm the use of two important weapons in Oregon prosecutors’ arsenals, and riled defense attorneys who see each decision as granting overreach to the state.

Prosecutors told Leonard L. Reinke that, if convicted, they would sentence him as a dangerous offender after he was charged with kidnapping a woman to persuade her not to testify against a friend, then sexually assaulting her.

A grand jury indicted him for second-degree kidnapping and a host of other charges, for which he was convicted. The second-degree kidnapping charge carried a 10-year sentence, but the dangerous offender sentence added 30 years.

Reinke challenged the dangerous offender sentence, saying prosecutors should have had to prove the elements of the sentence to the grand jury and put them in the indictment. The trial court disagreed, as did the Oregon Court of Appeals and, on Thursday, the Supreme Court. “The statute is tailored for the very worst of the worst, the most dangerous people we face,” said Multnomah County Chief Deputy District Attorney Chuck Sparks.

“They are not crimes that most defendants are going to want to take to a jury.”

But Portland defense attorney Ryan Scott said adding a dangerous offender sentence is simply a tool for prosecutors to coerce a defendant into pleading guilty with the prospect of a much longer time in prison.

“Prosecutors can charge it pretty willy-nilly (and) it’s intended solely to intimidate them into pleading,” Scott said.

“If we had some sort of supervision (saying) this guy is not a dangerous offender, or he is a dangerous offender, we wouldn’t see as many of these threats and accusations.”

The second decision by the court also helps prosecutors, who say they need to be able to file charges in the way that makes the most sense to the jury. In the case before the court, a woman was accused of stealing $230,000 from her employer in 16 months.

Washington County Senior Deputy District Attorney Bracken McKey decided to charge her with 16 counts of embezzlement, one for each month.

“I was faced with the choice of, how am I going to hold this person accountable while presenting this in an organized fashion to the jury,” McKey said in an interview.

The court had to weigh whether a prosecutor must adhere to “a coherent, systematic policy in making charging decisions.” The trial court said he didn’t, but the Oregon Court of Appeals ruled that he did.

The Supreme Court overturned the appellate court decision and sided with McKey.

“It’s hard to foresee the different permutations that are going to show up,” McKey said. “It’s impossible to have a one-size fits-all policy that captures that.”

Scott, the defense attorney, said such discretion puts too much power in prosecutors’ hands, especially for crimes that could result in either probation or prison time, depending on the way the charges are stacked.

“Whether somebody’s crime deserves prison or probation is less about the harm they did and more about the way the charges (are structured) that suddenly convert probation into prison,” Scott said. “My feeling is, a person’s potential sentence should be based on the seriousness of the crime (not) on how clever a prosecutor can be in reconfiguring the charges.”

Reach reporter Nigel Duara on Twitter at


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