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Policy Manual

Policy Manual

Mike Schmidt, 1200 SW First Avenue, Suite 5200 Portland, OR 97204-1193 Phone: 503-988-3162 Fax: 503-988-3643 www.mcda.us

POLICY MANUAL

Property of the Multnomah County District Attorney’s Office 2020

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TABLE OF CONTENTS

GENERAL POLICIES ...... 1 1.0 Professional Ethics ...... 1 1.05 Professionalism ...... 2 1.06 Profiling ...... 3 1.10 Affidavits of Prejudice...... 4 1.11 Pro Tem : Cases ...... 5 1.12 Pro Tem Judges: Cases ...... 5 1.13 Complaints ...... 5 1.20 Subpoenaing an Attorney ...... 7 1.22 Subpoenaing Federal Employees ...... 8 1.30 Attorney Contact with Jurors ...... 8 1.35 Teachers, School Employees, Coaches, and Volunteers .. 8 1.40 Criminal Activity by State Licensed Professionals ...... 9 2.0 Victims ...... 9 2.10 Crime Victims Bill of Rights ...... 10 2.11 Victims Constitutional Rights ...... 11 2.30 ...... 12 3.0 Criminal Prosecution ...... 13 3.01 Criminal Case Records: Retrieval/Retention/Destruction .... 13 3.02 Public Records ...... 15 3.03 Search Warrants ...... 15 3.04 Screening and Charging Analysis of Criminal Cases ..... 17 3.041 Considerations and Analysis Involving Experiencing a Qualifying Mental Illness in Misdemeanor Cases ...... 19 3.042 Aid and Assist Policy ...... 22 3.05 Assignment of ...... 25 3.06 Felony Charging ...... 25 3.07 Discovery of Reports ...... 34 3.071 Government Witness Index ...... 34 3.075 Presiding ’s Order regarding discovery when testifies in grand ...... 41 3.08 Criminal History Information ...... 41 3.10 Sex Crime Cases – Disclosures in Treatment ...... 42 iii

3.11 Failure to Appear Policy ...... 42 3.20 Issuing Cases for Other Sections ...... 44 3.21 Reissuance of Charges after Dismissal ...... 45 3.22 Office actions regarding foreign citizens ...... 45 3.30 Guidelines for Prosecution of RICO ...... 47 3.31 Consideration Prior to Seeking – Generally ...... 50 3.40 Guidelines for Prosecution of Environmental ...... 55 3.50 Policy ...... 62 3.55 Material Witness Warrant Policy ...... 63 3.56 Jail Call Protocol ...... 65 3.57 Eyewitness Identification ...... 66 3.58 Controlled Substance Policy ...... 77 3.59 Ordering Transcripts ...... 78 3.60 Stipulated Facts Trial ...... 79 3.65 Jury and Trial Evaluations ...... 80 3.70 Expert Witness Fees ...... 80 3.75 Polygraph Examinations ...... 82 3.80 State’s Appeal Review Procedure ...... 83 3.85 Forfeiture ...... 87 3.90 Weapons Charges and Destruction of Weapons ...... 87 3.95 Structured Intermediate Sanctions ...... 90 3.96 Homicide Case Closing Protocol ...... 91 3.97 Post-Conviction DDA Position ...... 93 3.98 MCDA USAK – Post Conviction Policy ...... 96 3.99 MCDA USAK - Victim Notification Policy ...... 102 4.0 / Negotiations...... 119 4.01 Plea Offer Policy ...... 119 4.02 Civil Compromise Policy ...... 121 4.05 Second Look Policy ...... 123 4.06 Juvenile Waiver to Adult Court Policy ...... 129 4.10 Criminal Case Resolution ...... 132 4.11 Timing of Plea Negotiations in ...... 140 4.13 Cooperating Witness Protocol ...... 140 4.15 Proffers ...... 142 4.17 Guidelines for Use of Testifying Informants ...... 142 4.18 Unauthorized Use of a Vehicle (UUV) and Possession of a Stolen Vehicle (PSV) Policy ...... 144 4.19 Earned Discharge and Early Termination Policy ...... 145 iv

4.20 Misdemeanor Cases ...... 147 4.30 Electronic Surveillance Orders ...... 148 4.40 Grants of Immunity ...... 148 4.50 Mental Disease or Defect ...... 153 4.60 Joinder ...... 153 4.70 Out-of-State Warrant Cases ...... 154 4.71 Request for Dismissal of Warrants ...... 156 5.0 Interagency Prosecution Matters ...... 157 5.10 Conflict of Interest and Assigned Out Cases ...... 158 5.20 Federal/State Requests for Investigation and Prosecution .. 158 5.30 Felon in Possession of a Firearm Cases ...... 158 5.40 Criminal Investigations and Alleged Misconduct of Sworn Enforcement Officers ...... 159 5.50 Police Discharge of Firearms Involving Death or Physical Injury ...... 159 5.60 Unlawful Flight to Avoid Prosecution ...... 160 6.0 Press/Public Relations ...... 162 6.10 General Guidelines ...... 162 6.15 Press Releases ...... 164 6.20 Release of Presentence Investigation Reports ...... 165 6.30 Speakers Bureau ...... 165 7.0 General Personnel Issues...... 167 7.05 Affirmative Action ...... 167 7.10 Authorization for Use of Private Automobiles and Reimbursement for Expenses Policy ...... 167 7.11 Reimbursement for Expenses Related to Approved Use of Private Automobiles ...... 168 7.12 Reporting Accidents ...... 169 7.15 Workplace /Discrimination ...... 169 7.20 Sexual Harassment ...... 169 7.30 Political Activity ...... 175 7.40 Communicable Disease Policy ...... 177 7.50 Substance Abuse Policy ...... 178 7.51 Policy Intent ...... 178 7.52 Prohibited Alcohol and Illegal Drug Use ...... 182 7.60 Employee Firearm Policy ...... 183

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7.70 Computer, Internet, E-mail, and Voice Mail Uses ...... 184 7.71 Uses ...... 185 7.72 Employee Responsibilities ...... 185 7.73 and Limits ...... 187 7.74 E-mail Addresses ...... 188 7.75 Equipment Checkout Policy and Procedures: ...... 189 7.78 Communicating Information inside and outside of the office ...... 192 7.80 Cellular Phone Policy ...... 193 7.90 Certain Legal Issues ...... 194 7.91 Sensitive Information ...... 194 7.92 Staff Member as Crime Victim or Arrestee ...... 194 7.93 ...... 195 7.94 Parking Tickets and Traffic Citations ...... 195 7.95 Investigation of Staff and Criminal Associations ...... 196 7.96 Association with Victims/Witnesses or Defendants ..... 196 7.97 Inclement Weather, Administrative Closures and Special Emergencies Policy ...... 197 8.0 Professional Staff Compensation ...... 200 8.01 Salary and Salary Administration ...... 200 8.02 Vacation ...... 200 8.03 Vacation Requests – Local 88 Staff ...... 201 8.04 Vacation Leave General ...... 202 8.05 Vacation Leave During Peak Request Seasons (Holidays and Summer) ...... 202 8.10 Other Leaves ...... 202 8.11 Sick Leave/Leave Without Pay ...... 202 8.12 Family Medical Leave Act (FMLA) and Medical Leave Act (OFLA) ...... 203 8.13 Leave of Absence ...... 203 8.14 Parental Leave ...... 204 8.15 Leave for Jury Duty ...... 204 8.16 Educational Leave and Professional Recognition Leave 205 8.20 Access to Information ...... 205 8.21 Communications and Access to Information ...... 206 8.22 Juvenile Records ...... 207

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8.23 Access to Restricted Databases such as LEDS, NCIC, CRIMES, Attorney Manager, RegJIN, ESWIS and LOIS ...... 207 8.24 Physical Access to Office ...... 208 8.30 Procedures for Emergencies ...... 208 8.31 Evacuation ...... 208 8.32 Emergency Communications ...... 209 8.40 Recommendations and Public Statements ...... 210 8.41 Letters of Reference ...... 210 8.42 Public Statements Regarding Other Agencies, Individuals. 210 8.60 Other Compensation and Employment ...... 211 8.61 Outside Employment ...... 211 8.62 Professional Legal Work ...... 211 8.63 Other Types of Employment...... 212 8.70 Acceptance of Gifts or Fees ...... 213 8.71 Acceptance of Gifts or Favors ...... 213 8.72 Acceptance of Fees or Honorariums ...... 213 8.80 Work Performance Expectations ...... 214 8.81 Office Hours ...... 214 8.83 On-Call Duty ...... 215 8.85 Dress Policy ...... 215 8.86 Debriefing – Staff Leaving the Office ...... 216 8.87 Music in the Workplace ...... 217 8.88 Headphones ...... 217 9.0 Training, Education and Travel ...... 217 9.10 Continuing Requirements ...... 217 9.20 Education or Training Event Review Process and Travel Funds Authorization ...... 218

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GENERAL POLICIES

1.0 Professional Ethics

All staff employed by this office are expected to maintain the highest possible level of ethical standards. This means that everyone is expected to be mindful that public service is a public trust and our job as public servants is to serve with integrity. We are all expected to do the right thing for the right reasons.

Attorneys are expected to maintain the highest ethical standards of the legal profession. They should be familiar with, and their performance should be consistent with, the Model Rules of Professional Conduct of the American Bar Association and the Oregon Rules of Professional Conduct. In addition, they are expected to know and follow all rules promulgated by the Oregon Supreme Court, and the Supplementary Local Rules promulgated by the Multnomah County Circuit Court. Deputy district attorneys (DDAs) are also encouraged to read and apply the principles stated in National Prosecutions Standards, published by the National District Attorneys Association.

Staff members are also encouraged to review the Multnomah County Code of Ethics.

It is not possible to anticipate every situation that you will encounter in your work in the District Attorney’s Office. Therefore, not every conceivable situation is included in this policy manual. You may not be able to find clear guidelines or information on how to deal with every matter in the following pages. You should always consult your immediate supervisor, the Senior Deputy (SDDA) in charge of your work unit, a Chief Deputy (CDDA), the First Assistant to the District Attorney or the District Attorney, if you have a question or concern.

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Please remember, all of you hold a public trust, you represent the Office of the District Attorney. You are expected to exercise good and common sense in your everyday dealings with the public, representatives of other departments, agencies and organizations, and each other.

It is also important to remember that, as a professional, your job often does not end at the close of the workday. You are responsible for your behavior outside of the organization and need to be aware that public perception can be a powerful influence. We have a responsibility to perform our duties as public servants with integrity and to serve the public trust.

1.05 Professionalism

A owes to the administration of personal dignity, integrity, and independence. We must always strive to adhere to the highest principles of professionalism. Those principles must be applied to our dealings with the public, defense attorneys, judges, law enforcement officials, professionals, and with each other. It means being respectful, being on time, scrupulously observing all agreements, being honest, following through, being courteous, candid, and cooperative. It includes, in normal circumstances, simple things like returning phone calls and e-mails promptly.

The following is drawn from part of a speech by Justice Sandra Day O’Connor of the Supreme Court:

“To me, the essence of professionalism is a commitment to develop one’s skills to the fullest and to apply that responsibly to the problems at hand. Professionalism requires adherence to the highest ethical standards of conduct and a willingness to subordinate narrow self-interest in pursuit of the more fundamental goal of public service. Because of the tremendous power they wield in our system, must never forget that their duty is to serve their clients fairly and skillfully. At the

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same time, lawyers must temper bold advocacy for their clients with a sense of responsibility to the larger legal system, which strives, however imperfectly, to provide justice for all.”

1.06 Profiling

1. No person shall be targeted by any member of this office (attorney or non-attorney) on the suspicion of the individual’s having violated a provision of law, based solely on the individual’s real or perceived age, race, ethnicity, color, national origin, language, sex, gender identity, sexual orientation, political affiliation, religion, homelessness or disability, unless the attorney (or non- attorney) is acting on a description or information related to an identified or suspected violation of a provision of law.

2. If a member of the public believes that they have been subjected to profiling by any person affiliated with the Multnomah County District Attorney’s Office, the person may file a complaint with the Multnomah County District Attorney’s Office via the following methods:

a. In person by visiting the main office, 1200 SW First Avenue, Suite 5200; or

b. In writing, signed by the complainant, and delivered by hand, postal mail, facsimile 503-988-3643, e-mail ([email protected] );or

c. By telephone 503-988-3162. Telephonic reports may be made anonymously or through a third party.

3. Complaints may be made using the form found here. Use of the form is not required and any complaint submitted will be dealt with accordingly.

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4. Every profiling complaint received will be copied and submitted to the Law Enforcement Contacts Policy and Data Review Committee at:

Law Enforcement Contacts Policy and Data Review Committee ([email protected]) ATTN: CCJ-JUST P.O. Box 751 Portland, OR 97204

5. Upon receipt of a complaint alleging profiling, the First Assistant to the District Attorney shall conduct a thorough investigation of the complaint. The aforementioned investigation will be conducted within 60 days of the filing of the complaint. At the conclusion of the investigation, the First Assistant will forward a report containing findings regarding the complaint, along with any recommended actions, to the District Attorney. Copies of the report will be forwarded to the Law Enforcement Contacts Policy and Data Review Committee and to the original complainant (unless the complaint was made anonymously).

1.10 Affidavits of Prejudice

Affidavits of prejudice, motions to excuse, or requests for a judge to recuse themselves shall not be filed unless approved by the District Attorney. Any DDA having information that they believe reflects a sitting judge’s prejudice toward the state shall inform the CDDA in their division in writing. Copies of those reports shall be given to the District Attorney and to the First Assistant to the District Attorney.

Affidavits of prejudice shall be filed with the presiding circuit court judge at 1:30 p.m. ex parte the day the state notifies the court an affidavit will be filed. A copy shall be served to the chambers of the judge who is the subject of the affidavit.

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If any member of the District Attorney’s Office files an affidavit of prejudice, a copy shall be forwarded immediately to the District Attorney.

1.11 Pro Tem Judges: Felony Cases

Occasionally pro tem judges are assigned to sit on criminal matters, however, the state does not have to accept pro tem judges on felony criminal cases. It is the policy of our office that in no felony criminal matter other than shall we accept a pro tem judge unless they are a sitting judge in another county or a retired judge in another county. This policy is not intended to be critical of pro tem judges, but instead is a recognition that felony criminal matters should be tried only before experienced judges who have been selected by the citizens for that responsibility. This policy also removes any possible problem of conflict of interest.

1.12 Pro Tem Judges: Misdemeanor Cases

In misdemeanor the use of pro tem judges has been more extensive due to caseload pressure. Office experience has been that some in most all instances of the attorneys serving occasionally as pro tem judges have rendered uniformly fair service to the state and the defense; however, some have not.

DDAs having information regarding pro tem judges or referees who fail to give capable or fair service to the state or the defense shall notify the CDDA of the division to which the DDA is currently assigned. After review of such information with the District Attorney, steps may be taken to notify the presiding judge or referee that affidavits of prejudice may be filed against the pro tem judge or referee.

1.13 Bar Complaints

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Occasionally, a complaint regarding the conduct of a member of the office will be made (by a defendant, witness, victim, or an attorney) to the Oregon State Bar (OSB). The OSB has a duty to investigate every complaint made about an Oregon attorney’s conduct.

All inquiries and complaints about conduct are reviewed first by the Client Assistance Office (CAO) to determine if there is sufficient basis to warrant further investigation by the bar. CAO staff may send the attorney (subject of the complaint) a letter requesting a response to the allegations. Included with the request for a response will be a copy of the complaint itself. If there is no sufficient basis to warrant further investigation the complaint will be dismissed and the attorney will be notified. If the CAO finds that there is sufficient basis to warrant further investigation your complaint will be referred to Disciplinary 's Office.

The Disciplinary Counsel's Office investigates all complaints referred by the Client Assistance Office. The attorney may be asked to submit additional information or answer specific questions. Personal or telephone interviews may be conducted and Discipline Counsel’s staff may gather information from other sources. The final decision of the Disciplinary Counsel will depend upon the weight of all the available evidence.

If Disciplinary Counsel's Office does not find sufficient evidence, the complaint will be dismissed and the attorney and the complainant will be notified. The complainant may ask for review of the dismissal decision.

If Disciplinary Counsel's Office finds sufficient evidence, the complaint is submitted to the State Professional Responsibility Board (SPRB) for review. The SPRB is composed of seven lawyers and two non-lawyer (public) members. The SPRB can dismiss the complaint, send the lawyer to a , admonish the lawyer, or authorize formal charges against the

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lawyer. The SPRB can also refer the complaint to a Local Professional Responsibility Committee for further investigation.

Upon receipt of an official notice from the Oregon State Bar regarding a complaint (whether from CAO or Disciplinary Counsel), the DDA shall forward copies of all materials to the First Assistant to the District Attorney, the CDDA of the attorneys division, and the Staff Assistant.

Attorneys are to cooperate fully with the investigation, working with the First Assistant to the District Attorney and the CDDA to be responsive to the any questions or requests for documents. All correspondence will be copied to the First Assistant to the District Attorney, the CDDA, and the Staff Assistant.

1.20 Subpoenaing an Attorney

Unless otherwise approved by the District Attorney, whenever it is necessary to require the attendance of an attorney at any stage of a criminal proceeding, the following steps shall be taken:

A. Contact the attorney by phone and explain the purpose of their testimony. At that time try to arrange the appearance at a mutually convenient time.

B. Ask the attorney if they will appear voluntarily or if they desire a subpoena, either mailed or personally served. The DDA may arrange a stipulation with the attorney as to the substance of their testimony when appropriate.

C. Follow up any phone conversation with a confirming letter.

D. Never serve an attorney with a subpoena without first attempting to contact the attorney using all reasonable means, by phone or letter.

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E. The DDA shall notify the CDDA of their division prior to securing the attendance (either voluntarily or through subpoena process) of an attorney.

1.22 Subpoenaing Federal Employees

When a witness who is a federal employee is needed, certain procedures apply. These procedures are outlined in Volume 28, Section 16.21 through 16.29 of the Code of Federal . All DDAs should follow this. The United States Attorney’s Office should be consulted if there are any questions.

1.30 Attorney Contact with Jurors

Review UTCR 3.120. Except as necessary during trial and except as provided in UTCR 3.120(12), attorneys or their agents, parties, witnesses or court employees shall not initiate contact with any juror concerning any case, that the juror was sworn to try.

After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of, or make comments, to a member of the jury that are calculated merely to harass or embarrass the juror or to influence the juror’s actions in future jury service.

1.35 Teachers, School Employees, Coaches, and Volunteers

In order to enhance the investigation and prosecution of those individuals who are entrusted with the education of children, this office will coordinate with school districts within Multnomah County to encourage the reporting of crimes and will work with law enforcement to designate an investigator or investigators who will focus on these crimes.

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All police reports documenting suspected criminal activity committed by teachers, school employees, coaches and volunteers, and others who have contact with children in an educational setting, will be reviewed by the SDDA assigned to Unit D. These cases may remain in Unit D or be assigned to other trial units for prosecution. The Unit D SDDA will maintain a log (spreadsheet) of cases submitted and their dispositions.

1.40 Criminal Activity by State Licensed Professionals

Any DDA becoming aware that a defendant is under investigation for or has been charged with a crime and is a member of a profession or occupation that is licensed by a state regulatory agency shall report this information to the CDDA of their division, the First Assistant to the District Attorney, or the District Attorney.

If the person has been charged with a crime, upon conclusion of the criminal proceedings, the trial DDA will forward to the respective CDDA of their division a copy of the charging instrument, the police reports, and a note as to the disposition of the case. It will be the policy of this office to forward this information to the appropriate state-licensing agency for its consideration.

2.0 Crime Victims

A primary goal of this office is to ensure crime victims a meaningful role in the criminal and juvenile justice system and to accord them due dignity and respect. To this end, every effort should be made by all members of our staff to maximize victim involvement at every possible stage of a criminal case. Every DDA should be familiar with the statutory Crime Victims’ Bill of Rights (see ORS 147.405 and related ) and the state constitutional rights of crime victims contained in Article 1, Sections 42 and 43 of the Bill of Rights of the of Oregon. The victim needs to be considered when setting

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hearing dates and when negotiating cases. The victim must be consulted regarding the negotiated settlement of any person felony case.

It is the duty of the DDA responsible for a case, whenever possible and in consultation with any assigned victim advocate, to advise victims of their rights as soon as reasonably practical. If the victim wishes to exercise their rights, it is the responsibility of the DDA, either directly or through the victim advocate, to inform the victim of hearings, negotiations, or any other right the victim wishes to exercise.

It is the responsibility of each DDA to see that victims are not only active participants in the criminal proceedings, but that they receive whatever assistance or referral information this office can provide. Therefore, all members of this office are expected to be familiar with the services and programs available to victims and to refer victims to those services whenever needed.

2.10 Crime Victims Bill of Rights

In 1986, State Measure 10 was passed by the Oregon voters creating a Crime Victims Bill of Rights. Among these are:

A. The right, if requested, to keep the victim’s address and phone number from the person charged; [ORS 135.970(1)]

B. The right, if a defense attorney or representative contacts the victim, to be told who they are, that the victim does not have to talk to them, and that the victim may have a DDA present if they do decide to talk to a defense attorney; [ORS 135.970(2)]

C. The right to not be interviewed or deposed by, or required to give discovery to, the defendant or defense attorney unless subpoenaed; [ORS 135.970(3)]

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D. The right to a court hearing if harassed or intimidated by the person charged; [ORS 135.970(4)]

E. The right to be considered when court dates and hearings are changed; [ORS 136.145]

F. The right to be inside the courtroom during the trial; [ORS 40.385] and

G. The right to appear personally or with their own attorney, in addition to the DDA, and to express their views at the time of disposition. [ORS 137.013]

2.11 Victims Constitutional Rights

Article I Sections 42 and 43 of the Oregon Constitution repeats and expands the statutory rights of victims in constitutional form. Every DDA should be familiar with those sections and the rights afforded victims. Among those are:

A. The right to be present at, and notified in advance of, critical stages of the case held in open court; [Article I, Section 42(1)(a)]

B. The right to request, and receive, information about the conviction, sentence, , criminal history, and future release from custody of the criminal defendant or youth offender; [Article I, Section 42(1)(b)]

C. The right to receive prompt restitution; [Article I, Section 42(1)(d) and

D. The right to be reasonably protected from the defendant or youth offender throughout the or delinquency proceedings. [Article I, Section 43(1)(a)]

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2.30 Restitution

Victims have both statutory and constitutional rights to restitution. Article I Section 42(1)(d) of the Oregon Constitution states that crime victims have “[t]he right to receive prompt restitution from the convicted criminal who caused the victim’s loss or injury.” Additionally, ORS 137.106(1)(a) obligates the district attorney to investigate and present to the court “evidence of the nature and amount of damages” for restitution. It is important to familiarize yourself with the restitution statutes ORS 137.103 to 137.109 to ensure that the victims’ interests are protected.

ORS 137.106(1) requires a court to impose full restitution in criminal cases, regardless of the defendant’s ability to pay at the time. It is the policy of this office to seek restitution equaling the amount of economic loss for victims of all types of crimes. In so doing, it is not intended that such restitution will supersede or obviate any civil claims a victim might make against a defendant.

To assist the DDA in gathering the information necessary to support a restitution request, the Restitution Unit provides loss forms to victims, with instructions to return the form by a specific date. That form plus documentation is then placed in the DA file and CRIMES/Attorney Manager is updated to reflect the information that was received. Although Restitution Unit staff may assist in gathering restitution information from the victim, when the victim is represented by counsel, it is the responsibility of the DDA handling the case to collect the restitution information from the victim’s attorney.

In all cases where a victim has sustained a loss, it is the responsibility of the DDA who handles the sentencing hearing to be familiar with the victim’s restitution request and to aggressively request from the sentencing judge restitution on

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behalf of the victim. This shall be the policy even though the defendant is sentenced to a lengthy period of incarceration.

In cases where more than one defendant is held responsible for a criminal act causing an economic loss, it is generally the position of this office to hold all defendants jointly and severally liable for the payment of restitution. Therefore, judges should be requested to pronounce judgments in such a way that, in the absence of mitigating circumstances, all defendants are held equally liable for a victim’s losses.

Restitution to victims is an important part of a defendant’s sanctions and this office will pursue violation hearings for those who willfully fail to make scheduled court- ordered payments.

In those cases where there is no monetary restitution, community service or other symbolic restitution may be recommended.

3.0 Criminal Prosecution

3.01 Criminal Case Records: Retrieval/Retention/Destruction

A. Retrieval from Archives

The policy of this office is to retain closed cases on site as long as practical for appeal and probation violation possibilities. It is possible to have a file retrieved from archives within 24 hours if the request is made before 12:00 p.m. the day before it is needed.

To retrieve a case file from archives, a request should be directed to a support staff person in records. The support staff person will look up the case in the case management system to determine the control and box number of where the file is being stored. The file will then be requested from

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archives. If the file has already been destroyed, but microfilmed, the retrieval may take up to five days to reassemble. It is important to make your request for a file in archives as soon as possible if it is needed for a scheduled court proceeding.

B. Retention/Destruction Schedule

The following schedule is for: (1) the retention period of criminal cases held in-house; (2) the period of time held in the county archive storage warehouse; and (3) when the archive department either destroys or microfilms the records.

Case Type Retention Period Homicide ...... permanent Class A Felonies Guilty ...... 63 years after closed Not Guilty ...... 11 years after closed Class B Felonies Guilty ...... 11 years after closed Not Guilty ...... 9 years after closed Class C Felonies Guilty ...... 8 years after closed Not Guilty ...... 6 years after closed Support Enforcement ... 3 years after closed Civil Forfeiture ...... 5 years after closed Post-Conviction Relief ... retain with, and for as long as, the underlying criminal case Public Records Appeals .. 2 years after closed Expungement Files ...... 10 years after closed1

1 Expungement files from cases where the court has set aside a record of conviction or arrest are not accessible to anyone but the expungement clerk except by express authorization of the First Assistant to the District Attorney or the District Attorney. 14

The State Archivist has established by rule minimum retention periods for various categories of district attorney files, which are codified in OAR 166-150-0095. The retention schedule above meets or exceeds the required retention period for each category.

3.02 Public Records

All documents and materials (including e-mails) obtained by or staff as part of their job responsibilities and retained in their office are presumed to be public records under ORS Chapter 192. Records retained for active cases and ongoing investigations are generally exempt from disclosure. Otherwise, these records are generally available for public inspection.

It is not the policy of this office to retain everything that crosses the desk of a prosecutor or staff. DDAs are responsible for complying with the Multnomah County records retention schedule applicable to their units.

As to any record not specifically described in the retention schedule, it is the option of the DDA to destroy, retain or return material not placed in the official District Attorney file after the conclusion of the case. Consider retaining only those materials that cannot be obtained from other sources. DDAs who decide to retain materials in their offices must maintain these materials so that they can readily be identified and retrieved at a later date.

If a DDA or staff person leaves the office, those records that have been retained should be given to their immediate supervisor.

3.03 Search Warrants

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No DDA shall prepare or authorize a concerning the search of an attorney’s office, a news gathering organization’s premises, an elected official’s office, or a reporter’s notes without the specific approval of the District Attorney. The District Attorney and CDDA of the affected division shall be advised prior to the service of any warrant on any case that could potentially generate exceptional scrutiny, such as high publicity, sensitivity or notoriety.

NOTE: Multnomah County Supplemental Local Trial Court Rules require that a DDA personally review the facts supporting every search warrant request.

Rule 4.035 Issuance of Search Warrants

1. A request for a search warrant may be made to any circuit court judge, subject to any procedures established by the presiding judge.

2. Prior to presenting a request for a search warrant, the applicant shall:

a. Obtain prior approval from an MCDA attorney who has personally reviewed the facts underlying the application;

b. Provide the name of the reviewing MCDA attorney; and

c. Verify that the search warrant application has not been presented to any other judge.

3. For search warrant requests outside of normal business hours of the court, the request for a search warrant must be made to the judge assigned to be the “duty judge” for after-hours search warrant requests. If the duty judge cannot be contacted, the request may then be made to any other circuit court judge.

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3.04 Screening and Charging Analysis of Criminal Cases

Screening is the process which includes a determination to initiate or pursue criminal charges. Except for the , or involved cases, the decision to initiate or pursue criminal charges is framed within the applicable statutes, , rules of evidence and Constitution (both Oregon and US) coupled with adherence to office policies, professional ethics, standards and the discretion of the prosecutor.

The prosecutor is not obligated to file all possible charges which available evidence might support. The prosecutor may properly exercise discretion to present only those charges, which are consistent with the evidence and in the best interests of justice. Among the factors which the prosecutor may consider in making the charging decision include but are not necessarily limited to:

A. Nature of the offense;

B. Characteristics of the offender;

C. Doubt as to the guilt of the accused;

D. The interest and expressed wishes of the victim;

E. Any mitigating circumstances. In making the charging decision, the DDA shall file only those charges, which the DDA believes can be reasonably substantiated by admissible evidence at trial. The DDA shall not to use the charging decision as a leverage device (i.e., overcharging) in attempting to obtain a guilty plea to a lesser charge. Also to be avoided is the charging of an excessive number of counts, or informations merely to provide sufficient leverage to persuade a defendant to enter a guilty plea to one or several charges;

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F. Any provisions for restitution;

G. Excessive costs of prosecution in relation to the of the offense;

H. Possible deterrent value of the prosecution;

I. Aid to other prosecutorial goals through non-prosecution;

J. The age of the case;

K. Insufficiency of admissible evidence to support a case;

L. Attitude, physical and mental state of the defendant;

M. The charging practice of the office;

N. Treating similarly situated defendants the same;

O. Recommendations of the involved law enforcement agency;

P. Possible improper motives of a victim or witness;

Q. A history of non-enforcement of a particular or ordinance;

R. Likelihood of prosecution by another criminal justice authority;

S. The availability of suitable diversion programs;

T. Any mitigating circumstances; and

U. Undue hardship caused to the accused.

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Following a careful consideration of all the above factors and variables, if a DDA elects to decline prosecution in a particular case, the DDA will state the reasons in a prosecution decline memorandum. This document, in addition to providing a case screening record for our office, is utilized to notify law enforcement agencies and victims of the disposition of a criminal incident and the reasons for the decision. DDAs should be aware that the prosecution decline memorandum may, in some instances, be made public and should therefore continue to use good judgment and clarity in their wording of the document.

3.041 Considerations and Analysis Involving Defendants Experiencing a Qualifying Mental Illness in Misdemeanor Cases

We endeavor to evaluate the nature and severity of a qualifying mental illness when also considering the facts of an incident in order to reach an outcome that appropriately balances public safety, rehabilitation, availability of services and compassion for all involved parties. This office recognizes that those experiencing mental illness can and, in some cases, should be held criminally responsible for offenses they commit especially if those offenses are person misdemeanor crimes. However, in most cases involving non-person , the balance will tip away from traditional criminal prosecution models for these individuals.

DDAs evaluating non-person misdemeanor cases in which the criminal behavior appears to arise out of a qualifying mental illness shall follow the guidelines below and in consultation with their SDDA. A qualifying mental illness includes schizophrenia, schizoaffective disorder, bi-polar disorder, and major depression as referenced in section one of the Mental Health Court Compact.

1. The reviewing DDA shall carefully consider whether, based on the information known to the DDA at the time of review, the defendant’s non-person misdemeanor

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criminal behavior was directly related to a qualifying mental illness and the degree to which it impacts the merits of the case.

2. Where a person experiencing a qualifying mental illness has been arrested for a non-person misdemeanor offense directly related to that mental illness and this office has received documentation that the individual has engaged with a mental health service provider or system partner post-offense and pre-, this office will not issue criminal charges absent extraordinary circumstances and the approval of the Pre-Trial or MTU SDDA.

3. Where a person experiencing a qualifying mental illness is charged with only non-person misdemeanor offenses directly related to that mental illness, and that person has not engaged with a mental health service provider or system partner pre-arraignment, notwithstanding any other issuing or case resolution guidelines, the offense shall be eligible for community court and shall be eligible for dismissal if the defendant successfully completes a social service plan developed with the social worker in community court.

4. In determining whether an individual’s criminality is directly related to a qualifying mental illness for purpose of this analysis, this office will consider:

a. Prior criminal cases reviewed by this office involving the individual; and b. Prior aid and assist determinations made by the court pursuant to ORS 161.370; and

c. The facts of the present incident; and

d. The recognizance evaluation, if any; and

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e. Information supplied by defense counsel, if any; and

f. Any other reasonably accessible documentation tending to suggest a history of mental illness; and

g. Whether the individual has a qualifying mental illness consistent with those diagnoses listed in section one of the Mental Health Court Compact which includes: schizophrenia, schizoaffective disorder, bi-polar disorder, and major depression.

In many cases, the information available to this office will not be sufficient to determine whether a person’s criminality is directly related to a qualifying mental illness within the intent and meaning of this policy at the time of arrest or initial screening for prosecution. If this office subsequently becomes aware that a charged person meets the criteria above, the assigned unit’s SDDA shall immediately review the case and determine 1) if continuing the prosecution is in the best interest of justice, and 2) if the defendant is in custody, whether a less restrictive option is more appropriate.

5. When the District Attorney’s Office becomes aware that a defendant may fit within the terms of this policy, and the defendant is held in court ordered custody exclusively on a person or non-person misdemeanor, the following custody status review process shall occur to determine this office’s position regarding the least restrictive appropriate option is available.

a. This office shall take the position that in no event, without CDAA approval, shall an individual meeting the criteria in section four (see above) who is charged with a non-person misdemeanor as the primary offense, remain in custody pending trial for more than 10 consecutive calendar days. Instead it shall be the

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position of this office that the least restrictive appropriate option is preferred.

b. When reviewing the least restrictive release option available, the following non-exclusive list of factors shall be considered:

i. Public safety and the input of any victims;

ii. The best interests of the individual and the community;

iii. The resources available to the defendant out of custody;

iv. The defendant’s likelihood to appear in court.

c. If the court elects to hold an individual in custody pending trial in excess of 10 consecutive calendar days, the CDDA shall review the custody question every 10 days thereafter, or sooner upon receipt of new information from defense counsel or any other system partner, to determine whether the interests of justice are furthered by continued detention. If new, relevant information is obtained during the period of the review of the custody status, we shall (consistent with other duties, policies and obligations) bring that new relevant information to the attention of the court and counsel.

3.042 Aid and Assist Policy

1. This office recognizes that mental health competency restoration services in the community and at the Oregon State Hospital are costly and limited, and that in some cases alternatives to typical criminal prosecution are a more appropriate outcome. Consequently, when a defendant is found unable to aid and assist, this office shall support the least restrictive appropriate form of

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competency restoration that balances public safety, rehabilitation, availability of services and compassion for all involved parties of the case.

2. When the issue of a defendant’s ability to aid and assist is raised by defense counsel, the court, or other parties, the defendant’s case shall be placed on the aid and assist docket as soon as possible. Cases assigned to a specific judge shall be heard in front of that specific judge, and not on the aid and assist docket. Prior to cases being heard on the aid and assist docket, the Mental Health Deputy District Attorney (MHDDA) shall staff the case with the Mental Health Judge, defense counsel, and forensic diversion. At the staffing, the MHDDA shall gather information regarding the defendant’s current mental health status, the defendant’s mental health history, prior mental health evaluations, potential treatment plans if the defendant were to be found unable to aid and assist, and potential alternatives to prosecution.

3. In most cases, the MHDDA will rely upon a recent mental health evaluation in determining the State’s position regarding a defendant being found unable to aid and assist. However, this office recognizes that there are limited spots in Multnomah County’s Rapid Evaluation process and persons with a mental illness can spend extended periods of time in custody awaiting a mental health evaluation. Consequently, the MHDDA may proceed without a recent evaluation for defendants facing less serious charges, who have a well-documented qualifying mental health diagnosis, and whose current presentation clearly establishes that they are likely to be found unable to aid and assist.

4. When the court does find a defendant unable to aid and assist pursuant to ORS 161.370, the MHDDA shall assess whether continued prosecution is in the best interest of

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justice or whether an alternative resolution is more appropriate. If continued prosecution is deemed appropriate, the MHDDA shall assess the State’s position regarding whether the defendant can safely regain competency through community restoration. If community restoration is not a possibility, then the MHDDA shall assess whether the State’s position should be to ask the court to send the defendant to the Oregon State Hospital for competency restoration.

a. In making these assessments the MHDDA shall consider the following factors: i. The severity of the crime and the defendant’s criminal history;

ii. The victim’s position;

iii. Community safety;

iv. The cost and availability of competency restoration in the community and at the Oregon State Hospital;

v. The best interest of the defendant;

vi. The likelihood of the defendant regaining competency;

vii. Alternatives to prosecution, including the possibility of initiating civil commitment proceedings; and

viii. Any other relevant information.

b. In no case shall a defendant charged with only a non- person misdemeanor crime as the primary offense be sent to the Oregon State Hospital for competency restoration absent MTU SDDA approval.

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5. In anticipation of a criminal case being dismissed from the aid and assist docket, the MHDDA should consult with forensic diversion and jail mental health regarding a discharge plan designed to meet the needs of the defendant and the community.

3.05 Assignment of Homicide

Homicide cases are assigned at the time the homicide investigation begins by a CDDA, or if the case is a , by the SDDA in Unit C in charge of vehicular homicide prosecution. Usually, the DDA assigned will go to the homicide scene and attend the autopsy post mortem examination in the course of working with the investigating police agency. The District Attorney will personally review and approve all plea negotiations in homicide cases.

3.06 Felony Charging

A. Preliminary Hearing – February 22, 2018

Article VII (Amended), S ection 5, of the Oregon Constitution provides three separate procedures for charging defendants in circuit c ourt. Defendants may be charged by indictment by the grand jury, by an information of the district attorney after a preliminary hearing, or by an information of the district attorney with a knowing and voluntary waiver of either of those two procedures by the defendant.

A preliminary hearing is an abbreviated court trial to determine whether there is that a crime has been committed and that the defendant committed it. The Oregon Rules of Evidence apply to preliminary hearings. The defendant must be present, is permitted to make an unsworn statement, may present evidence and has an opportunity to cross-examine each witness. Each party is permitted five

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witnesses, although application for more witnesses may be filed with the court. If the court finds probable cause, the defendant is “held to answer” for that charge, which means the defendant may be tried on that charge, and, pending that trial, may be committed to the custody of the or may be released by the court, either with or without release conditions. If the court does not find probable cause, then the charging instrument shall be dismissed. A DDA shall not present a case to a grand jury that has been dismissed at a preliminary hearing for lack of probable cause without the permission of a CDDA, the First Assistant to the District Attorney or the District Attorney. If the defendant fails to appear for the preliminary hearing, the DDA shall set the case before the grand jury within two weeks of the preliminary hearing.

In order to ensure that the choice between indictment and information is made according to consistent criteria, and in order to be responsibly transparent, among other considerations, DDAs shall use the following criteria for setting cases for either grand jury or a preliminary hearing. Cases will be set for a preliminary hearing, unless one or more of the following factors are present:

1. The victim is an exceptionally vulnerable victim (see definition below);

2. Based upon specific and articulable facts, the safety of a witness is in jeopardy;

3. The defendant is charged with criminal homicide, as defined by ORS 163.005; aggravated , as defined by ORS 163.095;

4. The identity of an informant would be in jeopardy of being prematurely revealed;

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5. The crime is a complex case;

6. The current case is at significant risk of affecting pending or future investigations;

7. A critical witness for the preliminary hearing is unavailable;

8. At the time of the preliminary hearing, evidence and or police reports were unavailable;

9. The victim, or the victim’s attorney, demonstrates that there is an objectively reasonable basis that the case should proceed to a grand jury investigation;

10. The grand jury is necessary as an investigatory body; or

11. There is an ongoing federal investigation or prosecution of the defendant.

All felony direct present cases will be set for grand jury, as long as the case officer has documented reasonable efforts made to apprehend the suspect.

If a case has been set for a preliminary hearing, and the defendant fails to appear, the DDA shall set the case for a grand jury investigation within two weeks of the preliminary hearing. If the case cannot be presented to a grand jury within two weeks, the case shall be set as a direct present at a time convenient for the victims and witnesses.

Some victims of crime are exceptionally vulnerable, based upon age, disability, health, or association to a defendant. Due to these exceptional vulnerabilities, such a victim may not yet be ready to appear in the presence of a defendant

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in open court. For the purpose of this policy, “exceptionally vulnerable victim” is defined as:

1. The victim is a “,” as defined by ORS 167.051(2), at the time of the hearing;

2. The victim is an “elderly person,” as defined in ORS 163.205(2)(c), at the time of the offense;

3. The crime involves more than one person with gang affiliation;

4. The offense committed against the victim is a sex crime, as defined by ORS 163A.005(5);

5. The victim has an “intellectual disability,” as defined by ORS 427.005(10), a “developmental disability,” as defined by ORS 427.005(4), or some other diagnosed condition that affects the mental state of the victim;

6. Based upon specific and articulable facts, the victim is extremely frightened or upset by being victimized and or by the presence of the defendant;

7. Based upon specific and articulable facts, the safety of the victim is in jeopardy; or

8. Due to the notoriety or heightened press coverage, the victim would be exposed to significant embarrassment or an invasion of the victim’s personal privacy.

Other cases presented to this office are complex in nature, due to the number of defendants, witnesses, victims, charges, incident dates, or other factors. These cases often require many settings in order to provide the necessary testimony related to the offenses at the early stages of a

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prosecution. For the purpose of this policy, “complex case” is defined as:

1. There are three or more charged co-defendants;

2. There are more than ten felony charges o n the charging instrument; or

3. In the judgment of the DDA, six or more witnesses are necessary to establish probable cause for all charged felony offenses;

4. Cases in which other specific and articulable factors not listed here are present. This factor will require the consultation and approval of a CDDA or the First Assistant to the District Attorney.

B. Proceedings before the grand jury

The policies in this section govern the conduct of DDAs presenting evidence before the grand jury.

A DDA fulfills two functions before the grand jury. The first is to present evidence to the grand jury upon which they will base their decision to indict the suspect or to return a “not true bill.” The second is to act as legal advisor to the grand jury.

C. Presentation of evidence

1. Except where specifically authorized by law, no evidence may be presented to the grand jury except that which would be admissible in trial under the Oregon Evidence Code.

2. All evidence presented to the grand jury must be presented under oath with the names of the witnesses

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before the grand jury listed on the indictment, if an indictment is returned.

3. It is not a function of the grand jury to determine if evidence should be suppressed for constitutional violation by investigating officers. Where it is apparent, however, that evidence was obtained in violation of a defendant’s constitutional rights and would be inadmissible at trial, a DDA must not present that evidence before the grand jury.

4. As of March 1, 2018, Oregon law requires that all cases presented before the grand jury shall be recorded. Audio recording is delegated to the grand jury by statute. DDAs shall not operate the audio recording devices. The grand jury is to record the following:

i. The case name and number; ii. The name of each witness that testifies; and iii. Every question to, and every answer of, the witness.

5. The grand jury is not required to consider defenses to charges presented to the grand jury. However, where credible evidence known to a DDA presenting a case before the grand jury would objectively refute the guilt of the defendant, the DDA must present that evidence to the grand jury.

6. A defendant who wishes to testify voluntarily before the grand jury and who waives in writing any express or implied immunity for that testimony should be allowed to testify, if practicable. A DDA however, is under no obligation to affirmatively offer an opportunity to testify to each defendant investigated before the grand jury.

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7. The compelled testimony before the grand jury of any witness who might objectively be considered a potential suspect in the crimes under investigation must be approved by the District Attorney, First Assistant to the District Attorney or CDDA of the appropriate division.

8. DDAs shall document every date that a grand jury receives evidence in a case, as those dates must be notated on the indictment. This includes any dates that a previous grand jury received evidence for the same offense, which did not result in a “true bill” or in a “no true bill.”

D. DDA as legal advisor to the grand jury

1. At the beginning of each grand jury term and prior to the presentation of any evidence, grand jurors will receive an orientation from a DDA or DDAs concerning the grand jury process. This orientation is designed to provide information about the legal procedures of the grand jury and the practical personal necessities of grand jury service. Factual information pertaining to potential cases under investigation shall not be presented in grand jury orientations.

2. As noted, no evidence will be presented to the grand jury, which would not be admissible at trial. Furthermore, as legal advisors, DDAs should prevent grand jurors from making inquiries which would produce inadmissible evidence.

3. DDAs should not preempt the fact-finding function of the grand jury. Advice to grand jurors should be limited to matters of law. DDAs should not discuss or advise grand jurors on the significance of purely factual matters, other than to instruct them on how the law applies to the facts presented.

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4. DDAs cannot advise grand jurors on how to vote. The one exception to this rule is when a DDA believes the evidence demonstrates that a suspect under investigation did not commit the offense. In this situation the DDA must recommend that the grand jury return a "not true bill.”

E. Grand Jury Records-Only Subpoenas and Procedures for Presentation of Subpoenaed Records to the Grand Jury

Every matter presented to a grand jury receives a grand jury case number. During the grand jury’s orientation, jurors are told that they are to assign a grand jury case number to each new case as it is presented. Accordingly, a grand jury number is assigned to every criminal case regardless of whether the case results in a “true” or “not true” bill, or the case is presented but later withdrawn. Similarly, a grand jury case number is assigned to every records-only case.

A records-only case begins with a DDA issuing a subpoena on behalf of the grand jury for financial, phone, medical, or other business records. A may not sign a DDA’s name to a grand jury subpoena. Similarly, a law enforcement officer may not present the subpoenaed material to the grand jury without a DDA present. Once obtained, the records must be presented to the grand jury and at that time a case number is assigned by the grand jury. Oregon law does not require that this procedure be recorded.

When the records are presented, some information should be provided to the grand jury, which reveals the nature of the investigation and its status. This explanation should provide the grand jury with sufficient information that its members can document in their notes that (1) the subpoenaed records were presented, (2) the identity of the

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DDA who authorized and or signed the subpoena, and (3) the general nature of the investigation.

Concurrent with the grand jury’s documentation of the records-only case, the DDA should direct the law enforcement officer involved in the investigation to write the grand jury case number on the subpoena and submit the original subpoena to the grand jury staff and obtain a copy of the subpoena to place in the officer’s notebook. The documentation by both the grand jury and investigating officer will provide sufficient evidence of compliance with the law should an allegation arise at some later date that the grand jury’s subpoena process was abused.

F. Protective Orders

DDAs are required by Oregon law to inform victims of the ability to seek a protective order concerning the audio recording of testimony during a grand jury proceeding. The protective order may be on behalf of the victim or a witness and must be specific to the date, time and portion of the recording. The motion must be filed within ten days after a defendant’s arraignment on an indictment. The standard of proof is substantial and compelling circumstances. The court will consider the following factors per ORS 132.270:

1. Protection of witnesses and others from physical harm, threats of harm, bribes, economic interference, reprisal and other forms of ;

2. Maintenance of secrecy regarding informants, as required for effective investigation of criminal activity;

3. Confidential information recognized under law, including the protection of confidential relationships and privileges and the contents of confidential records unrelated to a crime alleged in the indictment; and

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4. Any other relevant considerations.

3.07 Discovery of Police Reports

It is the practice of this office to disclose appropriate police reports to defense counsel at the earliest opportunity once a case is filed. DDAs must be alert to problems experienced by police agencies in providing all case police reports to the District Attorney’s office. Particularly in major cases, DDAs should utilize the following tools to ensure that all reports that should be disclosed are received by this office and disclosed to the defense:

1. Review information in the police data system regarding reports written;

2. Contact investigating officer or and request they go to their agency records section and verify they have all reports currently on file for that case in their agency;

3. Meet in person with the investigating officer or detective to assure that all reports have been provided;

4. Contact defense counsel and offer them the opportunity to review your case file materials to assure they have been provided to the defense. Document in your case file and in our case management system that you have done this for the defense;

3.071 Government Index

PURPOSE

It is imperative that all prosecutors strictly adhere to the provisions described in this policy. All prosecutors have a constitutional and statutory duty to disclose

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exculpatory information including potential impeachment information to the defense. As noted below, BIAS or INTEREST (OEC 609-1) of a witness is recognized impeachment evidence. This includes racism, racial bias, and hatred based on a person’s perception of another’s national origin, sexual orientation, color or other recognized class. Prosecutors who believe that a government witness is racially biased, or that a member of law enforcement’s conduct toward an individual was inappropriately motivated, in part or in whole, by that individual’s race, gender, sexual orientation, or any other protected class under state or federal law, shall make a report to their SDDA or CDDA promptly for appropriate action in compliance with this policy.

In order to maintain the highest possible ethical standards and to adhere to the constitutional principles announced in Brady v. Maryland and its progeny including Giglio v. United States and Kyles v. Whitley, it is necessary for the Multnomah County District Attorney’s Office to develop and maintain policy, protocol and a uniform computerized system to ensure compliance with the rules set forth in the Criminal Code of Oregon. All Multnomah County DDAs are required to know and follow the policy, protocols and procedures described herein and the relevant law concerning obligations arising from the decision in Brady.

To ensure the fair administration of justice, prosecutors have an affirmative obligation in all cases to disclose potentially exculpatory information to a charged defendant. Compliance with the constitutional mandate set forth in Brady is also an ethical requirement for Oregon prosecutors.

ORPC 3.8(b) states:

The prosecutor in a criminal case shall:

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(b) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. This rule is identical to ABA rule ABA rule 3.8(d).

The rule in Brady requiring prosecutors to disclose exculpatory material to the defense including potential impeachment information was codified by the Oregon in 2013: “…the district attorney shall disclose to a represented defendant the following material and information within the possession or control of the district attorney: Any material or information that tends to: exculpate the defendant; negate or mitigate the defendant’s guilt or ; or impeach a person the district attorney intends to call as a witness at the trial.” ORS 135.815(1)(g) - effective date – January 1, 2014.

Certain information regarding state witnesses which may be discoverable as impeachment evidence will be maintained in the Potential Impeachment Disclosure Index (PID Index). State witnesses in the PID Index may include members of law enforcement, personnel employed by the Oregon State Police Forensic Laboratory, DHS caseworkers and members of the Oregon State Medical Examiner’s Office who are likely to testify in a Multnomah County grand jury or trial.

The PID Index acts as a centralized repository for potentially discoverable impeachment information about state witnesses in possession of the District Attorney’s Office. The goal is to allow all prosecutors in all divisions to have access to this material when needed on a case by case or institutional basis while at the same time respecting the privacy and personnel interests of the state witnesses and agencies involved. By utilizing a central computerized database, with automatic

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notification to case prosecutors, lapses in discovery obligations will be prevented that might otherwise be caused by factors such as the passage of time and reassignment of case prosecutors and investigators.

PID INDEX COMMITTEE

The decision to include or remove a state witness from the Multnomah County District Attorney’s Office PID Index is made by committee members selected by the District Attorney based on their experience or expertise with Brady related issues. The purpose of the committee is to screen relevant information received from all sources for legitimate Brady impeachment material. This committee will meet quarterly to consider any candidates for inclusion or elimination from the PID Index or to hear any appeals. The committee may meet more frequently as needed. A unanimous vote is required for any action by the committee. Committee members may consider oral, written, or other relevant evidence in reaching their decisions.

The following procedural protections are followed in each case by the PID Index Committee:

1. State witnesses will receive written notice that they are the subject of a pending review;

2. State witnesses will have the opportunity to provide materials for consideration by the PID Index Committee and to appear before the committee;

3. State witnesses who are placed in the PID Index are informed of the opportunity to submit additional information which may provide a basis for removal from the PID Index.

Findings of misconduct involving dishonesty, criminal convictions and false sworn testimony are three examples of

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areas which may lead to inclusion of a state witness on the PID Index.

There is not an exclusive list of conduct that may lead to inclusion of a state witness on the PID Index. Examples of the type of potential impeachment disclosure evidence recognized by the Oregon Evidence Code and include:

 Pending criminal prosecution,

 Convictions of crimes (OEC 609),

 Bias or interest (OEC 609-1),

 Problem alcohol and illegal drug use,

 Character (OEC 404),

 False reports,

 Contrary conflicting statements,

 Inaccurate statements or reports,

 Misconduct involving ,

 Reputation for untruthfulness.

See United States v. Bagley 473 US 667, 676 (1985).

Information that is not Brady material or potential impeachment disclosure evidence is “rumor” or “speculation.” One purpose of creating and maintaining a centralized PID Index is to eliminate rumors and speculation regarding state witnesses and to afford due process to these witnesses and a deliberate committee review and determination of whether potential impeachment disclosure information actually exists.

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NOTICE

State witnesses will be notified in advance of review by the PID Index Committee and given the opportunity to provide written or other relevant materials for consideration and the opportunity to appear before the Committee.

APPEALS PROCESS

State witnesses will be given the opportunity to file a notice of appeal within 30 days of the committee’s decision. In support of their appeal, witnesses may submit additional or new information to the committee which also will be considered during the committee’s regular meeting. Additionally, state witnesses who are included on the PID Index always have the opportunity to submit additional materials at any time if they choose to seek reconsideration. The District Attorney will review all appeals and will accept or reject the Committee’s decision on appeal.

THE PID INDEX

When the committee determines that a state witness should be included in the PID Index, the witness will be notified and their name will be flagged in CRIMES - the District Attorney’s computerized data base. Each DDA will be required to check CRIMES when adding witnesses to a case to determine whether that witness is listed in the PID Index. Entering a witness into CRIMES who is listed in the PID Index will cause an automatic notice to be sent to the case prosecutor.

No other information regarding the witness will be available in CRIMES regarding the PID Index in order to protect the privacy interests of the witness and to ensure that potentially sensitive information will only be disseminated when required by law.

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When a DDA determines that a state witness is included in the PID Index they are required to meet with the First Assistant to the District Attorney or a CDDA who will evaluate whether the DDA has a legitimate interest in gaining access to the PID Index in their particular case. If it appears that the witness is necessary to the case, a decision will be made whether to release the potential impeachment disclosure information as discovery to defense counsel. In some cases, due to the particular facts involved and the witness’s anticipated testimony, it may be determined the potential impeachment disclosure material is not discoverable. In other cases, where it is unclear whether the information is discoverable, the DDA will submit the material to the court for an in camera inspection for a judicial determination. The court, following an in camera inspection, may release all or part of the materials in the PID Index regarding a state witness to the defense upon a finding that the materials are discoverable pursuant to the rule in Brady as codified in ORS 135.815(g). In the absence of such finding, the court will seal the materials, marked as an exhibit for purposes of appeal and other review.

Release of PID Index materials to defense counsel is not a stipulation as to the admissibility of such information. In many cases it is likely the information, although required to be disclosed, will be found to be inadmissible at trial.

Inclusion on the PID Index does not mean that a state witness will never be called to testify. It is not a comment on the individual’s personal reputation or capacity to serve the public.

SOURCES OF POTENTIAL IMPEACHMENT INFORMATION

The Multnomah County District Attorney’s Office requests state witness law enforcement agencies to provide all information that could be considered exculpatory to criminal defendants. For purposes of the PID Index, state witness agencies should provide any information that a , knowing all

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of the relevant circumstances, could view as impairing the credibility of a state witness testifying in a criminal proceeding. This includes information regarding misconduct related to lack of veracity, bias, or other conduct which could be exculpatory to a criminal defendant’s case. Because this office is not an investigatory agency, it is dependent on state witness agencies to conduct investigations into allegations of misconduct and to advise this office of the results.

It is axiomatic that the prosecution must be notified by law enforcement when a police officer is arrested and charged with a crime. Law enforcement should also notify the prosecution when an officer is the subject of sustained findings of misconduct based on dishonesty or bias.

Judges who have made findings regarding state witness veracity and attorneys, both prosecutors and defense counsel, who become aware of potential impeachment material are encouraged to notify the PID Index Committee. Submissions of such material should be in the form of an order or memo.

3.075 Presiding Judge’s Order regarding discovery when defendant testifies in grand jury

3.08 Criminal History Information

According to OAR 213-004-0013(3), it is necessary that the defendant give the district attorney and the court written notice of any dispute in the criminal history summary. To allow the criminal history clerk reasonable time to produce the proper documentation to establish disputed convictions, DDAs should request two-week set-overs for in-state verification and 30 days for out-of-state verification. The file and written notice need to be forwarded immediately to the felony unit processing the case. Documentation for verification of disputed convictions will include a certified copy of conviction from the in which the conviction occurred.

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Additionally, DDAs should use discretion in ordering verification when the challenged conviction will not affect the presumptive sentence.

3.10 Sex Crime Cases – Disclosures in Treatment

Sometimes youths and adults in sex offender treatment will disclose previously undisclosed sexual offenses. The District Attorney’s Office recognizes the value of open and honest disclosure of sexual history as an important component of success in sex offender treatment. However, there is no unequivocal bar against charging a youth or adult for sexual offenses discovered through disclosure in treatment. Generally speaking, absent compelling circumstances related to public safety, a youth or adult will not be charged for newly discovered historical sexual contact which occurred with the victim who was the subject of the petition or indictment upon which the youth or adult was adjudicated. Disclosures about new victims, however, will be reported to law enforcement for investigation, and decisions about whether to prosecute those cases will be made on a case-by-case basis.

Factors to consider in deciding whether to charge include, but are not limited to, the seriousness of the conduct disclosed, recency of the conduct, the age of the offender and the victim(s) at the time of the conduct, the degree of harm to the victim(s), the number of victims, the merits of the case(s), the wishes of the victim(s) or victim’s family, the youth or adult’s progress in treatment since , and the level of risk to the community that the youth or adult currently poses. Youths and adults will be charged for any legally sufficient sexual offenses that occurred after adjudication.

3.11 Failure to Appear Policy

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The crimes of Failure to Appear in the First and Second Degree were created by the legislature as part of the Criminal Code in 1971. At that time Oregon still maintained a system of “ bondsmen” and appearance of defendants was generally enforced by the bondsmen. In 1973 the legislature enacted Article 8 of the Code, which eliminated the bail bonds system and created a modern pretrial release statute. See, Snouffer, An Article of Faith Abolishes Bail in Oregon, 53 Or L.R. 273 (1974). That enactment created a presumption in favor of release and provided that only 10% of bail need be posted.

ORS 162.195 and ORS 162.205 require the state to prove that the defendant’s failure to appear was knowingly. To establish the requisite mental state, it is sometimes necessary to subpoena the defendant’s lawyer to appear before the grand jury or at a preliminary hearing. The attorney-client privilege does not extend to an attorney’s advice to this client regarding the date of trial. U.S. v. Hall, 346 F2d 875 (2nd Cir 1965) cert. den. 382 U.S. 910; U.S. v. Bourassa, 411 F2d 69 (10th Cir 1969), cert. den. 396 U.S. 915. In this jurisdiction, the Chief Criminal Judge of the circuit court held an attorney in contempt for failure to disclose to the grand jury their advice to a client regarding the date of trial. In re Grand Jury Proceeding State ex rel. Schrunk v. Jones, (July, 1981).

At this time pursuit of Failure to Appear charges are relatively rare however when pursued, to avoid inconvenience to the defense bar in general and where evidence of the defendant’s intent is otherwise reasonably available, it is the policy of this office not to subpoena defense attorneys to grand jury proceedings, preliminary hearings or trials whenever possible. In determining the amount of proof available to establish the knowing mental state DDAs should first obtain any relevant FTRs, release agreements, and reports from PTRS. However, where evidence of the defendant’s intent (i.e., knowledge of the trial date) is not readily available, attorney testimony

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before the grand jury or trial is necessary and appropriate. In such cases, the procedures for subpoenaing an attorney (Section 1.20) should be followed.

3.20 Issuing Cases for Other Trial Sections

No misdemeanor DDA, other than those assigned to a felony unit, should issue a case for a felony unit without receiving prior approval from a member of that felony unit. Any misdemeanor DDA seeking such approval should contact a SDDA in the affected felony unit. The name of the DDA approving the charging decision should be noted in the file and in the electronic case tracking system.

Any felony DDA screening a case for issuing who decides another felony unit should handle the case must contact the SDDA of that other unit to determine how to proceed. Based on the needs of the unit at that time, if the SDDA agrees to the transfer, the SDDA may elect to assume responsibility for the issuance of the case immediately. Alternatively, the SDDA may direct the screening DDA to issue the case on that unit’s behalf and have the file transferred after issuing.

Any felony DDA who, after screening a case, determines that only misdemeanor charges should be issued, will be responsible for issuing all misdemeanors arising out of the incident including those involving associated defendants committing only misdemeanors. If follow-up investigation is required for a misdemeanor, the case will be referred to the appropriate police agency. After the follow-up is completed, the misdemeanor will be presented to the Misdemeanor Intake section for review.

Any DDA who presents a felony case to a grand jury but determines after presentation of evidence that only misdemeanor charges are supported shall nonetheless proceed to have the grand jury vote on any remaining

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misdemeanor(s). Should the grand jury choose to indict the misdemeanor charge(s), the grand jury DDA remains responsible for completing all grand jury paperwork just as the DDA would on a felony case.

The DDA presenting the case to the grand jury will make appropriate log notes and CRIMES notes, detailing why the case was reduced from the original felony charges to the resultant misdemeanor charge(s). Included in the notes will also be the DDA’s contact information. This policy recognizes that where recordings of witness testimony in grand jury exist, they should be provided to criminal defense counsel in discovery. However, the statutes governing grand jury recordings do not permit those recordings to be provided where a case is withdrawn and subsequently charged by an Information of the District Attorney.

Misdemeanors resulting in indictments will be drafted, and grand jury recordings prepared, by grand jury staff just as on felony cases, after which the case will be brought to resolution by the Misdemeanor Trial Unit.

3.21 Reissuance of Charges after Dismissal

ORS 136.130 provides that Class A misdemeanors and felonies dismissed without prejudice, pursuant to ORS 136.120, may be re-issued. All cases dismissed pursuant to ORS 136.120 shall be reviewed for re-issuance. The DDA shall apply the standards set out in this policy manual at Section 3.04 (Screening of Criminal Cases) and Section 3.09 (The Charging Decision). Any deviation from this procedure requires approval of the CDDA in charge of the division.

3.22 Office actions regarding foreign citizens

This office will encounter criminal , victims and witnesses who are citizens of foreign countries. When this

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happens, our office has certain obligations under state, federal, and .

International law requires that arrested criminal defendants be notified of their right to contact the consulate of their native country, and to have local authorities assist them in notifying that consulate if they so desire. Certain bilateral treaties also require the mandatory notification of consulates for 57 countries. As of 2018 those countries are:

Albania Hungary Tajikistan Algeria Jamaica Tanzania Antigua Kazakhstan Tonga and Kiribati Trinidad Barbuda Kuwait and Tobago Armenia Kyrgyzstan Tunisia Azerbaijan Malaysia Turkmenistan Bahamas Malta Tuvalu Barbados Mauritius Ukraine Belarus Moldova United Belize Mongolia Kingdom Brunei Nigeria Uzbekistan Bulgaria Philippines Zambia China Poland Zimbabwe Costa Rica Romania Cyprus Russia Czech Saint Kitts and Republic Nevis Dominica Saint Lucia Fiji Saint Vincent Gambia and the Georgia Grenadines Ghana Seychelles Grenada Sierra Leone Guyana Slovakia

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An up-to-date list can be found on the State Department’s webpage.

ORS 181A.820 prevents state law enforcement officials from notifying federal immigration officials of the suspected immigration status of individuals whose only crimes involve their immigration status.

The Multnomah County District Attorney's Office does not notify or alert immigration officials or agencies regarding individuals (witnesses, victims, or defendants) with whom we come into contact. This applies to our work in the adult and juvenile justice systems, as well as our work seeking to enforce child support obligations. However, members of this office may not attempt to lie to or mislead federal agents or otherwise interfere with their duties. Such actions could result in criminal liability.

If communication with ICE is deemed essential to the prosecution of one of this office’s criminal cases, such communication may only happen through this office’s designated single point of contact. This means that, if you are not the designated point of contact, you are not permitted to have any communication with ICE in your capacity as an employee of this office under any circumstances. If you are unsure who the designated point of contact is, please contact your supervisor for direction.

If you receive a request for information from ICE, the only response you may give is to refer the caller to the DDA designated as the sole point of contact. That DDA will ensure that our response, if any, fully complies with the spirit and letter of our policy set forth above as well as any applicable state or federal law.

3.30 Guidelines for Prosecution of RICO

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Utilization of the RICO statutes ORS 166.715, et seq., requires careful and well-reasoned application. Despite the broad statutory language of RICO, it shall be the policy of the District Attorney’s Office that the RICO statute be selectively and uniformly used to accomplish its intended goal to combat and deter organized crime. It is the purpose of these guidelines to make it clear that not every case in which technically the elements of RICO exist will result in the approval of the RICO charge. Further, it is not the policy of the Multnomah County District Attorney’s Office to pursue prosecutions under RICO, which are far afield from the legislative purpose of the statute, which is to deal with multiple criminal activities that resulted from formal or informal organizations that traditional criminal prohibitions would fail to adequately cover.

The Equal Privileges and Immunities Clause of the Oregon Constitution prohibits different kinds of prosecution for defendants in similarly situated positions. These guidelines have been formulated to avoid violation of that section of the Oregon Constitution.

A. Authorization of Prosecution

DDAs should keep in mind that RICO charges typically involve lengthy investigations, have the potential to incur high prosecution costs, and bring severe penalties. RICO charges should be filed only after careful consideration.

Before a RICO prosecution is commenced, the administration in the District Attorney’s Office and the administration in the lead police agency must authorize the investigation and prosecution. Often these investigations take months or years and involve a considerable commitment of staff time and resources. The District Attorney’s authorization is required prior to any RICO-specific investigation or prosecutions.

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Any DDA interested in commencing such a case should first discuss the appropriateness of a RICO investigation or prosecution with their SDDA and CDDA. Once they approve, the DDA shall present to the First Assistant to the District Attorney a memorandum outlining the reasons why a RICO prosecution should be considered and the name(s) of the command officer(s) in the law enforcement agency who authorized the investigation. Where appropriate and relevant, the memorandum should include the following information:

1. Identification of the proposed defendant(s), and the other major members of the criminal enterprise, along with their criminal histories;

2. A list of the preliminarily proposed charges (Chart format is acceptable);

3. A summary of the case including evidentiary basis for each act of racketeering. This summary should only include anticipated admissible evidence;

4. A description of the investigative resources already expended;

5. Prosecution challenges, special problems, such as case weaknesses, or other considerations, such as Bruton, marital privilege, or poor quality recordings;

6. Anticipated defenses, such as a motion to controvert search warrant or wiretap;

7. Description of what advantage RICO brings to the investigation as compared to other charges;

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8. Description of possible forfeitures, how they are connected to the criminal enterprise and defendant(s), and any third parties who may have claims;

9. Additionally, the memo should address the appropriate subsections from the Section 3.31, Consideration Prior to Seeking Indictment.

The First Assistant to the District Attorney will then confer with the District Attorney.

Once the RICO prosecution has been authorized by the District Attorney, it is the duty of the DDA to keep the CDDA in charge of their division, the First Assistant to the District Attorney or designee of the District Attorney and the District Attorney apprised of the current status of the case.

The factors listed in Policy Manual section 3.31 are to be considered before bringing a RICO prosecution. They are not intended to be exclusive.

B. Plea Negotiations

In cases where RICO has been charged, any plea agreement between the defendant and the state should include a plea to RICO. The DDA will confer with the District Attorney prior to making any pre-trial offer. The District Attorney will personally approve all plea negotiations in RICO cases.

3.31 Consideration Prior to Seeking Indictment – Generally

All-encompassing examples are difficult, if not impossible, to formulate when discussing RICO; the following examples are offered by way of illustration only and are not intended to be exclusive:

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A. The feasibility of prosecuting the defendant for the underlying crimes, taking into account evidentiary considerations

Occasionally a business will commit a large number of on certain vulnerable victims in the community. The business itself looks legitimate and in each case the victimizations may look like a civil matter. It is not until the criminal episodes are joined together that the larger pattern of illegal activity becomes clear.

B. Applicability of other remedies

In these cases, traditional methods such as civil lawsuits, injunctions, and restraining orders have been tried but have failed to alleviate the problem.

C. Prior notice of provided to the defendant

In these cases, the defendant has been previously informed, either by state actors in their official capacity or victims’ complaints directly to the defendant or the organization, that there is harmful or illegal behavior occurring and the defendant did not adequately address it, and the concerning conduct continued. This includes circumstances where the harmful activity, if reasonably and appropriately investigated by the defendant (that a legitimate enterprise would conduct after receiving similar notice), would reveal the underlying criminal activity, which the defendant failed to correct.

D. Whether the predicate crimes provide sufficient punishment for defendants’ activities

Sometimes criminal activity, i.e. Class C felonies, will be perpetrated on a grand scale. In those cases, the total sentence that the defendant would receive under the matrix

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would be out of proportion and not reflect the seriousness of the offense. In those situations, the charging documents do not adequately reflect the nature and extent of the criminal activity involved and the appropriate sentence. Therefore, the RICO prosecution might be justified.

E. The nature of defendant’s conduct

Sometimes the underlying charges are as serious as RICO. For example, if a defendant were involved in a series of Class A felonies that can be proved independently without reference to each other and are patently criminal in and of themselves, a racketeering prosecution would not be necessary. Conversely, a sophisticated and complex scheme to commit the predicate crimes would justify a RICO prosecution. For example, when a diversified course of criminal conduct involving division of labor and functional responsibilities exists, for which other statutes are inadequate, charging a RICO conspiracy may be appropriate.

F. Evidence Admissibility

Often an essential portion of the evidence of the criminal conduct in a pattern of racketeering activity can be shown to be admissible only under RICO, and not under other evidentiary theories (such as prior similar acts, continuing crime or conspiracy). A RICO count may be appropriate.

G. The number of victims

With the exception of drug and vice related crimes, generally there should be at least five victims unless the enterprise has targeted vulnerable victims, in which case the number may be less. There may also be cases with fewer victims if there are substantial losses to those persons.

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H. The relationship of the defendant to the enterprise

The defendant should be associated with a business or be associated with a group of people engaged in ongoing enterprise. Generally, we should not prosecute under RICO, an individual who is engaged in a series of crimes unless these crimes have some association with an enterprise that is larger than the particular individual.

I. The history of the activity

If an organization or enterprise has been operating for a substantial period or is extremely complex, or is using government-issued licenses or is a member of a profession or occupation that is licensed by a state regulatory agency to perpetuate the predicate crimes, such factors weigh in favor of RICO prosecution.

J. The economic gain of the enterprise or organization

If the criminal enterprise has obtained substantial proceeds from the criminal activity, then the RICO investigation may be warranted both from the criminal and civil standpoint.

When a substantial prosecution interest will be served by forfeiting an individual's interest in or source of influence over the enterprise which the individual has acquired, maintained, operated or conducted via racketeering, RICO may be appropriate.

K. The chances of successful prosecution

The RICO prosecution should never be instituted with the idea of using the RICO as a bargaining tool. Before the charge is brought there must be good likelihood that the state will be successful in its prosecution.

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L. Number of predicate offenses

The RICO statute requires that there be at least two predicate offenses. Unless there are compelling reasons, seldom is a prosecution justified if only two offenses can be proven. Generally, there should be evidence of at least five offenses at different times within the statutory period. At least two of the predicate offenses should be felonies for at least one of the defendants.

M. Multiple

If the criminal enterprise has conducted criminal activity, such as the predicates, in multiple jurisdictions which would otherwise have to be prosecuted separately, then the RICO investigation may be warranted.

N. Drug and Vice Cases

There must be a showing that the conduct is substantial or has the potential for causing considerable harm to the community.

O. Number of defendants

The law requires that at least two people participate in the enterprise.

P. Special Cases

In those cases that fall outside the general guidelines, the memorandum described in Section 3.30 shall be prepared and presented to the District Attorney demonstrating the need for RICO prosecution. The District Attorney will then weigh the legislative purpose for the RICO statute, the protection of the community, and the reasons why a RICO prosecution should be brought. If the District Attorney

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concludes that the legislative intent is not violated, that the public is best protected, and that there are compelling reasons, the District Attorney will then authorize the bringing of the RICO charge.

Q. Recovery of Property

It shall be the policy of the District Attorney’s Office that if assets are seized and forfeited, any recovery should first go to repay victims. Any remaining portions that are allowed by statute shall then be distributed to this office and law enforcement agencies for costs.

3.40 Guidelines for Prosecution of Environmental Crimes

A. Background and Purpose

ORS 468.920 et seq. establishes severe penalties for certain violations of environmental laws. Because environmental laws are by their very nature broad, the legislature also required that the District Attorney of each county adopt written guidelines for the filing of felony criminal charges. The legislature also set out a list of criteria that the District Attorney must consider before bringing a charge. The law requires that the District Attorney must personally certify that they have reviewed the case and that the case meets the requirements of the guidelines. Any DDA who seeks to bring a felony prosecution for environmental crimes shall be familiar with the guidelines set out in ORS 268.961 and those set out in this policy manual.

The policy of the District Attorney is that the environmental crimes statute will be used to accomplish the intended goals of the legislature. It is the purpose of these guidelines to make clear that while not every technical violation will be criminally pursued, the most serious conduct will be prosecuted.

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B. General Principles

Any conduct that is in violation of the is also a violation of a regulatory statute and or administrative rule. For many violations, administrative remedies and civil penalties are adequate responses. For some conduct the bringing of a misdemeanor charge may be appropriate. Bringing felony charges should be reserved for the most serious conduct.

C. Applying the Guidelines

The decision to prosecute a particular act under environmental laws is a matter of prosecutorial discretion determined by the specific circumstances of each case.

No single factor listed below is controlling, and the weight accorded each factor will vary from case to case. The guidelines are intended to promote consistency in the prosecution of environmental crimes and to ensure compliance with the legislative goals. For purposes of the guidelines the term “person” includes corporations.

D. Specific Factors

1. The complexity and the clarity of the statute or violated

If the regulation is very complex and difficult to understand, the likelihood increases that a person could violate a statute or regulation despite making a good effort to comply with the law. Such circumstances will normally diminish the for prosecution.

2. The actions and the mental state of the actor

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Was the violation inadvertent, or was it so egregious that, despite the complexity of the statute or regulation, the person should have known that the person’s action was unlawful or the person’s conduct was nonetheless reckless as to the consequences for human health or the environment?

Did the actor know that their actions were in violation of the law and consciously disregarded the law?

3. The extent to which the person was or should have been aware of the requirement violated

Does the person engage in a heavily regulated occupation or industry, so that knowledge of environmental requirements is an elementary part of doing business?

Has the person made a good faith effort to determine whether the conduct violated the law?

Is the general practice of the occupation or industry to hire or consult with environmental consultants or for regulatory agencies to offer technical assistance or publish guidance?

Has the person had contact with the regulatory or enforcement agency?

Has the agency clearly defined the conduct, which would violate the law or regulation?

Did the person know that the conduct was a violation?

4. The existence and effectiveness of a person’s program to promote compliance with environmental regulations

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The existence of a bona fide effective compliance program may weigh against the need for criminal prosecution. Where such a program is in place, it suggests that the violation may be isolated and inadvertent, and that the person has means in place to prevent or detect future violations before they result in substantial harm to human beings or the environment. These inferences, however, will not be true in every case; the existence of an effective compliance program will not negate prosecution if there is evidence that shows that the person knowingly violated the law or caused substantial harm

5. The magnitude and probability of the actual or potential harm to humans or to the environment

Protection of public health and safety and the protection of the environment is the stated goal of the environmental statutes, and is a central consideration for the District Attorney.

Considerations here will typically include the nature of the waste, its toxicity, and the known or suspected health risks associated with it.

The greater the probability and magnitude of harm, the greater the need for criminal sanctions. In considering the magnitude of harm, the District Attorney will consider whether the harm is long lasting or can be remedied promptly. If the person’s conduct created a great risk of substantial harm, the fact that little or no harm actually occurred may be irrelevant.

6. The need for public sanctions to protect human health and the environment or to deter others from committing similar violations

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A person’s persistent and willful violations or a person’s flagrant violation that causes a great risk of substantial harm to human beings or the environment will generally justify prosecution. This action is necessary to protect human health and the environment from the person’s criminal activity.

If the violation applies to many others, publicity concerning its enforcement may also deter others from similar activities. In addition, the prosecution may create general deterrence against violations of other environmental laws in addition to the specific statute or regulation that was violated in the particular case.

7. The person’s history or repeated violations of environmental laws after having been given notice of those violations

Repeated violations after notice shows both intentional and knowing criminal conduct, which makes criminal sanctions particularly appropriate. The repeated violations also demonstrate the fact that prior civil/administrative remedies were inadequate to deter misconduct.

8. The person’s false statements, concealment of misconduct or tampering with monitoring or pollution control equipment

False statements that are knowingly made, concealment and tampering imply intentional misconduct, making criminal sanctions more appropriate. In addition, they undermine the integrity of the regulatory system, which relies upon reporting. If an honest is made, generally civil and administrative remedies will provide adequate sanctions.

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9. The person’s cooperation with regulatory authorities, including voluntary disclosure and prompt subsequent efforts to comply with applicable regulations and to remedy harm caused by the violations

Generally, bona fide voluntary disclosure and prompt efforts to remove violations and remedy harm will not result in criminal prosecution.

10. The likelihood of a successful

The law provides for an affirmative defense for a defendant who (1) did not cause or create the condition or occurrence constituting the offense, (2) reported the violation promptly to the appropriate regulatory agency, and (3) took reasonable steps to correct the violation. Similar conditions apply to the affirmative defenses of “upset” and “bypass.” If an affirmative defense clearly applies, criminal prosecution is not appropriate.

11. The appropriate regulatory agency’s current and past policy and practice regarding the enforcement of the applicable

If the regulatory agency does not enforce a regulation, rule or law, criminal prosecution under the regulation, rule or law would generally be inappropriate.

If the regulatory agency having jurisdiction has determined that a violation is not serious enough to merit civil or administrative enforcement, criminal sanctions would usually be disproportionate to the severity of the violation and, therefore, prosecution would be inappropriate.

Absent extraordinary circumstances, the District Attorney’s office will communicate with the regulatory

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agency and will consider that agency’s recommendation regarding criminal prosecution. If the regulatory agency does not recommend or concur with prosecution, unless special circumstances exist, prosecution may not be appropriate.

12. The person’s good faith effort to comply with the law to the extent practicable

Generally, criminal prosecution is not justified when a person has made a good faith effort to comply with the law and has made a bona fide effort to work with the regulatory agency. The determination of what constitutes good faith effort to comply and bona fide effort rests with the District Attorney.

13. The person’s underlying conduct that lead to the violation was criminal in nature

If the conduct that lead to the violation was criminal, then prosecution is generally appropriate; e.g., manufacturing of controlled substances (methamphetamine labs), dumping hazardous waste containers on other people’s property.

14. The chances of successful prosecution

Before an environmental crime is brought there must be a strong likelihood that the state will be successful in its prosecution.

E. Procedures

Absent extraordinary circumstances, before a felony environmental is brought the investigating law enforcement agency and the regulatory agency shall be consulted. Any DDA interested in bringing such a charge

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should first contact the First Assistant to the District Attorney, and provide a memorandum outlining the need for prosecution. The memorandum shall include: (1) a case summary and evaluation, and (2) an analysis of the factors listed above. The District Attorney will then be consulted. If the District Attorney concludes that the legislative purpose, as set out in the statutory criteria, is met and that it is in the public interest to prosecute, the District Attorney will then prepare a certification approving prosecution.

Once an environmental charge has been authorized by the District Attorney, it is the duty of the DDA to keep the CDDA for circuit court, the First Assistant to the District Attorney and the District Attorney apprised of the current status of the case.

3.50 Evidence Policy

The following policies have been adopted to restore stolen property to the owner as early as possible without jeopardizing the criminal case.

A. The District Attorney’s Office does not require a retail store to retain stolen property pending the resolution of a misdemeanor charge. It will be the store’s option whether to return the property to stock or retain it as evidence. Generally, it would be better to actually have the object of the available at the time of trial. This might be even more important depending on the facts of the individual case, e.g. a claim that the property had been purchased elsewhere, or a claim that it is physically impossible to conceal the item as described by the store security. It would be up to the discretion of the store personnel under the circumstances of any given case to exercise their good common sense in deciding which property to retain. In some cases failure to retain the property could result in the

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dismissal of the case, the granting of a judgment of acquittal, or a of not guilty.

B. In those cases where the property is not retained, the store would take two photographs of the defendant with the stolen property. Additionally, if the property were concealed upon the defendant or within another container such as a purse or bag, the property would be photographed inside that container. Photographs should also be taken of any unique physical characteristic of the object that may become an issue at the time of trial. All photographs would have to be signed and dated by the security officer taking them. One photograph showing the defendant and the property would be submitted to Intake with the reports at the time of issuing. This would allow ruling out claims of misidentification at the arraignment stage.

C. This same policy will apply to felony cases unless the property involved is of such unique nature that a reasonable identical piece of property could not be secured if needed.

D. When a DDA is in trial, the DDA may temporarily secure the evidence during the trial in the office’s property room. An investigator must be contacted to secure the property. It is the DDA’s responsibility to have the property taken out of the property room within 30 days following the conclusion of the trial. Any property left beyond the 30 days will be returned to the police property room.

3.55 Material Witness Warrant Policy

ORS 136.608-136.614 authorize the arrest and detention of certain witnesses when necessary to secure their testimony at trial. This office recognizes the substantial burden this practice can place on people who are not themselves charged with a crime, and it is our policy that material witness warrants shall be used sparingly. Any DDA who wants to ask the court to issue

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a material witness warrant must first obtain the approval of a CDDA or the First Assistant to the District Attorney. In considering such a request the following factors shall be weighed:

1. The severity of the involved charges,

2. The importance of the witness to the prosecution of the case,

3. The personal circumstances of the witness, and

4. The risk to public safety if the case cannot proceed due to the absence of the witness.

Whenever a material witness warrant is issued at this office’s request, the case DDA will closely monitor the case and ensure that they are notified by law enforcement when the witness is arrested. Upon the arrest of a witness, the case DDA will promptly brief the SDDA of the Pre Trial unit on the circumstances of the case in advance of the witness’ initial appearance in JC 3, which will be the next court day after the witness’ arrest.

At the witness’ appearance in JC 3, the JC 3 DDA will request that counsel be appointed for the witness and that a status hearing be set on the felony call docket within a week. We will also request that Close Street Supervision Evaluation Only be ordered to determine if the witness may be supervised out of custody pending the hearing at which the witness’ testimony is requested. At the status hearing on the felony call docket, we will request that the court set further regular status hearings to review the custody status of any witness who is not appropriate for release on supervision.

If a material witness is held in custody longer than 10 days, the case DDA will send an e-mail to the CDDA of the division,

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the First Assistant to the District Attorney, and the District Attorney weekly with an update regarding the status of the case.

3.56 Jail Call Protocol

The Multnomah County Sheriff's Office and Securus Technologies® have safeguards in place to prevent the recording and release of confidential attorney-client communications. It is incumbent on this office, however, to take additional steps to ensure the integrity of such privileged communications. Additionally, compliance with discovery obligations in this area is recognized and necessary. The following procedures should be followed by members of this office when seeking to utilize recorded jail calls or recorded video visits.

I. SCREENING

All calls or video visits that are monitored must be subsequently downloaded and disclosed to the defense. This is to ensure compliance with the applicable constitutional, statutory and case law-imposed rules of discovery and the principles established in Brady v. Maryland. The initial screening of calls and video visits is an investigative task that should be performed by the case detective or a district attorney investigator or designee. Generally, this function should not be performed by DDAs. Adherence to this procedure will prevent case prosecutors from potential exposure to privileged communications in the unlikely event the safeguards in place have failed. The investigator will check the "all calls" category on the Securus search screen on a requested case and then "completed calls" to determine which phone numbers are not attorney calls or otherwise privileged calls. Calls which are determined to be non-confidential will then be downloaded.

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An exception to this procedure may exist when a DDA knows a particular number is non-privileged. With approval of the DDA’s assigned SDDA, such calls may be monitored by persons other than the case detective or district attorney investigator or designee.

II. RELEASE OF CALLS

The state's discovery obligations compel timely release of recorded jail calls and video visits. At the same time, recorded jail calls and video visits should normally not be provided to the defense unless and until the call or visit has been reviewed in its entirety by the case detective, district attorney investigator or designee or case DDA. Any exceptions to this rule must be sought and approved by a CDDA or the DDA’s assigned SDDA. The case detective, district attorney investigator or designee or DDA would nonetheless be expected to review such calls or video visits prior to trial.

III. REDUCTION OF USE

Review of recorded jail calls and video visits can be time consuming and of limited utility in many cases. Generally, jail call and video visit monitoring should be conducted only when the case DDA has a specific belief that information useful to case prosecution; e.g., where defendant has not made admissions or evidence of new crimes will be produced; e.g., tampering or . Generally, a priority is placed on homicide and other Ballot Measure 11 cases and high-profile matters. Jail call and video visit requests must be approved by the requestor's SDDA.

3.57 Eyewitness Identification

PURPOSE

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The purpose of this policy is to provide procedures for obtaining objective, accurate results when preparing and conducting photo line-ups and in-person show-ups.

POLICY

It is the policy of this agency that eyewitness identifications be conducted in a manner most likely to assess witnesses’ true and reliable recollections and in compliance with state and federal statutory and constitutional requirements. This policy must be implemented within the specific circumstances and demands of any investigation. The investigator must exercise informed judgment when implementing and, as reasonably necessary, varying from, this policy. Reasons for varying substantially from this policy must be documented and include, but are not limited to:

 Public safety

 Victim and witness needs and safety

 Unique and unforeseeable circumstances of a particular investigation, witness or suspect

 The special needs of particular victims or witnesses, including physical, mental and emotional limitations

DEFINITIONS

Blind Presentation – The presenter does not know who the suspect is; this is also known as double-blind presentation.

Blinded Presentation – The equivalent of a blind presentation; used when the presenter knows who the suspect is. To be conducted so that the presenter does not know which photograph is being presented to the witness.

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Confidence Statement – A witness’s statement about the pick the witness made and of their confidence in that pick; taken immediately after a pick has been made.

Photo Lineup – A presentation of photographs of persons to a witness.

Presenter – The officer presenting a lineup.

Show-up – A presentation to a witness of a live person in the field that is close in time and proximity to the incident under investigation.

Sequential – A presentation of photographs in a photo line-up one at a time, retrieving one photo before presenting another.

Simultaneous - A presentation at the same time of photographs in a photo line-up arrayed together, either manually constructed or computer generated.

DOCUMENTATION

A. Instructions to witnesses shall be read from the Eyewitness Identification form. This form will also be used to document the witness’ identification statements.

B. In addition to documentation in the incident report(s) and on Eyewitness Identification forms, when it is reasonable, practical and consistent with the best interests of the investigation, presenters should consider audio-recording the presentation. Unless the presentation is conducted in a police facility, however, the witness must be specifically informed of the recordation and agree to it, as required by law. If not in a police facility, and the witness does not agree, then the presentation should not be recorded.

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C. Lineups, forms, and recordings shall be treated as evidence, with copies of the lineups, forms and any recordings included in the case file, whether or not the witnesses made identifications.

D. If a photo lineup is developed electronically, the lineup shall be printed for documentation.

E. See also Post-Presentation Interview and Documentation.

PHOTO LINEUPS

When a photo lineup is used for suspect identification, a blind or blinded sequential presentation should be used whenever reasonably possible; consequently, the procedures that appear below are designed primarily for blind or blinded sequential presentations. If another photo lineup method is used— including a simultaneous presentation or a sequential presentation that is not blind or blinded—the reason(s) for using that method should be documented.

DEVELOPMENT OF A PHOTO LINEUP

A. Officers should obtain a thorough suspect description from each witness before developing a photo lineup. (Note that differing suspect descriptions among the witnesses may require the presentation of different photo lineups to different witnesses.) See “information to gather before any identification process” at the end of this document.

B. A photo lineup shall consist of no fewer than six photographs, including one of the suspect.

C. All photos should be similarly sized and should be of similar- appearing individuals. None should be obviously different from the others.

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1. Filler photographs (not of a suspect) should generally match, to the extent reasonably possible, the particular witness’ description of the suspect. Because filler photographs and witness descriptions of the suspect may vary from each other to some degree, it is permissible for filler photographs to differ from each other--and from the suspect’s photo or description-- so long as the differences do not make the suspect’s photo or description disproportionately stand out from the others.

2. When there is a limited or insufficient suspect description, or when the witness’ description of the suspect differs significantly from the available photograph(s) of the suspect, the filler photographs should resemble the suspect photograph, not the description.

D. The photos shall be numbered and in individual folders or envelopes, or attached to opaque backing such as light cardboard or equivalent. The number on the photo should be placed so that the presenter cannot see it when presenting in a “blinded presentation.” (See definition below).

E. When conducting a single lineup for multiple witnesses, the photographs should be presented to each witness in a different sequence. Another alternative is a random or shuffled presentation for each witness. When a random or shuffled presentation is used, the order of presentation should be recorded afterwards.

PRESENTATION OF PHOTO LINEUP

A. Instructions to Witnesses

Prior to a presentation, the presenter shall read the witness instructions from the Eyewitness Identification form,

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ensuring and documenting that the witness understands the instructions.

B. Blind Presentation

1. In a blind presentation, the identity of the suspect is not known to the presenter.

2. The presenter shall present the photos to the witness sequentially, with one photo replacing another so that no two are presented at the same time. After each photo is presented, the presenter will ask: “Is this the person you saw?” or an equivalent question before presenting the next photo, and the answer will be documented.

3. The presenter shall present each photo to the witness, even if the witness identifies a photo as the suspect. During the presentation, the investigator will keep all photos out of the witness’ sight so the witness does not know how many photos the witness will be asked to view, and the witness will not be told this information.

4. If, after the first presentation, the witness asks to see one or more photos again, the presenter may conduct the same presentation a second time but must present all of the photos using the same method and order of presentation. If the witness gives a different answer as to a particular photo(s), then the witness will be asked to explain why. If the witness identifies a suspect during a second presentation, then that fact will be documented as well as the reason for making a second presentation.

5. In addition to documentation in the incident report(s) and on Eyewitness Identification forms, when it is reasonable, practical and consistent with the best interests of the investigation, presenters should consider audio- the presentation. Unless the presentation is conducted in a

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police facility, however, the witness must be specifically informed of the recordation and agree to it, as required by law. If not in a police facility, and the witness does not agree, then the presentation should not be recorded.

C. Blinded Presentation - See also the steps for presenting photos under “Blind Presentation,” above. These steps should be followed as modified below.

If the presenter knows who the suspect is, an extra measure of care should be taken to prevent the presenter from knowing which photo is being shown to the witness as the process occurs.

1. One option is for the photos to be placed in identical folders or envelopes, with the folders or envelopes numbered inside and shuffled. Each photo shall then be presented so that only the witness can see the photo; the presenter is thus “blinded” to the process and it cannot, therefore, be suggestive.

2. A second option for “blinded” presentation is for the photos to be adhered to equally-sized and shaped pieces of opaque material (such as light cardboard) to create “cards,” with each card containing one photograph. The cards shall be numbered on front, so that the presenter cannot see the number. These cards will then be shuffled, face-down, and presented so that only the witness can see the photo.

3. Equivalent methods to the first two may be adopted and used, so long as the presenter is blinded to the process and the process is documented.

4. When a blinded presentation is used, the order of presentation shall be recorded afterward, using the number on the card or folder. If an alternative

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presentation method is used, then the order must also be recorded.

D. Post-Presentation Interview and Documentation

1. Generally, after the presentation of a photo lineup, the presenter should avoid any words or actions that might identify the suspect or hinder further investigation. The investigator should not tell the witness who the suspect is or whether the witness has picked the person whom the investigator believes committed the crime. There will be situations, however, when it is appropriate and necessary within the investigation to identify the suspect to the witness to further the investigation or address public safety needs. If so, then the situation and reasons must be clearly documented.

2. If the witness picks a photo, the presenter shall ask the witness to describe why the photo was selected, and may ask the witness to describe the confidence he or she has in the selection. The presenter should obtain a description of reasons for the witness’ selection in the witness’ own words, not just a scaled assessment (e.g., “90% sure” or “six out of ten”). In fact, unless the witness needs to use such a scale, it is best to avoid them. The witness’ responses to questions about their reasons for their selection and their confidence—commonly referred to together as a “confidence statement”—shall be documented on the Eyewitness Identification form (attached) and in the investigator’s report.

3. As noted, it is important to ask the witness WHY the witness made the selection and why s/he has the level of confidence s/he has described; i.e. why the witness picked the person. To do this, it is important to ask the witness the questions regarding the “suspect description,” “context,” and “witness factors” found at the end of this

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document, or their equivalent, and to document the answers.

4. The presenter shall ask the witness to affirm the confidence statement on the Eyewitness Identification form by reviewing the statement summary and, if accurate, signing the form.

SHOW-UPS

Show-ups are valuable tools for quickly identifying or excluding suspects shortly after an incident. Show-ups may properly be used up to several hours after an incident. Beyond three hours, photo line-ups should be strongly considered as an alternative to a show-up, but even after three hours there may be legitimate investigative or public safety reasons for using a show-up. Further, if a show-up rather than a photo lineup is used more than three hours after the crime, then it will be important to document the reasons for this.

Show-ups are particularly valuable because they capture the entire head-to-toe appearance of a possible suspect shortly after the incident in question, including features that may not appear in stored photographs such as hair length, style and color, facial hair, tattoos, piercings, clothing, shoes, jewelry, carried items (backpacks, purses, etc.) and state of intoxication. Show-ups can be conducted much more quickly than photo line-ups, and many investigations benefit from the prompt display of a suspect to a witness. Show-ups also result in a shorter retention time for possible suspects than if they were held while a photo lineup is prepared. These reasons, and the fact that they capture the entire, current appearance of the individual, make show-ups an important and valid identification procedure.

Show-ups should be conducted as follows:

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A. Consider whether a show-up is appropriate, given the circumstances and time after the incident, or whether a photo line-up should be used instead.

B. Obtain a thorough description of the suspect from each witness before the show-up. See “information to gather before any identification process” at the end of this document.

C. Ensure that, while making the presentation, all participating officers avoid words or conduct suggesting that the individual presented is criminally liable.

D. To the extent reasonably possible, avoid tarnishing the suspect by, for example, presenting a suspect in handcuffs or in the back seat of a police car.

E. Always transport the witness to the suspect’s location, NOT the suspect to the witness.

F. Separate witnesses before, during, and, to the extent reasonably possible, after the show-up to avoid communication between them. If witnesses cannot be separated afterward (e.g. they are family members, friends or co-workers), then ask the witnesses not to discuss their identifications with each other.

G. Read the instructions from the Eyewitness Identification form (attached), ensuring and documenting that the witness understands the instructions.

H. Document the witness’s statement on the Eyewitness Identification form.

I. Document the circumstances of the show-up:

a. The time of the show up.

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b. The admonishment given before the show-up.

c. All statements made by the witness during the show-up.

d. Exactly what the witness said about the identification.

e. Document what reminded the witness of the suspect; i.e. the reasons the witness made the identification.

f. It is best NOT to use a scale of 1-10 or a percentage to describe level of certainty, unless the witness must do so; give reasons instead.

g. Document any conversations witnesses may have had with each other before or during their identification.

h. Document the lighting at the show up.

i. Note the distance between the witness and the suspect at the show-up.

J. If a witness IDENTIFIES the suspect, photograph the clothing and identifying features:

a. Photograph the suspect in their clothing, including coat, backpack, hat and shoes.

b. If the witness includes these characteristics in the identification, also photo the teeth, hands (including jewelry), birthmarks, scars, tattoos and piercings.

K. Seize the clothing, shoes, hat, jewelry, etc. if it was involved in the identification.

a. Seize all such clothing incident to arrest or pursuant to a search warrant as evidence of the crime (defendant’s

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identity) as directed by the DDA.

b. Clothing and other apparel may be useful in identifying a suspect.

L. DO NOT confirm for the witness that the witness identified a person whom the investigator believes committed the crime in question, unless there is a significant reason for doing this, which must be documented.

M. If the witness does NOT IDENTIFY the suspect, the circumstances and responses shall also be documented on the Eyewitness Identification form and in the report including:

a. Exactly what the witness said about the identification attempt; i.e., what words did the witness use when stating the person is not the one involved in the incident in question?

b. Ask the witness how the person differed from the suspect and document the answer.

c. Photograph the individual to document their appearance.

3.58 Controlled Substance Policy

All controlled substance based prosecutions must be accompanied by a request for, and report of, confirmatory testing from the Oregon State Police (OSP) Forensic Laboratory for the presence of a controlled substance.

Consistent with our current practice, a plea may occur in advance of the receipt of a report where a field test and corroborating evidence demonstrate the presence of a controlled substance. However, in such cases the field test results, although highly reliable, must be confirmed with a lab report. 77

If the results of laboratory testing are not available prior to resolution of a case, it is the responsibility of the case DDA to obtain the report when it is available. If the OSP report is inconsistent with the controlled substance that is the subject of the terms of the plea, or if the OSP report reveals, “No Controlled Substance” was detected, the report should be sent to the case DDA, and the SDDA of Unit B. A copy of the OSP report will also be provided to defense counsel. In addition, the SDDA should consult with their CDDA and Post-Conviction DDA regarding appropriate next steps.

3.59 Ordering Transcripts

During the pendency of a felony case, it may become apparent to the DDA that there is a reasonable likelihood that the case will proceed to trial. If, at about the 90th day, unless there is an accelerated trial date, the DDA believes that trial is likely, the DDA should make a determination regarding how much of the previous witness testimony, from grand jury or preliminary hearing, will need to be transcribed. Some cases, such as , may require transcription of the entire grand jury or preliminary hearing. Other cases may only require transcription of certain witness(s) testimony. Some cases will not require any testimony to be transcribed.

Once a decision has been made to obtain transcript(s), approval of the request must be obtained from the CDDA of the DDA’s division in writing. The case DDA will then notify the appropriate staff person ordering the approved transcription via e-mail noting the DA case number, defendant’s name and deadline by which the transcription is needed. A copy of the information should be forwarded to the accounts payable clerk at [email protected]. After receipt of the invoice, the accounts payable clerk will contact the case DDA to confirm receipt of the transcript prior to payment.

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If a DDA is requesting transcription of some, but not all, of the prior testimony, they must specify to the staff person exactly which testimony is being requested.

3.60 Stipulated Facts Trial

The following rules should help when you are considering a stipulated facts trial.

A. Agreements shall include stipulation to allegations contained in the complaint or indictment.

B. Agreements shall include a stipulation to a guilty finding. If either the defense or court refuses to make such a commitment, do not enter into the stipulation.

Remember that a stipulated trial is a trial for purposes of double jeopardy. You should seldom, if ever, allow a defendant to stipulate to a lesser-included charge. If the conviction is reversed or the court allows a new trial, you can only proceed on the charge or charges for which the defendant was found guilty. In order to avoid these problems, you need to prepare an agreement whereby the defendant waives their statutory and constitutional rights and agrees that if the matter is set aside or comes back for any reason, all counts or cases that have been reduced, dismissed or not tried can be reinstated regardless of double jeopardy, , or speedy trial. This agreement must be signed before the plea is accepted by the court.

C. You must always have a wavier.

D. Never allow the defense to put on any evidence.

E. Be aware of Steward v. Cupp, 12 Or App 167 (1973), which holds that if the plea later falls apart on appeal or post-

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conviction relief, you may be barred from bringing back the charges you dismissed pursuant to any agreement. Therefore, for both stipulations and , you should be aware of the consequences of reducing or dropping other charges. See B above.

3.65 Jury and Court Trial Evaluations

Every DDA is expected to complete a trial evaluation. The evaluation should contain a brief summary of the facts, any defense raised, problems with the case, any judicial ruling that would be important for other DDAs to know, and the verdict. In addition, a DDA needs to complete the same information for felony court trials. An evaluation should also be completed for stipulated court trials following a dispositive motion and for dismissals after a matter is assigned out for trial when a court grants a motion that results in the state being unable to proceed.

The jury evaluations should be sent to all of the attorneys in the office. The other evaluations, which must contain the same information, should be sent to the SDDA in charge of the unit, and the CDDA. A DDA may wish to share their court trial evaluation with all the attorneys, but is under no obligation to do so.

NOTE: Use appropriate words and phrases in writing your evaluation, avoid use of photographs to include those that are sensitive in nature as they sometimes are shared outside of the office.

3.70 Expert Witness Fees

It is the policy of this office that expert witness fee payments shall be consistent with the schedule below. When a DDA feels that an expert’s evaluation, consultation, or testimony is necessary for the successful prosecution of a case, and after

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conferring with the SDDA supervising the unit, the DDA shall contact the prospective expert and review the fee schedule and time limitations (below) with the expert. The DDA will complete the MCDA Expert Witness Order Form and submit to the CDDA of the division for signature authorizing payment. The signed form should then be forwarded to the Finance Department (interoffice mail: 101/600 or email: [email protected]) and to the Expert Witness.

A. Expert Witness Fee Schedule

Spending Limits Written Evaluations/Reports Testimony Max Max Hourly Max Total Max Total Expert Type Hourly Rate Expense Expense Rate

Aid and Assist $150/hr $750 $150/hr $300

General Psychological $150/hr $750 $150/hr $300

EED or Diminished $150/hr $750 $150/hr $300 Capacity IQ or Intellectual $150/hr $750 $150/hr $300 Disability Guilty Except for Insanity $150/hr $750 $150/hr $600 (GEI) GEI/EED after Aid and $150/hr $450 $150/hr $600 Assist by same provider

Sexual Offender Eval. $150/hr $1,500 NA NA

$400 Polygraph NA exam + NA NA report

Dangerous Offender $150/hr $1,500 $150/hr $600

Other medical or $175/hr $2,100 $175/hr $700 Neuropsychological Exam

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NOTE: Travel costs are not allowed for witnesses in the Tri- County area.

B. Extraordinary Expenses

Some cases present unique challenges that will require expenses not listed in the table above. The same procedure will apply. Upon CDDA approval, the office will reimburse travel at $60/hr.

C. Payment Procedure

The expert witness will submit an itemized bill for services to: Multnomah County District Attorney’s Office, Attention: Finance Unit 1200 SW First Avenue, Suite 5200, Portland OR 97204. Please ask the expert witness to include the DA case number on the invoice. The itemized bill be will be compared to the expenses authorized in the MCDA Expert Witness Order Form submitted to the CCDA and Finance in 3.70 above.

3.75 Polygraph Examinations

A. Stipulated Polygraphs

The Oregon Supreme Court in State v. Lyon, 304 Or 221(1987) held that polygraphs, even if they are stipulated, can never be introduced by the state as evidence tending to prove guilt. Therefore, no DDA should ever stipulate to the introduction of a polygraph result at trial.

Polygraphs may still be used by the police for investigative purposes. However, once a case has been issued, if a DDA wishes to dismiss it on the basis of a polygraph, the DDA must obtain the approval of the CDDA in charge of their division, or in the CDDAs absence, the First Assistant to the District Attorney or District Attorney.

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3.80 State’s Appeal Review Procedure

1. Summary

A DDA wishing to appeal a judge’s ruling must, within seven calendar days: consult with their SDDA, obtain the FTR recording of the applicable proceeding, write and submit a detailed memorandum covering the law and facts justifying the appropriateness of an appeal to the Appeals Review Panel and the DOJ Appellate Division. Purpose

An adverse ruling on appeal has the potential to affect all district attorneys and all criminal proceedings throughout the state. Accordingly, the filing of a state’s appeal requires careful consideration. It also requires the services and assistance of the DOJ Appellate Division and involves rapid coordination of communications within this office. Compliance with this procedure will ensure due consideration of each case.

There may also be the rare case in which this office desires to argue its own appeal in the higher . These procedures provide opportunity to make an informed judgment respecting whether a particular case may require such treatment.

2. Approval of a State’s Appeal by the First Assistant to the District Attorney and or District Attorney

The decision to take a state’s appeal must be approved by the First Assistant to the District Attorney, subject to such consultation with, and further approval by, the District Attorney as the District Attorney requires. This approval generally follows the steps listed in part four below.

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3. Appeals review panel and appeals coordinator

The Appeals Review Panel consists of the First Assistant to the District Attorney, the CDDAs, the SDDA in charge of Pretrial Unit, and the Appeals Coordinator.

The Appeals Review Panel may be convened for full panel review of exceptional potential state’s appeal cases when such collective review is requested by the First Assistant to the District Attorney, or the District Attorney, prior to approval of an appeal.

In all other cases the appeal issue generally will be discussed with the Appeals Review Panel member(s) from whose division of the office the case arises. All members of the panel routinely will receive a copy of the case attorney’s memorandum requesting a state’s appeal so that the individual panel members may forward comment to the Appeals Coordinator for review by the First Assistant to the District Attorney prior to final decision, unless exception is made by the First Assistant to the District Attorney.

The Appeals Coordinator, in addition to participation as a panel member, schedules meetings of the panel as required, acts as liaison to the DOJ Appellate Division on appeals cases, maintains related records, and performs other administrative duties mentioned below or as assigned.

Staff inquiries about pending appeals or potential state appeals should be directed to the Appeals Coordinator. If the coordinator is unavailable, the SDDA in charge of Pretrial Unit should be contacted, and if both are unavailable, the First Assistant to the District Attorney.

5. Appeal Review Steps

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An appeal, or the filing of a special proceeding in a higher court in lieu of an appeal, must be approved by the First Assistant and or the District Attorney before an appeal is filed. The following steps are necessary for review of all requests for an appeal.

5.1 Upon determining that an appeal is or may be warranted, the case attorney will immediately discuss the proposed appeal with the SDDA in charge of their unit.

5.2 A brief log note should be entered recording the result of that consultation, i.e., “appeal recommended” or “no appeal review requested,” along with a brief statement of reason; e.g., “important question of law,” “judge’s decisions appeared arbitrary,” “not worth expense of appeal because of other viable charges pending.”

5.3 Within seven calendar days from the entry of the order to be appealed the case attorney must provide the Appeals Coordinator with: the case file, the FTR recording of the proceeding, and a detailed memorandum stating: (1) the issue(s) to be appealed, (2) a brief summary of the main evidentiary facts, particularly indicating how the court resolved any conflicts of evidence or any credibility issues, and (3) citation of leading case(s) relied upon and key cases cited by defense, if important.

5.4 No case file will be accepted for review unless the file contains a copy, preferably showing judge’s signature, of the order or judgment in question. The DDA may consult the Appeals Coordinator or SDDA for advice on the form of the order of judgment, or of relevant findings and conclusions, before the order or judgment

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is signed, since the form of order or particular findings may affect MCDA’s position on appeal.

5.5 The Appeals Coordinator will determine whether any further written memorandum or supplementary information or documentation is needed. It is the responsibility of the case attorney to provide such additional information as may be needed.

5.6 The Appeals Coordinator will distribute copies of the case attorney’s appeal memorandum to all members of the office Appeals Review Panel (part 3 above) and will coordinate review with the First Assistant.

5.7 The Appeals Coordinator will notify DOJ that this office is recommending an appeal and facilitate any further conversation with their office on the topic. DOJ will file the notice of appeal on behalf of the state unless the First Assistant or District Attorney direct otherwise.

6. Timetable for Appeal Review

To ensure adequate time for review the following timetable for state’s appeals should be strictly adhered to. All days are counted from the day the formal order or judgment is entered in the register.

Day 7 The case file, fully prepared in accordance with these review procedures, is provided to the Appeals Coordinator. The Appeals Coordinator will alert DOJ to the pending case.

Day 14 Approval by Appeals Review Panel.

Day 15 DOJ formally notified of this office’s request for a state’s appeal.

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Day 30 Deadline for filing a notice of appeal.

3.85 Forfeiture

As of January 1, 2017, it is the policy of the District Attorney to no longer pursue a share of any forfeiture proceeding associated with a criminal prosecution. However, if a forfeiture request was submitted prior to January 1, 2017, the MCDA will accept an equitable share of those funds.

It is the policy of this office that forfeited assets first be distributed to any crime victims as restitution for the underlying criminal offenses prior to participating in asset sharing.

Proceeds or instrumentalities seized for purposes of forfeiture obtained from innocent third parties shall be returned as provided in ORS Chapters 131, 131A and ORS 133.633 if the items are not needed as evidence in a pending criminal case.

3.90 Weapons Charges and Destruction of Weapons

A. Policy

It shall be the policy of the District Attorney’s Office to vigorously prosecute all crimes involving the possession and use of a firearm.

B. Issuing

The District Attorney’s Office will file criminal charges in any case where there is a prosecutable case involving a firearm. In addition, the District Attorney’s Office will plead mandatory minimums and sentencing guideline subcategories whenever applicable.

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On all felony cases involving the possession, use or attempted use of a firearm, DDA’s must consult with the SDDA or CDDA of the affected division before declining to issue charges.

C. Plea Negotiations

The District Attorney’s Office will not negotiate minimum sentences for use of firearm cases under ORS 161.610 unless approved by the CDDA of the affected division.

Whenever a plea is negotiated on any weapons case, the DDA, as part of the negotiation, will obtain a stipulation authorizing the confiscation and destruction of the weapon, whether the weapon is a firearm or any other type of weapon.

The District Attorney’s Office will not dismiss firearms offenses unless (1) the defendant is pleading to more serious charges and the use or threatened use of the firearm is an of the offense, or (2) the CDDA of the unit approves the plea.

Destruction of Firearms and Dangerous Weapons

Except in the case of stolen firearms (discussed below), the District Attorney’s Office, absent extraordinary circumstances, will request that all firearms and dangerous weapons illegally possessed, carried or used in the commission of a crime be confiscated and destroyed as part of any sentence imposed. It is the District Attorney’s position that ORS 166.280 (firearms), Portland City Code Section 14.32.110 (firearms and dangerous weapons), and Multnomah County Code section 15.060 et seq., give the state the authority to dispose of any firearms or dangerous weapons that are used or possessed unlawfully. These situations require that the Portland City Attorney, County

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Counsel, Gresham City Attorney (or equivalent other agencies) representing the police agency in an actual possession of the weapon be served with any motion to release so that they may assert the public’s interest in having those weapons confiscated or destroyed. In the event that a firearm is possessed, carried or used illegally but no charge is issued, or after being issued it is dismissed, it is the District Attorney’s position that unless the firearm is stolen, the state statute authorizes the confiscation and or destruction of such firearms.

If the firearm is the stolen property of an unrelated, third- party victim, then the DDA may agree to lift the state’s evidentiary hold upon completion of the case to make possible its return to the victim of the theft (i.e. the lawful owner of the firearm) per ORS 166.279(3). This allows the police agency to determine who the lawful owner is and return it to that person as appropriate. With a stolen firearm, it is assumed that the firearm will be returned to its lawful owner, but it is police agency’s responsibility to determine who that is. Thus, the DDA will never specify to whom a firearm may be returned, whether stolen or not.

Under ORS 166.279(2) the court is required to declare forfeited, any weapon that was “possessed, used, or available for use to facilitate the offense.” Accordingly, this office will require this in any negotiations and, in the event of a trial, notify the court of this obligation in such case.

The District Attorney’s Office shall not agree to return a firearm to a defendant, or a family member or associate of defendant, and will oppose such a return even if the case is dismissed or there is an acquittal. It is up to the police agency that has custody of the firearm to determine the status and ownership of that firearm. The District Attorney’s Office will always object to a return of the firearm to

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defendant, their family member, or anyone else whom defendant selects.

A defendant may, of course, file a motion seeking a court order for the return of a firearm. The DDA will oppose any such motion and will immediately notify the relevant city attorney’s office or county counsel so they may intervene and be heard.

In sum, the District Attorney’s Office will never approve the return of a firearm to a specific individual under any circumstance. If, at the conclusion of the case, the firearm is not ordered confiscated or destroyed by the court, then the decision about whether to release a firearm, and to whom, rests exclusively with the police agency under state law.

Any exception to this policy must be approved by a CDDA or the First Assistant to the District Attorney.

D. Notification to the United States Attorney’s Office

In consultation with the United States Attorney’s Office, when appropriate, cases where a firearm is possessed or used by a felon may be considered for referral to the United States Attorney for federal “Felon in Possession of a Firearm” and Armed Career Criminal treatment.

3.95 Structured Intermediate Sanctions

The Structured Intermediate Sanctions program allows most probation violations to be handled administratively by the Department of Corrections or the Department of Community Justice. The court, however, may withhold a case from this program if it states so at the time of sentencing under ORS 137.593(2)(b). It is our policy to ask the court to make an express decision on this issue on any Ballot Measure 11 case

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under HB 1049 or any case that has been reduced from Ballot Measure 11 and sentenced to probation. Cases that are domestic violence involved or are part of Multnomah County Reinvestment Program (MCJRP) have prescribed rules surrounding intermediate sanctions and those policies and practices shall be complied with. Further, a DDA’s advocacy for or against structured intermediate sanctions should take into account whether specialty courts or other program policies are applicable to a particular case. The specialty court/program may pre-authorize administrative sanction use, and therefore present an exceptional circumstance justifying structured intermediate sanctions as an appropriate part of a defendant’s probation conditions.

3.96 Homicide Case Closing Protocol

The goal of this protocol is to have all case evidence and reports in one place at the police property and evidence room (PER) and a set of all reports and electronic evidence in the DA’s physical file.

Five categories of evidence are addressed:

1. Evidence seized originally by the police agency and stored at its evidence facility;

2. All state reports in the case (police, medical, autopsy, lab, etc.);

3. Electronic case evidence from all sources (photos, videos, phone calls, jail calls, GPS data, etc.);

4. Oversized trial exhibits which have been photographed and stored on electronic media;

5. Defense reports and evidence including mitigation.

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If there was a trial, the DDA should follow steps 1 through 9 after sentencing:

1. Move to withdraw all trial exhibits from the trial court. Then, with the exception of oversized exhibits created for demonstrative purposes which are discussed below, send all case evidence, whether used as trial exhibits or not, back to the police PER for permanent storage under the police case number;

2. All oversized, demonstrative trial exhibits, e.g., maps, enlarged photos, will be photographed by a DA Investigator, including the exhibit stickers with numbers visible. These photographs will be stored in MCDA’s Document Management System (DA DMS) and on a memory device (MD). Make two copies of this MD; put one in the DA physical file (hereinafter “DA file”) and store the second at the PER under the police case number. With written permission from the trial court, these exhibits may then be destroyed;

If the case resolved by plea the DDA should follow steps 3 through 9 after sentencing:

3. Put a complete set of all electronically stored evidence, anything provided in discovery on CD, DVD, thumb-drive or other memory device, into the DA file; and a second set in the PER for storage under the police case number;

4. Put a MD containing a complete set of Bate-stamped pages furnished in discovery into the DA file, and a second copy in the PER under the police case number;

5. Put all defense discovery and mitigation information onto a MD and place it in the DA file, labeled as such, and a second copy in the PER under the police case number;

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6. The DDA will be assisted in steps 3 through 5 by the Major Crimes Discovery Desk;

7. Any new property/evidence receipt(s) generated by the above activities will be copied to the DA file and DMS;

8. The case homicide detective should be the one to transport all materials described above to the PER;

9. All biological evidence will be retained by the police agency and preserved for potential retesting;

10. DA Support Staff will send a letter to the Oregon Department of Corrections, with a copy to the State Board of Parole and Post- Supervision, with the indictment, judgment, criminal history, Presentence Investigation (PSI), restitution order and any other materials necessary to describe the case.

3.97 Post-Conviction DDA Position

The Post-Conviction Deputy seeks to ensure wrongful convictions are avoided and that post-conviction matters are appropriately administered. The Post-Conviction Deputy is responsible for the review of all legitimate claims of actual innocence pursuant to ORS 138.690 (post-conviction motion for DNA testing).

In addition, the Post-Conviction Deputy also reviews other claims of innocence, acts as a liaison with the Attorney General’s Office regarding post-conviction relief matters, represents the District Attorney in cases before the Parole Board and maintains office policies and protocols developed to prevent wrongful convictions from occurring and to ensure the proper administration of justice. To that end, in coordination with the assigned CDDA, the Post-Conviction

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Deputy will maintain and update policies, protocols and materials related to:

 Discovery Obligations

 Eyewitness Identification

 Recorded Police Interviews

 Ethics and Professionalism

 Confidential Informants

 Forensic Evidence Retention

 Proffers and Cooperation Agreements

 Homicide File Closing Protocols

The Post-Conviction Deputy will be an experienced prosecutor with recognized expertise related to post-convictions matters. The Post-Conviction Deputy reports directly to the CDDA assigned to Division Three. In certain cases, the Post- Conviction Deputy will consult with and be assisted by a Post- Conviction team named by the District Attorney and consisting of CDDAs, SDDAs and investigators.

Conviction Integrity

All claims of actual innocence will be initially reviewed by the Post-Conviction Deputy. Responses to such claims will be coordinated with the original case prosecutor and investigators when possible. Claims based on assertions that DNA evidence would demonstrate actual innocence normally must be filed in compliance with ORS 138.690, but in exceptional cases that requirement may be waived. When

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deemed appropriate, DNA testing will be performed even in the absence of a court order.

Other claims of actual innocence, based for example on a claim of a false confession or mistaken eyewitness identification, may be presented to the Post-Conviction Deputy for evaluation. Convictions must have been in Multnomah County, Oregon and there must be evidence of innocence available. Defendants who are currently represented by counsel must communicate with the Post- Conviction Deputy through the defendant’s attorney. A claim of innocence form must be completed and presented to the Post-Conviction Deputy prior to any review of the case. A copy of the form is available on the Multnomah County District Attorney’s public website at www.mcda.us.

Following an initial evaluation of a claim of actual innocence, the Post-Conviction Deputy may coordinate with prosecutors and investigators comprising the Post-Conviction Team. In appropriate cases a concerted effort will be made to exonerate persons believed to have been wrongfully convicted.

Petitions for Clemency

All petitions for clemency (requests for , commutation of sentence, reprieve or remission of fines) will be initially reviewed by the Post-Conviction Deputy. In consultation with the CDDA, clemency petitions may be assigned to the appropriate case prosecutor for further review. Following review, which will include consultation with the case prosecutor, investigators and crime victims, the Post-Conviction Deputy may communicate with the ’s Office or facilitate such communications as appropriate. Final decisions regarding petitions for executive clemency must be approved by the CDDA or District Attorney.

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Post-Conviction Relief

The Post-Conviction Deputy will monitor and review state and federal post-conviction relief actions in homicide cases and tier one measure eleven cases. In some cases, primarily aggravated murder, murder and other cases deemed complex, the Post-Conviction Deputy will brief legal issues and coordinate directly with the assigned assistant attorney general. It is expected that the Post-Conviction Deputy will serve to protect the interests of crime victims and community safety by ensuring that cases withstand scrutiny upon post- conviction review.

Parole Board

At the direction of the CDDA, the Post-Conviction Deputy will review certain cases set for parole hearings and in some instances will personally represent the District Attorney’s Office and victims during hearings before the Board of Parole. The Post-Conviction Deputy will also provide legal assistance to prosecutors assigned to cases set for parole board hearings.

Psychiatric Security Review Board

All homicide and tier one measure eleven cases under the jurisdiction of the review board which are subject to review hearings will be tracked by the Post-Conviction Deputy. In some cases, the Post-Conviction Deputy will personally represent the District Attorney’s Office at the review hearings. In other cases, the Post-Conviction Deputy will be available for consult with the assigned deputy district attorney.

3.98 MCDA USAK – Post Conviction Policy

I. INTRODUCTION

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In September 2015, the Multnomah County District Attorney's Office (MCDA) was awarded the Sexual Kit Backlog Elimination Grant by the Office of the District Attorney, New York County (hereinafter referred to as DANY or the DANY Grant). The Purpose of the DANY Grant is to provide funding to governmental agencies to test untested kits (SAKs). MCDA formed a team, including a victim advocate, a forensic consultant and a prosecutor, known as the USAK Team, to oversee the testing of SAKs under DANY as well as process the cases that re-surface due to testing results. In total, approximately 29002 SAKs were tested at a private forensic laboratory (Sorenson Forensics LLC) by October 2018.

Upon completion of testing, Sorenson provided all results through an electronic portal to MCDA. For those SAKs in which forensic analysis yielded a DNA profile that was eligible for uploading into the Combined DNA Index System (CODIS), Oregon State Police (OSP) will review Sorenson's work and also upload the profile into CODlS. OSP then notifies the MCDA of any CODlS hit by report.

All of the forensic laboratory reports from SAKs on post- conviction cases3 within Multnomah County will be disseminated to the defendant and or the last known attorney (or firm) of record. The timing of dissemination is discussed further in Sections V and VI. In addition, with the exception of results that match the defendant, the USAK Team conducts a case review, discussed in Section III, to assess what, if any, further action is necessary.

II. FORENSIC LABORATORY REPORTS IN POST - CONVICTION CASES

2 Because of the availability of some remaining unspent DANY grant funds MCDA was able to organize and facilitate payment for untested SAK kits from several counties in Oregon. 3 MCDA expects that there will be approximately 130 such cases where Sorenson tested SAKs on cases that have already resulted in a conviction (from cases originating within Multnomah County). 97

In a preliminary review of the case details with SAKs on post- conviction cases that are tested, the USAK Team noted that many of the cases involve corroborated sexual contact (i.e., defendant was caught in the act, defendant admitted to the conduct) and in other cases, sexual assault charges were not charged, indicted or pled to.

MCDA has identified the following examples of possible forensic testing result categories on post-conviction SAKs:

A. DNA matches the defendant;4

B. DNA mixture where the defendant could not be excluded as a possible source or possible donor;

C. DNA matches someone other than the defendant;5

D. DNA is from an unidentified individual (i.e. does not match the defendant and no CODlS hit);

E. DNA result is inconclusive (i.e. complex mixture where defendant cannot be included or excluded);

F. DNA result is inconclusive in that DNA is detected but result is too low for comparison; and

G. No DNA detected.

III. CASE REVIEW CONDUCTED BY USAK TEAM

Within 30 days after the forensic testing result has been received by MCDA, the USAK Team will begin a case review. A case review will occur for all forensic testing result types,

4 Of the post-conviction cases, 47 of the tested SAKs from Multnomah County resulted in a CODIS hit to the convicted defendant. 5 This would include a CODIS hit matching another person convicted in the case, a CODIS match to a person not charged, or a DNA match to a person previously known in the case (i.e. victim's spouse, domestic partner, or friend). 98

except when the DNA matches the defendant.6 A case review will be initiated by requesting the file, or whatever file materials exist.

The case review will include a comparison of the forensic testing results to the case details, including but not limited to, the following:

A. Type of case (i.e. sexual abuse in the first degree, murder, etc.) and number of offenses charged;

B. The significance of the evidence (i.e. what was the evidence, how does the result relate to the case, probability statistics of the DNA match). In some cases, this may require a consultation with the original case prosecutor (if still at MCDA);

C. Other evidence upon which a conviction was based;

D. The type of conviction (plea or trial);

E. The connection between the source of the DNA and the case (i.e. who is this person and what is their relationship to the victim, the defendant, or the case);

F. Information on whether there is other probative evidence that was not analyzed that may connect the suspect to the crime;

G. Whether the defendant was aware at the time of the conviction that there was a SAK collected; and

H. Whether additional investigation is needed to evaluate the DNA result.

6 When the DNA result matches the defendant, the USAK Tea m will disseminate-as soon as practicable-the forensic laboratory report to the defendant and or the last known attorney (or firm) of record with an explanatory cover letter. No case review will occur, but notes will be added to CRIMES (or any future system equivalent). 99

IV. CASE REVIEW REPORT

After the case review is complete, the USAK Team prepares a case review report along with any opinion or conclusion reached regarding the significance of the forensic testing result.

The case review report shall be submitted to a CDDA for review. For informational purposes, the case review report is also provided to the original case prosecutor (if still at MCDA).

V. CHIEF DEPUTY DISTRICT ATTORNEY REVIEW

Upon receiving the USAK Team's case review report, the CDDA reviews the report and does one of the following:

A. Take no further action aside from sending the forensic laboratory report to the defendant and or the last known attorney (or firm) of record with a cover letter summarizing the USAK Team's analysis of the significance of the evidence and copy the Post-Conviction Deputy District Attorney on the communication; or

B. Forward the USAK Team's case review report7 to the Conviction Integrity Committee (CIC)8 for their review in accordance with Section VI. Following the conclusion of the CIC's review, the CDDA disseminates the forensic laboratory report to the defendant and or the - last known attorney (or firm) of record with a cover letter presenting the results of the review. However, when the review of a case goes to the District Attorney (as described in Section VI(F)), it will be the District Attorney who

7 Case review reports and memorandums concerning the case review shall be included in the paper file (if one exists) and or electronically added to the file. Notes summarizing the same will be added to CRIMES (or any future system equivalent). 8 The Conviction Integrity Committee (CIC) is comprised of MCDA's three Chief Deputies and the First Assistant to the District Attorney.

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disseminates the forensic laboratory report with a cover letter presenting the results of the review and describing what, if any, final action will be taken.

VI. CONVICTION INTEGRITY COMMITTEE (CIC) REVIEW

The CIC will conduct its review of any case referred by the CDDA as follows:

A. The CIC will review the USAK Team's case review report and decide whether further investigation is warranted given the forensic testing result.

i. The CIC will give particular weight to whether the conviction was obtained by trial or plea, and if by plea, the circumstances of the plea agreement will be considered.

B. If the CIC determines that the forensic testing result does not warrant further investigation, then no further action will be taken, except to disseminate the forensic laboratory report with a cover letter presenting the results of the review, as mentioned in Section V(B).

C. If the CIC determines that the forensic testing result warrants further investigation, then the case will be assigned to the Post-Conviction DDA to facilitate that investigation.

D. After the investigation is complete, the Post-Conviction DDA will forward a memorandum to the CIC containing a recommended conclusion as to the significance of the forensic testing result based on this additional investigation, as well as a recommendation for any further action.

E. The CIC will convene and conclude whether the Post-

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Conviction DDA's conclusion shall be adopted and recommended, by written memorandum, to the District Attorney, as well as what, if any, action should be taken on the case.

F. The District Attorney will review the USAK Team's case review report, the Post-Conviction DDA's memorandum, and the CIC's memorandum, as well as the case file materials themselves, if necessary. The District Attorney shall make the final decision as to what action to take in the case given the forensic testing result. This decision is solely in the discretion of the District Attorney.

G. Following the above decision by the District Attorney, the District Attorney will disseminate the forensic laboratory report to the defendant and or last known attorney or firm of record with a cover letter presenting the results of the review and describing what, if any, final action will be taken.

3.99 MCDA USAK - Victim Notification Policy

I. INTRODUCTION

As mentioned in 3.98 above, in September 2015, the Multnomah County District Attorney’s Office (MCDA) was awarded the Sexual Assault Kit Backlog Elimination Grant by the Office of the District Attorney, New York County (hereinafter referred to as DANY or the DANY Grant). The Purpose of the DANY Grant was to provide funding to governmental agencies to test untested sexual assault kits (SAKs). MCDA formed a team, including a victim advocate, a forensic consultant and a prosecutor, known as the “USAK Team”, to oversee the testing of SAKs under DANY as well as process the cases that re-surface due to testing results. The DANY Grant endorses a “Forklift” approach such that all

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untested SAKs9 from Multnomah County, Marion County and Lane County were tested using the allotted funds. In total, approximately 290010 SAKs have been tested at a private forensic laboratory (Sorenson Forensics LLC) through October, 2018.

The testing included a Y-Screen DNA process to be completed by Sorenson. Each law enforcement agency (LEA) with eligible SAKs was responsible for sending those SAKs to Sorenson at the direction of MCDA. Upon completion of testing, Sorenson provided results through an electronic portal, accessible to each sending LEA, MCDA and the Oregon State Police Crime Laboratory (OSP). LEAs were notified of testing results, and MCDA was copied on all results.11 For those SAKs in which forensic analysis yielded a DNA profile that is eligible for uploading into the Combined DNA Index System (CODIS), OSP will review Sorenson’s work and also upload that profile into CODIS when eligible. OSP will then notify the LEA of any CODIS hit by report. OSP will also notify the MCDA of all CODIS hits, even if not from cases that were generated in Multnomah County.12

The return of forensic testing results will be a starting point for LEAs to re-evaluate and re-investigate its cases. It will also necessitate, in certain cases, notifying the victims13 about the testing results.

II. VICTIM NOTIFICATION POLICY WORK GROUP

To address the issue of victim notification for cases within Multnomah County, MCDA’s USAK Team enlisted the assistance

9 A SAK must be 365 days or older before it is eligible for testing under DANY. The only SAKs that cannot be sent are “Jane Doe” or anonymous SAKs and SAKs where it has been conclusively established that no crime was committed (i.e., video evidence conclusively proves that no crime was committed or victim unequivocally recanted). 10 Because of the availability of some remaining unspent DANY grant funds MCDA was able to organize and facilitate payment for untested SAK kits from several additional counties in Oregon. 11 Sorenson’s forensic testing results are divided into three categories: “CODIS Comparable,” “CODIS Ineligible,” and “Negative.” 12 This is because MCDA is required to complete quarterly DANY reports regarding all SAKs that were tested. 13 Throughout this policy, the term “victim” will be used. This is not done out of disrespect for any other preferred terminology; it is done because the term “victim” is most commonly used by law enforcement as well as courts. 103

of Michele Roland-Schwartz (Executive Director of the Oregon Attorney General's Sexual Assault Task Force14) and Danielle Tudor (Survivor, Activist and Advocate). Utilizing the experience and backgrounds of persons outside the standard law enforcement community is an approach that is supported by the Joyful Heart Foundation.15

The Work Group benefitted from having reviewed the Joyful Heart Foundation’s written guidelines Navigating Notification: A Guide to Re-Engaging Sexual Assault Survivors Affected by the Untested Kit Backlog, released April 7, 2016,16 as well as the Oregon Sexual Assault Task Force’s Survivor Notification Recommendations, released February 5, 2016.17 Utilizing these recommendations as well as other victim notification trainings, the Work Group has prepared this written policy.

III. PURPOSE OF VICTIM NOTIFICATION POLICY

The purpose of this policy is to provide a framework for notifying victims. It is anticipated that not every policy decision made will work for every case. On the whole, the Work Group endorsed the idea of maintaining a flexible approach as well as the ability to revise this policy as we learn what works best in this county. The Joyful Heart Foundation’s recently released guidelines (Navigating Notification) supports the idea that developing notification procedures which are “empowering, healing and safe” are the key considerations behind notification.18

IV. SCOPE OF VICTIM NOTIFICATION

14 The Oregon Attorney General’s Sexual Assault Task Force (SATF) (http://oregonsatf.org/) states that its mission is the “effective prevention of and response to sexual violence through collaborative, comprehensive, survivor- centered strategies.” 15 Joyful Heart Foundation (www.joyfulheartfoundation.org) is a national organization founded in 2004 whose mission is to “heal, educate and empower survivors of sexual assault, domestic violence and , and to shed light into the darkness that surrounds these issues.” Learn more at: http://www.joyfulheartfoundation.org/about-us/our-story. 16 http://issuu.com/thejhf/docs/navigatingnotification/1?e=15058640/34484663 (hereinafter “Navigating Notification”). 17 http://oregonsatf.org/wp-content/uploads/2011/02/AGSATF-Survivor-Notification-Recommendations-After- Processing-Untested-SAFE-Kits.pdf (hereinafter “SATF’s Notification Recommendations”). 18 Navigating Notification, p. 19. 104

Other than cases originating from Portland Police Bureau (PPB), MCDA’s USAK Team will be responsible for victim notification on cases within Multnomah County.19 MCDA estimates that this will amount to a total of approximately 300 SAKs, across the remaining Multnomah County jurisdictions, from which testing results could prompt victim notification.

In September of 2017, the MCDA team attended the Sexual Assault Kit Initiative Summit of Cities Conference. In discussing victim notification best practices, the MCDA USAK team, in consultation with the Portland Police Bureau’s Sexual Assault Kit Initiative (SAKI) team, expanded the scope of MCDA’s victim notification. The PPB SAKI team adopted a policy of notifying victims on all Portland Police cases where there is a CODIS hit, even if the case is not prosecutable.20 In consultation with the MCDA team, it was decided that if the case is not prosecutable, the USAK prosecutor and USAK victim advocate will handle notification, as these conversations require communication of complicated legal issues.21

V. CASES RESULTING IN VICTIM NOTIFICATION

The Work Group recognizes that MCDA’s relatively small number of SAKs for which it will be conducting victim notifications is conducive to a more tailored approach. We recognize that other cities/areas with larger quantities of backlogged SAKs must draft victim notification policies that are in line with their larger numbers and allotted resources.22

19 PPB, utilizing its SAKI Grant funds, has hired additional advocates in anticipation of the notification work that its agency will be handling. It is expected that PPB will handle notifications on PPB cases. Thus, MCDA is anticipating handling notification of cases originating from the Multnomah County Sheriff’s Office, Troutdale Police Department, Fairview Police Department, and Gresham Police Department. 20 The policy allows for exceptions to notification if there are unique case-specific or victim-specific circumstances. Any exceptions to notification are documented in the quarterly DANY Grant reports. 21 PPB SAKI advocates will continue to handle all other notifications on PPB cases. 22 For example, in Houston, Texas, a city that had more than 6,000 untested SAKs, they prepared a victim notification policy (Complainant Notification and Information Line Protocols, 2013) that called for only notifying victims whose SAKs yielded CODIS hits. http://nij.gov/unsubmitted-kits/Pages/default.aspx. 105

DEFINITIONS:

CODIS Hit/Offender Match: When a previously unidentified forensic sample hits to an offender sample in the CODIS database. DANY refers to this as an “Offender Match”.

Forensic Match/“Case-to-Case Match”: When a CODIS database hit identifies a match between two unsolved cases, but no suspect is identified.

Consensual Partner: The individual whom the victim reports having consensual sex with close in time to the offense.

Known Offender: A suspect whom the victim named such that the full identity of the suspect is not in question.

Unknown Offender: The full identity of the suspect is in question or not fully resolved. This would include, for example, complete stranger suspects as well as suspects only known by nickname or first name.

Notification Decisions

The Work Group recognizes that whether to notify is a controversial topic. The study conducted by the Joyful Heart Foundation found that these differing opinions “appeared to stem from different philosophies about notification.”23 As recognized by the SATF’s Notification Recommendations, the national trend is to not notify victims of testing that provided negative results (i.e., no foreign DNA found).24 The study also supported the conclusion that the majority of participants “widely supported an approach that offers survivors the choice about whether and when to receive information about their cases.”25

23 Navigating Notification, p. 16. 24 Notification Recommendations, p. 2. 25 Id. at 17. 106

The Work Group concluded that various results lend themselves to three possible “notification decisions” – (1) Notify the victim; (2) Do not notify the victim; and (3) Consider notifying the victim.

If MCDA has been contacted directly by a victim who has expressed their particular notification preference, the USAK Team will make every effort to honor that request.

The following nine tables identify notification decisions broken down into categories of forensic testing results.

1. CODIS Hit to Known Offender

Case Scenarios Notify Will NOT Notify Consider Victim Victim Notification of Victim Case never presented for review by MCDA and X

Appears prosecutable with victim participation Case never presented for review by MCDA and

Does not appear X prosecutable (even with victim participation and despite the CODIS Hit and other available information)

Case Scenarios Notify Will NOT Notify Consider Victim Victim Notification of Victim

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Case never presented for review by MCDA and

Does not appear prosecutable (even with victim participation) X but

Testing result provides information which was previously unknown to victim (i.e. where/what type of sexual assault occurred) Case previously presented for review by MCDA and

MCDA previously made a decision to not issue the case but X

The testing results change that decision and

The case is still prosecutable

Case Scenarios Notify Consider Will NOT Notify Victim Notification of Victim Victim Case previously presented for review by MCDA X and

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MCDA previously made a decision to not issue the case and

Nothing about the testing results changes that decision Case previously presented for review by MCDA and

MCDA previously made a decision to not issue the case and

Nothing about the testing X results changes that decision but

Testing results provide information which was previously unknown to victim (i.e. where/what type of sexual assault occurred) MCDA previously prosecuted the case and X Testing results simply confirm the identity of the suspect

Case Scenarios Notify Will NOT Notify Consider Victim Victim Notification of

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Victim MCDA previously prosecuted the case and

Testing results provide X information which was previously unknown to victim (i.e. where/what type of sexual assault occurred)

2. DNA from Known Offender Case is Uploaded to CODIS, but no Hit Results

Case Scenarios Notify Will NOT Notify Consider Victim Victim Notification of Victim Testing results provide information which was previously unknown to victim (i.e. where/what X type of sexual assault occurred) Testing results provide no new information to victim X

3. CODIS Hit to Consensual Partner (Known or Unknown Offender)

Case Scenarios Notify Will NOT Notify Consider Victim Victim Notification of Victim Testing results match victim’s reported X consensual partner

4. CODIS Hit to Offender Other Than Who Was Previously Prosecuted (Known or Unknown Offender)

Case Scenarios Notify Will NOT Notify Consider Victim Victim Notification of 110

Victim MCDA previously prosecuted the case

and X Testing results match a different offender (not the individual adjudicated)26

5. CODIS Hit to Unknown Offender

Case Scenarios Notify Will NOT Notify Consider Victim Victim Notification of Victim Testing results yield a CODIS Hit to a previously unknown offender. This includes cases that cannot X be prosecuted due to the applicable statute of limitations

6. DNA from Unknown Offender Case is Uploaded to CODIS, but no Hit Results

Case Scenarios Notify Will NOT Notify Consider Victim Victim Notification of Victim Testing results yield a DNA profile that can be uploaded to CODIS, but X no Hit results27

7. Forensic Match (via CODIS) (Known or Unknown Offender Cases) Case Scenarios Notify Will NOT Notify Consider Victim Victim Notification of Victim

26 These results are carefully analyzed in accordance with the USAK Post-Conviction Policy prior to notifying a victim. 27 One reason to notify the victim in this scenario is that the victim may have additional information about the identity of the suspect which they gained at a later time and have not yet reported. 111

Testing results yield a DNA profile that matches another evidentiary profile in CODIS, but the profile X has not been identified to an offender28

8. DNA Result is Insufficient for CODIS Uploading (Known or Unknown Offender cases)

Case Scenarios Notify Will NOT Notify Consider Victim Victim Notification of Victim Testing results yield some DNA, but not enough for X CODIS uploading

9. No DNA29 Detected (Known or Unknown Offender Cases)

Case Scenarios Notify Will NOT Notify Consider Victim Victim Notification of Victim Testing results yield no DNA that is foreign to the X victim

Additional Considerations about the Above Notification Decisions

The Work Group agreed that it would be nearly impossible to identify every possible result scenario and thus, it expects to make additions as testing progresses. In addition, it was decided that some degree of deviation should be allowed given the particular circumstances of the case. Documentation of what was done and why will be critical (See Section VIII).

VI. CONDUCTING NOTIFICATIONS

28 Same rationale as in previous footnote. 29 This means that there is no DNA foreign the victim. 112

Research supports the importance of offering a victim the ability to opt-in or opt-out of notification and receiving information about forensic testing results and their case.30 To that end, the Work Group endorses efforts to “get the word out” using local media coverage, PSAs, etc.31

As recommended in the Joyful Heart Foundation’s study (Navigating Notification), as well as the SATF’s Notification Recommendations, providing victims with choices in how they receive their information is critical.32

Using research and national recommendations, the Work Group developed the following guidelines for how MCDA will conduct notifications:

Preferred Methods of Notification: In-Person and by Telephone

One of two methods of initial notification will always be preferable, in-person or by telephone. Which method appears most confidential and practical will depend on the current life circumstances of the victim. Those making notifications will carefully consider whether the notification can and should be conducted in-person versus by telephone. According to research, along with confidentiality, other critical components of notifications include that they be conducted in a method that is victim-centered, personal, and empowering.33

IN-PERSON NOTIFICATIONS

This method is usually seen as the most personal and caring. The downside of this method includes that many people do not appreciate unannounced visitors at their homes, and that

30 Navigating Notification, p. 21. 31 To date, members of the Work Group have participated in a few media interviews urging victims who believe they may have an untested SAK to come forward and contact law enforcement to provide direction on what information they want and how they want that information provided. 32 Id. at 22. 33 Navigating Notification, p. 23. 113

privacy may be difficult to maintain. For some victims, showing up without warning may be off-putting.

Research supports the use of a criminal justice provider and an advocate as the pair who will conduct in-person victim notifications. In Multnomah County, any in-person notification will be conducted by a detective from the LEA where the case originated with the USAK Victim Advocate (with an identified back-up if notification is time sensitive and the advocate is not available). The LEA detective should have attended the notification training that MCDA and SATF will be organizing (planned to occur in May 2016). The purpose of the training is to ensure that the detective is up to speed on trauma-informed notification practices prior to doing notifications.

Based on the circumstances of the case, MCDA’s USAK Team considers asking a previously assigned detective to assist with the notification. Considerations would include how involved the previous detective was, what the relationship appeared to be between the detective and the victim, and whether the detective is still employed by that LEA. MCDA anticipates that this will be a rare occurrence.

NOTIFICATIONS BY TELEPHONE

The plan for any notification by telephone should be one of brief introduction only. The advocate should plan on only minimally introducing the reason for the call and suggest/offer an in- person meeting to discuss the purpose of the call. The victim should be given the immediate choice of how they want to proceed (i.e., continue the conversation by telephone, meet in person, call back at a more convenient time, etc.), making clear to the victim that how the conversation proceeds is their choice. All initial notifications done by telephone will be conducted by the USAK Victim Advocate, and, whenever possible, another member of the USAK Team present as a criminal justice provider. The Work Group believes that in many

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of these initial notifications by telephone, the victim will want to know more during that call rather than set up a later meeting, so the advocate will be prepared to discuss the matter in full (just the same as would occur if the initial notification was done in-person).

Less Preferred Methods of Notification: Letter and Email/Social Media

NOTIFICATIONS BY LETTER

Notifications by letter should be seen as a last resort as it is less personal and less confidential. Regular mail versus certified mail is preferred. Should the USAK Team have to use a letter, the content would be scripted much like leaving a voice message.34

NOTIFICATIONS BY EMAIL/SOCIAL MEDIA

Similar to the use of a letter, the use of email or other social media for notifications is certainly less personal and should also be seen as a last resort. In this era of modern technology, however, these methods may actually prove most fruitful in completing that initial contact and obtaining the whereabouts of a victim.

Prior to Notification

Prior to any notification, the USAK Team does the following:

1. Reads the police reports;

2. Investigates the current location of the victim as well as the victim’s current life circumstances (for instance,

34 See more below under “Unsuccessful to Notify In-Person or By Telephone” for the use of this method.

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ascertaining whether the victim lives with the named suspect);

3. Ascertains whether the victim has a local or out-of-town residence or a working home or cell phone number;

4. Ascertains whether the victim is on social media sites;

5. Gains a full understanding of the DNA results;

6. Gains a full understanding of the case’s statute of limitations status and whether the case is potentially prosecutable;

7. If the victim was a minor at the time of the report and is now an adult, reviews the police report to see if the parent is an appropriate contact resource (in the event that difficulties arise locating the victim); and

8. Have a list of support resources ready to share if desired.

NOTIFICATION PLANS

Locally Residing Victims

For victims who live locally in a single dwelling residence, the USAK Team considers conducting the initial notification in- person. This method should only occur if safety and confidentiality can be confirmed. Otherwise, the initial notification should be done by telephone.

For victims who appear to be currently homeless and without a working phone, the USAK Team will consider conducting the initial notification in-person if the situation is conducive to confidentiality. The Work Group acknowledged that in this day of technology, it’s not uncommon for a homeless person to lack a working phone but still check email or social media, and

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therefore, these avenues of contact may provide our only options of contact.

For victims who live locally in multi-unit or shared housing (apartments, multi-family, treatment facility, shelter, etc.), the USAK Team will make the initial notification by telephone. As discussed above, this initial contact should focus on allowing the victim to decide how they want to proceed with the discussion.

Out-Of-Town Victims

This would include any victim who resides more than a one hour car ride away.

The USAK Team conducts an initial notification by telephone. As with locally residing victims, this initial contact focuses on allowing the victim to decide how to they want to proceed with the discussion. If the victim desires a meeting and is reachable by a reasonable car ride, i.e., a few hours away, the USAK Team meets with the victim in-person. If the victim wants to proceed with learning all of the information by telephone, the advocate is prepared to do that too.

Of special consideration when contacting out-of-town victims is the need to have already identified support resources which would be accessible to that victim at their current location.

Unsuccessful Attempts to Notify In-Person or By Telephone

If in-person notification was identified as the best form of initial notification, and these attempts are unsuccessful, attempts to contact at the residence will occur twice before the contact is considered unsuccessful, then notification by telephone is attempted next.

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If telephone was identified as the best form of initial notification and these attempts are unsuccessful, the advocate will leave a voice message. A message will not be left until the third unanswered call. The advocate should use a scripted message intended to maintain confidentiality, such as:

“This is Kendra, I am an advocate in Multnomah County, and I am calling regarding a case from (month/year). Please call me back at 503-988-1111.”

If a voice message goes un-returned, but a viable address exists for that victim, the USAK Team will send a letter.35 The letter, similar to the voice message, should be scripted and somewhat vague as to try to enhance confidentiality.

If the above options fail, the USAK Team considers notification attempts via email or other social media means.

VII. CONNECTING VICTIMS TO LOCAL RESOURCES

As mentioned above under “Prior to Notification,” the advocate doing the notification is prepared to share a list of resources with victims, including specific names with confirmed contact information. These resources should include local support lines and community based programs. In addition, the resources should be culturally appropriate. This will ensure that victims will have prompt access to a variety of support.

VIII. DOCUMENTING ALL NOTIFICATIONS AND ALL ATTEMPTED NOTIFICATIONS

MCDA documents all notifications and all attempted notifications.36 This is important not only to keep track of which victims the USAK Team has contacted and for DANY reporting purposes, but also because doing so will enhance the USAK

35 SATF’s Notification Recommendations provided an example of such a letter and MCDA will adopt that example. 36 MCDA will use a standard form for each notification so that we are collecting all of the same data points for each notification. 118

Team’s ability to report back on what methods worked best. If deviations are made from the policy, the USAK Team will document the reason(s).

IX. CONCLUSION

Victim notification research provides that victims want to be treated fairly and with compassion. They do not want excuses. They want information and they want choices.37 With this policy, MCDA aims to accomplish this while maintaining confidentiality and professionalism.

4.0 Plea/Sentence Negotiations

4.01 Plea Offer Policy

Absent CDDA approval, no pre-trial offer by this office will require a waiver by defendant of appellate rights, the right to post-conviction relief, including claims of inadequate assistance of counsel or other collateral remedies, or a waiver of procedural rights in probation violation hearings. This does not apply to cooperation agreements, where MCDA has established policies and protocols.

Additionally, in accordance with Senate Bill 1002 (SB 1002), no plea offer will be extended that includes any suggestion that the defendant must waive eligibility for good time, work time, SB 936 credits, Alternative Incarceration Programs, or transitional leave. Additionally, it is to be expected that opposing counsel may occasionally propose a counter-offer that will include a defendant’s willingness to waive eligibility for one of the programs or sentence reductions mentioned above. Such a counter offer must be rejected. SB 1002 states:

37 SATF’s Notification Recommendations, p. 9.

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(1) A prosecuting attorney may not condition a defendant’s plea offer on:

(a) The defendant’s waiver of:

(C) Eligibility for transitional leave under ORS 421.168;

(D) Eligibility for a reduction in the term of incarceration under ORS 421.120 or ORS 421.121 (Alternative Incarceration Programs);

(E) Eligibility for any reduction in sentence, leave or release from custody or any other program for which the executing or releasing authority may consider the defendant, including programs for which the executing or releasing authority determines eligibility and programs for which consideration must be ordered by the sentencing court under ORS 137.750.

(2)(a) A plea agreement may not contain a provision prohibited by subsection (1) of this section;

(2)(b) A prohibited provision described in subsection (1) of this section in a plea agreement is contrary to public policy and is void and unenforceable.

Language listed below should be included in every pre-trial offer that is made:

In accordance with SB 1002, this offer does not constitute, nor is it conditioned on or contingent upon defendant’s waiver of the following: The disclosure obligation under ORS 135.815(1)(g); The ability to receive the audio recording of grand jury proceedings under ORS 132.270; Eligibility for transitional leave under ORS 421.168; Eligibility for a reduction in the term of incarceration under ORS 421.120 or 421.121; or

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Eligibility for any reduction in sentence, leave or release from custody or any other program for which the executing or releasing authority, as defined under ORS 137.750(3)(a), may consider the Defendant as prescribed in ORS 137.750.

Any counter offer received in response to this offer that contains a provision proscribed by SB 1002 will be summarily rejected.

There may or may not be agreement between the parties regarding eligibility for, and the appropriateness of, sentence reducing programs. If the state agrees that such reductions are appropriate and the defendant meets statutory and rule based requirements, such a position may be stated in the written pre- trial offer. However, if the state intends to argue against eligibility for such programs, the offer must be carefully worded to reflect the state’s position.

4.02 Civil Compromise Policy

As part of our ongoing commitment to dramatically improve the fairness and effectiveness of our criminal justice system, refocus our resources on violent crimes like murder, sexual assault, and domestic violence, and handle low-level cases through alternative avenues besides prosecution, the Multnomah County District Attorney’s Office is immediately implementing the following policy concerning civil compromise in misdemeanor cases.

Oregon law permits certain misdemeanor offenses committed against private citizens to be resolved through civil compromise. Pursuant to those statutes, when an injured person indicates, in writing, to the court that they have been made whole for the damage caused by the offense, and the individual charged has paid all applicable fees and costs related to the offense and its prosecution, the court may dismiss the

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misdemeanor charges filed against the defendant and bar future prosecution of the case.

Going forward, we will accept these negotiated resolutions to misdemeanor cases, as long as they are not the result of , , or misrepresentation and do not incorporate legally unenforceable terms. We believe that, by doing so, we can promote alternative resolutions to low-level offenses, reinforce our commitment to listening to and crediting the perspective of crime victims, and preserve office resources for the investigation and prosecution of serious crime.

Our civil compromise policy is as follows:

When a civil compromise is negotiated between a victim and an individual charged with an eligible misdemeanor, our attorneys will not object to the court’s acceptance of it and dismissal of the charges unless there are articulable facts suggesting the presence of any of the following:

 Fraud, coercion or misrepresentation. Any articulable suspicion that a victim lacks competency to agree to a civil compromise or has been provided with misinformation is an immediate basis for objection.

 Failure to show full satisfaction of compromise remuneration. If the satisfaction guaranteed in the compromise consists of unenforceable future conduct or other terms, actions or conditions not yet fully realized at the time of case resolution, there will be an objection to the compromise.

 Granting of a prior civil compromise. The remedy of civil compromise is not appropriate for a defendant who has already been granted a dismissal on this basis at any time, on any other case in any court of competent jurisdiction.

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 On supervision at the time of the offense. A defendant who is on supervision at the time of the new offense should not be granted a civil compromise.

 Significant or serious criminal history. A defendant who has engaged in chronic criminality or who has committed a person felony of any kind should not be granted a civil compromise. Class C property felonies or misdemeanors are not categorically disqualifying if the previous conviction is not recent (older than ten years) and the defendant’s performance on probation was strong. A defendant who has committed multiple offenses of any kind within the last five years should not be granted civil compromise.

 Sex Offenses. An indication in the case facts that there has been touching or attempted touching of sexual or intimate parts, threats of a sexualized nature, or that the offense was committed for the sexual gratification of the defendant should not qualify for civil compromise.

Exceptional circumstances which suggest the need to either support a civil compromise despite the presence of an above factor or the need to oppose a civil compromise for a reason not listed above can support discretionary departure from this policy with SDDA Approval.

4.05 Second Look Policy

Under ORS 420A.203, offenders in the legal custody of the Department of Corrections and the physical custody of the are eligible for a second look hearing to consider a conditional release into the community if they were under age 18 when they committed their crime and received at least a 24-month sentence after waiver into adult court. Those offenders serving a sentence under ORS 137.707 Ballot Measure 11 are not eligible for a second look hearing. If a juvenile Ballot Measure 11 offender is convicted of a lesser-

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included offense instead of the Ballot Measure 11 crime, that offender can be eligible for a second look hearing.

For the last several years offenders in Multnomah County have waived their right to a second look hearing as part of the plea negotiation process. Conversations, initiated by the Multnomah County District Attorney’s office, have occurred with the Oregon Youth Authority (OYA) leadership beginning in early 2013 to explore ways to improve the second look process. As a result of those conversations, OYA has updated and improved the packet of information forwarded to the court for a second look hearing. Consequently, the Multnomah County District Attorney’s office has revised its second look policy, outlined below.

Non-Eligible Crimes

Defendants who are indicted or indictable for the following list of crimes will not be eligible for second look consideration as part of the plea negotiation process:

 Murder; Attempt or Conspiracy to Commit Aggravated Murder; Attempt or Conspiracy to Commit Murder; in the First and Second Degree; and Aggravated Vehicular Homicide;

 Assault in the First Degree;

 Compelling ;

in the First Degree;

 Rape in the First Degree;

 Rape in the Second Degree;

in the First Degree;

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 Unlawful Sexual Penetration in the First Degree;

 Unlawful Sexual Penetration in the Second Degree;

in the First Degree;

 Sodomy in the Second Degree;

 Using a Child in the Display of Sexually Explicit Conduct.

Eligible Crimes

Eligibility for second look consideration as part of a plea agreement to a lesser-included offense is restricted to those defendants where the only indicted or indictable crimes are:

 Sexual Abuse in the First Degree based upon the victim being under a specified age;

 Assault in the Second Degree;

in the First Degree;

 Robbery in the Second Degree; and

 Kidnapping in the Second Degree.

Case and Offender Factors

A. Mitigating Factors:

If the indicted or indictable crimes fall into the eligible category, plea negotiations that allow for a second look hearing following a plea to a lesser-included offense will only be considered after careful review of the factors listed below.

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This is a non-exclusive list recognizing that cases and offenders are unique and may present with unforeseen mitigating information.

 The offender’s criminal history is minor with no prior felony convictions or misdemeanor person crimes as an adult or juvenile;

 The offender acted under a form of duress;

 The offender’s mental capacity was diminished. This diminished capacity does not substantially affect the offender’s amenability to treatment;

 The degree of harm or loss was significantly less than typical;

 The offense was principally accomplished by another;

 The underlying behavior of the victim substantially contributed to the offense by precipitating the attack;

 The offender presents information indicating amenability to treatment. For example, a psychosexual evaluation and a full disclosure polygraph indicating defendant is amenable to treatment;

 There is only one victim charged and there is no credible evidence of any additional victims. Defendant presents information, such as a full disclosure polygraph, supporting that there are no additional victims;

 The criminal conduct did not expose the victim to any health risks, such as a sexually transmitted disease;

 There is no diagnostic evidence of sexual abuse demonstrating physical injury to the victim;

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 The offender is cooperating with the state, including accepting responsibility by admitting the offender’s criminal conduct.

B. Aggravating Factors:

Countervailing factors that indicate the allowance for a second look hearing may not be appropriate include, but are not limited to the factors listed below. This is a non-exclusive list recognizing that cases and offenders are unique and may present with unforeseen aggravating factors.

 Deliberate cruelty to victim;

 Permanent injury to victim;

 Offender motivated in part by victim’s race, color, religion, ethnicity, national origin or sexual orientation;

 Degree of harm or loss was significantly greater than typical;

 Offender exploited a particular vulnerability of the victim, such as extreme youth, old age, disability, etc. Where the charge is Sexual Abuse in the First Degree, there is a significant age spread between the offender and the victim;

 Offender violated a public trust or professional responsibility;

 Offender has demonstrated persistent involvement in similar offenses or repetitive ;

 There were multiple incidents and or multiple victims;

 Offender has a concerning mental health history indicating

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risks to the community or non-treatability;

 Offender denies the offender’s criminal conduct;

 Offender does not forward any information demonstrating amenability to treatment.

Victim Input and Consultation

Consistent with the Oregon Constitution and the philosophy of the Multnomah County District Attorney’s office the assigned DDA shall solicit input from the victim and consult with the victim during the plea negotiation process.

Final Decision

The final decision on whether the state will agree to participate in a second look process in a given case rests with the informed discretion of the District Attorney. Cases which appear to meet criteria announced elsewhere in this document may nonetheless be inappropriate for second look for reasons which will be articulated, and which may differ from the criteria listed in this document.

Content of Offer

If the pretrial offer allows for second look consideration, the offer shall specify the following:

 That at the second look hearing the defense shall present to the court a proposed detailed plan for the defendant’s transition from the defendant’s custodial setting to the community. Such a plan will include where defendant will reside; what treatment programs the defendant will be participating in; when that treatment will commence; and what other services will be in place to meet the defendant’s needs as identified in the second look report;

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 The DDA shall list anticipated post-custody conditions should the defendant be granted release by the court. For example, the sex offender package should be listed for a sex crime case;

 The offer shall specify that the victim has the right to be present and to be heard at the second look hearing.

4.06 Juvenile Waiver to Adult Court Policy

Pursuant to SB1008, that among other things, amends ORS 419C.349, there are two categories of cases that may be waived into adult court by the juvenile court:

• Category 1: Pursuant to ORS 419C.349(1)(a) crimes enumerated under ORS 137.707 (juvenile BM11 crimes) and aggravated murder. Within this category are Tier I offenses and Tier II offenses.

o Tier I offenses include: Assault in the First Degree, Attempted Aggravated Murder, , Aggravated Murder, Murder, Kidnapping in the First Degree, Rape in the First Degree, Sodomy in the First Degree, Unlawful Sexual Penetration in the First Degree, Compelling Prostitution, Using a Child in Display of Sexually Explicit Conduct, Robbery in the First Degree, Manslaughter in the First Degree and Second degree, Arson in the First Degree with Threat of Serious Injury, Conspiracy to Commit Murder and Conspiracy to Commit Aggravated Murder.

o Tier II offenses include: Robbery in the Second Degree, Rape in the Second Degree, Assault in the Second Degree, Kidnapping in the Second Degree, Sodomy in the Second Degree, Unlawful Sexual Penetration in the Second Degree and Sexual Abuse in the First Degree.

• Category 2: Pursuant to ORS 419C.349(1)(b) included 129

crimes are non-BM11 Class A/Class B felonies and the following Class C felonies: Escape in the Second Degree, Assault in the Third Degree, Coercion, Arson in the Second Degree, Robbery in the Third Degree and any Class C felony in which the youth used, or threatened to use, a firearm. Further, per ORS 419C.349(1)(b)(D), also subject to potential waiver by the court is any other crime that the State and youth stipulate to waive into adult court.

Factors to consider when determining whether to file a motion requesting a waiver hearing seeking a from juvenile court to adult court include but are not limited to:

1. The seriousness of the offense;

a. All degrees of Murder, Attempted Murder and Manslaughter, except in exceptional circumstances, will require a motion requesting a waiver hearing;

b. Tier I BM11 cases will require a motion requesting a waiver hearing unless other factors indicate a different result is appropriate;

c. Tier II BM11 crimes and Category 2 crimes will remain in juvenile court, unless other factors indicate a motion requesting a waiver hearing is appropriate;

2. Whether the offense was committed in a premeditated or willful manner, and or was exceptionally violent or aggressive;

3. The impact and input from the victim to include vulnerability, wishes and position of the victims(s);

4. The gravity of the loss, damage or injury caused or attempted during the offense;

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5. Protection and safety of the community;

6. Whether, in the interest of justice, the potential sentence is proportional to the offense and other relevant factors;

7. The history of the juvenile offender (see items 8 and 9 below), including whether or not the juvenile offender has consistently demonstrated that the unique jurisdiction of the juvenile court and programs will/will not ameliorate their criminal behavior;

8. Prior delinquency history factors to include;

a. Youth previously committed to OYA and paroled are presumed to have had the benefit of OYA jurisdiction;

b. Youth with prior violent person felonies that have had prior out of home placements or treatment;

c. Youth who have failed to cooperate with, or take advantage of, services offered while on probation;

d. Youth engaged in sophisticated or repeated criminal activity.

9. Prior Treatment or Services offered by JSD, OYA, DHS or others;

10. Whether or not the juvenile justice system, due to possible alternatives and or the availability of less punitive alternatives, is more or less likely to safely achieve rehabilitation of the offender than the adult system;

11. Age of the youth at the time of the commission of the offense and whether the youth, at the time of the

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offense, was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved; and

12. The physical, emotional and mental health of the youth.

The DDA shall consider these factors in determining whether to file a motion to request a waiver hearing. Any initial waiver decision may be reconsidered at a later date, should further facts or circumstances develop.

The process for making these determinations is as follows:

When a case referral is received from law enforcement for crimes enumerated in ORS 137.707 (BM11), the assigned DDA shall review the case and determine the appropriate charge. The assigned DDA shall then consult with the SDDA in their unit, and if different, the SDDA in the Juvenile Unit, where the decision to request a waiver hearing involves exceptional circumstances or other factors that affect the waiver decision per policy. Note: given juvenile statute time limits, initial decisions about charging and waiver must be made as soon as practicable.

If there is a recommendation by the assigned case DDA, the consulted SDDA and CDDA, all supporting the filing of a motion requesting a waiver hearing, the case shall be reviewed and approved, by the District Attorney or his designee. Further, the District Attorney or his designee shall review and determine whether to file a motion requesting a waiver hearing in cases involving all degrees of Murder, Attempted Murder and Manslaughter with input as outlined above.

4.10 Criminal Case Resolution

A. General Philosophy

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The Multnomah County District Attorney’s Office will conduct its plea negotiation efforts in a professional, nondiscriminatory and nonpartisan manner. In all plea negotiations this office shall be guided by the relevant constitutional, ethical and statutory considerations.

B. Non-reducible Charges

It is the policy of this office that the following adult felony crimes will not be the subject of charge reduction plea bargaining (NOTE: Ballot Measure 11 offenses are covered in section I):

1. I; except in Domestic Violence;

2. Delivery of Heroin, LSD, PCP; or Methamphetamine;

3. Supplying Contraband;

4. Escape I;

5. Escape II;

6. Felon in Possession of a Firearm;

7. Unauthorized Obtaining of Public Assistance;

8. Promoting Prostitution (unless the promoter is also a prostitute and the promotion was incidental to an act of prostitution);

9. Failure to Appear I.

C. Exceptions

We recognize that there will be times when it is in the interest of justice to reduce one of the non-reducible

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charges. Such reductions must be approved by a CDDA of the affected division, the First Assistant to the District Attorney, or the District Attorney.

In all homicide cases, the District Attorney shall be notified of and approve any plea offer that may be accepted. The trial DDA shall make this notification through their CDDA prior to tendering the plea offer to the defendant. Prior to arriving at a homicide plea offer, the trial DDA should, in all but exceptional circumstances, inform and consult with the primary and the family of the victim as to the appropriateness of the offer and any opinions or suggestions they may have.

D. Sentence Negotiations, Dismissal, and Non-Prosecution

DDAs will retain the discretion to negotiate dismissals, non- prosecution, and sentencing recommendations in all cases subject to the general standards for plea agreements.

E. Equality of Plea Negotiation

Similarly situated defendants shall be afforded equal plea and sentence agreement opportunities. While obvious, the choice of defense counsel or social or economic status shall not be a factor in a trial DDA’s decision to negotiate with a defendant. A defendant shall not receive advantage or disadvantage in negotiations based upon past or present relationships between defense counsel and this office.

F. Criteria for Determining Appropriateness of Plea Negotiation

An examination of the offense and the offender shall guide negotiations. However, we must treat similarly situated defendants the same throughout the office. Particular factors that may be considered include, but are not limited to:

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1. The nature of the offense;

2. The degree of the offense charged;

3. Aggravating and mitigating circumstances;

4. The expressed wish of the victim;

5. Relationships between the accused and the victim;

6. Collateral consequences to the accused. If the case DDA becomes aware of anticipated significant and exceptional collateral consequences that may result from a negotiated plea agreement, the DDA will follow the guidelines in Section (G) below.

7. The age, background and of the accused;

8. The attitude and mental state of the accused at the time of the plea discussion;

9. The age of the victim;

10. The sufficiency of admissible evidence to support a verdict;

11. Undue hardship caused to the victim or the accused;

12. The deterrent value of prosecution;

13. Aid to other prosecution goals through non-prosecution;

14. A history of non-enforcement of the statute involved;

15. The age of the case;

16. Possible improper motives of a victim or witness;

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17. Likelihood of prosecution in other jurisdictions; and

18. Restitution.

G. Collateral Consequences

The Multnomah County District Attorney’s office is committed to the open and balanced administration of justice, one that honors and respects diversity in all of its forms. A primary concern of the District Attorney’s Office is to support and ensure crime victims are afforded a meaningful role in the criminal and juvenile justice system and to do so with dignity and respect. Further, the Multnomah County District Attorney’s Office will treat everyone that comes into contact with this office fairly and equitably.

This office recognizes that in certain situations the collateral consequences of a particular criminal conviction for a particular defendant can have disproportionate results. Criminal conviction brings with it a host of sanctions and disqualifications that can sometimes place an unanticipated burden on individuals in the community or trying to re-enter society and lead productive lives. The cases this office handles are complex and justice would be ill-served by an inflexible or proscriptive rule. To ensure equitable resolution of criminal cases, DDAs shall consider the following when deciding how much weight, if any, potential collateral consequences should have in plea negotiations.

1. When negotiating the resolution of a criminal case, DDAs shall consider collateral consequences as one factor along with relevant factors found in F above and:

a. the facts of the case;

b. aggravating factors;

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c. mitigating factors;

d. the thoughts, concerns, and wishes of the crime victim(s);

e. a defendant’s treatment needs, if any; and

f. criminal history as it relates to:

i. risk of ;

ii. public safety and the protection of the community; and

iii. the likelihood of successful rehabilitation.

2. In cases where the collateral consequences of a criminal conviction are significantly and exceptionally disproportionate to the direct punishment appropriate for the defendant’s conduct, the interests of justice may require the DDA to make reasonable efforts to mitigate those consequences through the plea negotiation process.

3. It is incumbent on a prosecutor to seek equitable resolutions of cases. This means, if a DDA agrees to mitigate a charge or a sentence based on collateral considerations, the DDA should ensure that the totality of the resolution is comparable when analyzing victim input and impact, risk of recidivism, the treatment needs of the defendant and use of punitive sanctions as between a defendant facing collateral consequences and an otherwise similarly situated defendant who does not face collateral consequences.

4. If a defendant is charged with a serious felony offense, to include any crime listed in ORS 137.700(2) or ORS

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137.635(2), any modification due to potential collateral consequences is presumptively inappropriate.

5. We recognize that it is difficult for this office to independently assess the likelihood that certain claimed collateral consequences will manifest. The solution, consistent with Subsection (3) of this section, is to not alter charges or procedure as mitigation, but to correspondingly consider an increase, when appropriate, to the sanction component of the sentence (incarceration, community service, probation, etc.) to assist in balancing the competing interests. In addition to maintaining a rough parity between a collaterally affected defendant and one not so affected, it is unlikely that a defendant would accept such an offer unless they were facing the claimed collateral consequence. Where appropriate and useful to the decision making process, a DDA should require independent proof from a source other than the defendant that the claimed consequence will occur as represented.

6. Collateral consequences are of varying levels of severity and should not all be weighed the same. Consequences that are normal outcomes of a criminal case, including all matters directly ordered by the court, such as prison, probation, jail time, fines, driver’s license suspensions, or sex offender registration, are not “collateral consequences” within the meaning of this policy.

7. All decisions to mitigate based on collateral consequences, or not mitigate after such is requested, shall be documented by the DDA in the case file and require SDDA or CDDA approval if they depart from existing policies.

H. Special Considerations

DDAs should always attempt to contact the victims of crimes and inform and explain the status and nature of any negotiations. In the exercise of the discretion to negotiate, 138

the DDA in charge of the case should strongly consider the victim’s wishes.

DDAs shall not imply a greater power to influence the disposition of the case than is actually possessed. If the DDA is unable to fulfill a plea agreement, the DDA will give notice promptly to the accused and cooperate in securing leave of the court for withdrawal of any plea and other remedial steps necessary to restore the original positions of the parties before plea negotiations.

All plea negotiations shall be made part of the court record for and it will be the responsibility of each DDA to record in the case file the circumstances and reasons for a plea negotiations.

Most importantly, all DDAs of this office shall be alert for cases where the accused is innocent or proof falls below the beyond a standard of the offense(s) charged. If such is discovered, the victim and police investigator will be contacted and then dismissal will be sought immediately.

I. Victim Considerations

In conducting negotiations, the trial DDA shall consider the circumstances and attitude of the victim and witnesses, including the following:

1. The extent of injury to the victim;

2. Economic loss incurred by the victim;

3. Victim/witness availability; and

4. Victim/witness physical or mental impairment that would affect their testimony.

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J. Felony Minimum Sentence Plea Policy

All plea offers on Felony cases with minimum sentences, including but not limited to, Ballot Measure 11, Ballot Measure 57, Ballot Measure 73, Aggravated Vehicular Homicide per ORS 163.149, Gun Minimums under ORS 161.610, and Dangerous Offender under ORS 161.725 et seq., will be reviewed with the appropriate SDDA and CDDA prior to plea or trial. The CDDA, the First Assistant to the District Attorney or the District Attorney must approve any such offer to be made or received.

4.11 Timing of Plea Negotiations in Felonies

In all felony cases, after a case is assigned out for trial, there shall be no plea offer or plea agreement without the specific approval of the SDDA of the unit or the appropriate CDDA, or, if the SDDA and the CDDA are unavailable, the First Assistant to the District Attorney or the District Attorney.

4.13 Cooperating Witness Protocol

A Cooperating Witness (CW) is a witness who enters into an agreement with the District Attorney’s office to provide truthful information and evidence that may be used in a criminal investigation and receives a benefit for their cooperation.

Cooperating witnesses who have information and evidence concerning a pending criminal case are important contributors to many law enforcement investigations. With careful evaluation and oversight, the use of such witnesses is a valuable enhancement to public safety and the pursuit of justice for victims.

A CW may be called to testify as a state’s witness in a criminal proceeding if, in the informed professional judgement of the

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case DDA, the witness can provide competent and truthful testimony based on personal knowledge of the matter to which the CW intends to testify.

A case DDA must receive SDDA approval before entering into a cooperation agreement with a CW.

Once the case DDA has entered into a cooperation agreement, it is that DDA’s responsibility to flag the CW as a cooperating witness for the instant case in the DA case management database (CRIMES/Attorney Manager) to give notice to DDAs who may use this witness in the future that the witness was a CW in the instant case. The case DDA will then forward a copy of the cooperation agreement to the Felony Trial Unit Operations Supervisor, who is responsible for archiving such agreements in a central location.

Whenever a DDA adds a civilian witness to a criminal case it will be that DDA’s responsibility to check to see if that witness has been flagged as a prior CW. If the witness has been flagged as a prior CW, the DDA will obtain and review the archived prior cooperation agreement to determine if any of the archived materials are discoverable to the defense.

If a DDA determines that a CW has made materially false statements about, or during the pendency of, the instant case, the DDA will evaluate this for potential disclosure to the defense and to any tribunal before which the CW may have testified. The DDA will also, after consultation with the SDDA, take whatever remedial measures are necessary to address the false statements. If appropriate, and in consultation with the SDDA, the DDA will write a memorandum describing the circumstances of the false statements and forward that memorandum for archiving with the CW’s cooperation agreement. This memorandum may, in consultation with the SDDA, also be forwarded to the defense and or the court.

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4.15 Proffers

There will be occasions when it will be necessary for a person to enter into a proffer with our office. A proffer usually comes in the form of a person being interviewed about relevant knowledge the person may have in anticipation that the person will be entering into some kind of a cooperation agreement with our office. Normally, the person will be represented by counsel, although that is not always the case. It is frequently wise to have a written understanding before such interviews take place. Any material deviation from the proffer letter below must be approved by a CDDA or the First Assistant to the District Attorney. This generic proffer letter is intended to be reviewed and signed before the interview takes place and is not intended to replace the formal “cooperation agreement” that would be signed by the parties regarding the specifics of the particular case after the interview(s) are concluded.

4.17 Guidelines for Use of Testifying Informants

Certain criminal investigations may require the use of testifying informants. While the selection and control of such informants is ultimately the responsibility of the investigative agency handling the informant, it is nonetheless the additional responsibility of the District Attorney’s Office to be apprised of informant’s backgrounds. Absent extraordinary circumstances, informants who have been arrested or convicted of violent person felony crimes or sexual offenses should not be used as testifying informants. The District Attorney’s Office expects that police agencies employing testifying informants to provide the following information:

1. A full criminal history of the informant including arrest history;

2. Police reports for any felony person crime or sexual offense;

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3. Any information regarding prior use as an informant;

4. Any pending criminal investigations of the informant;

5. Any promise of consideration for the informant;

6. Any current or previous investigations in which the informant participated;

7. Information regarding the stability of the informant including housing, employment and family ties to the local community;

8. Any information regarding mental illness or substance abuse;

9. Any information regarding known or suspected gang affiliations;

10. Any information regarding racial bias of the informant;

11. Any information regarding tattoos of the informant and their suspected meaning;

12. Any information regarding the informant’s association or acquaintance with intended targets of the investigation(s);

13. Any information regarding prior corroboration of information previously supplied by informant;

14. Any information regarding danger the informant may pose to the community along with any safety plan designed to mitigate these dangers;

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15. Any information regarding danger the informant may be subject to due to the contemplated investigation(s) along with any safety plan designed to mitigate these dangers.

A police agency seeking to utilize a testifying informant shall advise the SDDA of the appropriate trial unit prior to using the informant and provide the background information listed above for review and approval. The Multnomah County District Attorney’s Office may decline to use a testifying informant when their value in a criminal investigation appears to be outweighed by other factors, including the informant’s criminal history. Certain information regarding an informant may be disclosed to the defense pursuant to statutory discovery obligations.

4.18 Unauthorized Use of a Vehicle (UUV) and Possession of a Stolen Vehicle (PSV) Policy

Plea Offer Guidelines

Currently, absent exceptional circumstances, approved by the CDDA, a Defendant shall not receive a probation offer from this office in the following circumstances:

 The Defendant has a UUV/PSV conviction within the last five years;

 The Defendant has two prior UUV/PSV convictions in a lifetime;

 The Defendant has zero prior UUV/PSV convictions but is currently charged with three or more UUV/PSVs.

Professional judgment regarding the length of prison term offered on a case will continue to be analyzed using the MCJRP PAVRON model including, but not limited to, information

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provided by the crime victim(s) and any aggravating and mitigating circumstances.

Probation Violation Guidelines

Absent exceptional circumstances, approved by the CDDA, MCDA will litigate allegations of Failure to Obey All Laws, for appropriate charges, at a probation violation hearing and advocate for sanctions, to include revocation of probation, when a defendant:

 Is currently on supervision for UUV/PSV;

 Is on a downward departure to probation or otherwise subject to ORS 137.717;

 Is arrested for a new UUV/PSV offense that was declined for prosecution; and

 Sufficient evidence exists to prove an allegation of Failure to Obey All Laws by a preponderance of the evidence.

4.19 Earned Discharge and Early Termination Policy

Earned Discharge

The Department of Community Justice (DCJ) has the statutory authority under ORS 137.633 and OAR 291-209-0040 to authorize earned discharge of supervision for probationers who qualify. For certain classes of cases, the parties have agreed that prior to granting an earned discharge, DCJ will provide an earned discharge eligibility notice to the state and court. Those cases include:

 Any Person Felony;

 Burglary in the First Degree;

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 Felon in Possession of a Firearm; or

 Cases that are MCJRP eligible.

In such cases the state will have, as a part of plea negotiations, required the defendant to agree to court and prosecution review of their eligibility for a reduction in the period of probation supervision, earned discharge, under ORS 137.633 and OAR 291-209-0040.

Once a notice of eligibility has been filed, the state and the court will have 10 business days to raise any objections or concerns with DCJ. If no response occurs within that timeframe, there is a presumption of “no objection” to earned discharge. A judicial hearing may be requested if the parties are unable to resolve their disagreements about the earned discharge. In such cases the court will decide if an earned discharge is to be granted.

When exceptional circumstances exist, a CDDA may approve a plea offer on a case involving the condition of “no earned discharge.”

Early Termination of Probation

The court retains the authority to discharge a defendant’s probation, grant early termination, under ORS 137.545.

On all cases involving DCJ supervision where an early termination request is made to the court, DCJ will provide written notice to the court and state. The state will request a judicial hearing 14 calendar days from the notice date on all early termination of probation requests. However, if a deputy district attorney and the supervising judge agree that early termination of probation is appropriate, the hearing may be

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cancelled and the court may discharge the defendant’s probation without a hearing.

When exceptional circumstances exist, a CDDA may approve a plea offer on a case involving the condition of “no early termination of probation.”

4.20 Misdemeanor Cases

A. General Philosophy

It is the responsibility of each DDA to become familiar with the plea negotiation policy for all adult offenders as set forth in Section 4.10 of this manual. Many of the policies stated in that section are relevant to the plea practices in Misdemeanor Court.

B. Plea Guidelines – Misdemeanor Crimes

It is the policy of this office that the following misdemeanor crimes will not be subject to plea bargaining by charge reduction:

1. Resisting Arrest;

2. Failure to Appear in the Second Degree;

3. Prostitution;

4. Unlawful Prostitution Procurement Activity;

5. DUII;

6. Unlawful Possession of a Firearm;

7. Cases on day of trial.

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It may be appropriate in certain circumstances to dismiss a non-reducible charge, except for a DUII, for a plea to another charge. In such cases, the crime pleaded to must accurately reflect the danger which the defendant poses to the community and carry adequate sanctions. Further, there will be the rare instance when a reduction is appropriate in the interests of justice or when analyzing the case factoring in other policies such as the collateral consequences section. This reduction may occur only with the authorization of the appropriate CDDA or the designee.

4.30 Electronic Surveillance Orders

This District Attorney must personally approve authorizations for wiretaps and eavesdropping applications under ORS Chapters 133 and 165. All inquiries concerning these matters should initially be directed to the CDDA of the affected unit or the First Assistant to the District Attorney, who will in turn present the matter to the District Attorney. If the District Attorney is unavailable then the CDDA or First Assistant to the District Attorney may authorize such application. The CDDA or First Assistant to the District Attorney shall notify the District Attorney as soon as practical of such action. All electronic surveillance orders will be entered in an electronic surveillance log and a filing deadline sheet will be filled out for each order. The DDA in charge of the surveillance will be responsible for meeting each of the deadlines required.

4.40 Grants of Immunity

In order to appropriately secure a conviction, it is sometimes necessary to grant full, or “formal,” immunity to people who are participants in criminal activity. The granting of immunity should be done carefully and cautiously. This is a very serious matter in which the need for the testimony must be balanced against not charging the proposed immunity recipient for their

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criminal conduct. Before offering anyone immunity, the following procedures must be considered.

A. Statutory Immunity and Compelled Testimony

ORS 136.617 and ORS 136.619 set forth the only statutory basis for compelling testimony in Oregon. It was an attempt by the legislature to codify State v. Soriano, 68 Or App 641 (1984), affirmed 298 Or 392 (1985).

Authorization for formal grants of immunity is reserved by statute to the District Attorney. Only under limited circumstances will the District Attorney grant a person full immunity for crimes they commit. All inquiries concerning these matters should be initially directed to the divisional CDDA or the First Assistant to the District Attorney, who in turn will present the matter to the District Attorney. Such a request should be presented at the earliest possible time.

A DDA requesting an authorization of statutory immunity must notify the District Attorney in writing.

B. Contractual Immunity

Contractual immunity can occur when a person agrees to testify at grand jury, trial, sentencing, or other proceedings in exchange for a benefit, usually a DDA’s promise to dismiss a charge(s), to not bring charges, to allow a plea to a reduced charge, or to allow a plea and or dismissal of other charges. Contractual immunity is binding on the prosecution. When the agreement becomes binding on the prosecution depends upon the terms of the . Absent extraordinary circumstances, it should only be binding on the state when the witness has fulfilled all of the witness’s obligations.

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The advantage of contractual immunity is that the DDA can control the understandings and obligations forming the basis of the contractual immunity. The agreement must be in writing and precisely state the agreed-upon conditions. Ambiguities must be avoided, as the terms of the agreement will be strictly construed against the State.

For all person crimes and significant non-person crimes, before agreeing to any contractual immunity agreement, a DDA must receive approval from the CDDA in charge of their division, or the First Assistant to the District Attorney. For most non-person crimes, the DDA must obtain the approval from a SDDA in their unit.

The following is list of conditions that generally will be included in a contractual immunity agreement:

1. A statement that it only covers those crimes specifically listed.

2. A statement that all terms, including changes, must be in writing and signed by all parties. It should state that it is the “exclusive recital of the terms.”

3. The specific nature of the information and crimes that the witness agrees to testify and or debrief about, including a recitation of persons against whom the witness shall testify, or debrief about.

4. A statement that the witness is subject to .

5. The circumstances under which the agreement will be deemed to have been breached. Included in this should be new crimes, perjury, and failure to completely satisfy every requirement of the agreement. Substantial compliance is not acceptable.

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6. A statement as to who will determine whether there has been a breach. Absent compelling reasons, this should be reserved to the court.

7. A statement as to the duration of the agreement. Normally, this will include trial, appeals, post-conviction, and re-trials.

8. If a is part of the contract, the agreement should set out its terms. In addition, the agreement should be very specific about the effects of a breach by the defendant. Reference should be made to section 4.13 of this manual; “Cooperating Witness Protocol.”

9. A statement of the specific obligations of the witness. Examples are:

a. To truthfully provide complete and detailed information.

b. To provide all information known;

c. To name names;

d. To make and record phone calls;

e. To wear recording devices;

f. To introduce informants or undercover officers to other suspects;

g. To cooperate, use best efforts, and testify;

h. To take, complete and pass a polygraph that will be given by the police.

C. Factors to Consider Before Granting Immunity

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The District Attorney’s Office will evaluate a proposed contractual immunity agreement applying these non- exclusive factors:

1. Is the witness necessary for conviction?

2. Are there other means of securing the information?

3. The witness’s role in the offense compared to other participants.

4. The witness’s prior criminal record and criminal activity in comparison to other defendants.

5. The witness’s cooperation and willingness to aid early in the investigation and or prosecution.

6. The witness’s willingness to give full disclosure of the present offense and other related criminal activity.

7. The witness’s believability and willingness to take, complete, and pass a polygraph examination on the information they provided.

8. The witness’s willingness to provide a complete and truthful sworn statement prior to the grant of immunity.

9. If the witness was not involved in the present offense, the District Attorney will consider the seriousness of the present offense in comparison to those offenses that will be dismissed or reduced.

10. Any other relevant factor that warrants the granting of immunity.

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4.50 Mental Disease or Defect Defense

It is the office policy that no DDA shall enter into a stipulation that a person is guilty except for insanity. This policy does not preclude, with approval of the appropriate CDDA, a stipulation to the facts of the case and any medical reports, but the ultimate decision in such a matter is to be made by the judge.

In misdemeanor cases, all negotiations resulting in a finding of guilty except for insanity must be personally approved by the SDDA in charge of misdemeanor trials. No case should be dismissed, nor should any concessions be made or stipulations be entered into, unless they have first been cleared through the SDDA in charge of misdemeanor trials or a CDDA.

4.60 Joinder

It shall be the policy of the Multnomah County District Attorney’s Office to charge and try defendants jointly under ORS 136.060 whenever possible and reasonable in light of the needs of the case and the victim. It shall also be the policy to join charges against the same defendant under ORS 132.560 if the offenses are of a similar character, based on two or more acts connected together or constituting parts of a common scheme or plan, or based on the same act or transaction.

The District Attorney believes that this is in the best interest of the community in that it maximizes the efficiency of the court system and minimizes the ordeal of criminal proceedings on victims.

It shall be the obligation of the DDA to move to consolidate charges and indictments if the DDA knows that there are joinable offenses under ORS 132.560.

There are rare occasions where joinder of defendants is not appropriate, i.e., 60-day problem if defendants are joined. In

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those cases where no objection will be made to severance, the DDA should first contact either the CDDA or the First Assistant to the District Attorney before a final decision is made.

Plea Negotiation in Domestic Violence Cases

Domestic violence cases will not be subject to dismissal pursuant to plea negotiations in other non-domestic violence cases except in those certain circumstances where dismissal is deemed warranted. In those cases, the SDDA for the DV Unit, the CDDA of the Family Justice Division, or the First Assistant to the District Attorney must approve such negotiations. However, if two or more domestic violence cases are pending, one or more may be dismissed pursuant to a plea on one or more domestic violence cases.

4.70 Out-of-State Warrant Cases

Many defendants currently residing outside of the state of Oregon have Oregon warrants for their arrest. Most of these cases are not designated for full NCIC warrant service, meaning that Oregon will not pay for the of the defendant to the state of Oregon should they be arrested outside Oregon or outside of the western states shuttle system.

The federal government is now enforcing a federal law, which prohibits payments from the federal Supplemental Security Income (SSI) program to any person with outstanding unresolved warrants for their arrest. This has prompted requests from defendants residing outside of Oregon for our office to resolve cases against them where warrants prevent them from receiving SSI payments. These requests have been made directly to our office or to the circuit court, which has referred them to our office.

The following is the position of our office in resolving these matters:

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A. Indictment or initial cases:

Where a defendant has an outstanding warrant which initiates criminal charges, such as an indictment warrant or misdemeanor arrest warrant, the file will be routed to the case DDA or the successor to that DDA in the appropriate unit. If the case can no longer be tried, or if speedy trial or statute of limitation problems will result in a dismissal, the case should be dismissed and the warrant lifted. If the case can be successfully prosecuted the defendant should be notified to return to the state of Oregon to resolve the matter. If the matter can be resolved by an out-of-state mail plea to a misdemeanor that option can be presented to the defendant only if the plea offer is consistent with treatment afforded defendants who reside in Oregon. Terms of a mail plea offer may be presented to a defendant by a DDA, but no advice should be provided to the defendant about the advisability of the plea or its terms. In no mail plea situation will our office assist defendants with outstanding warrants in obtaining court-appointed counsel here in Oregon.

B. warrant cases:

Defendants who have left the state of Oregon after failing to appear at a court proceeding will not have their cases dismissed and will not be allowed to plead guilty by mail. When a case of this nature arises, it will be referred to the case DDA who will review it to determine if it can be tried and if statute of limitations or speedy trial problems will result in a dismissal. If so, the file should be so noted and the case dismissed following review and approval of the unit SDDA.

In this type of case, no plea negotiation will be permitted which does not include the defendant returning to the state of Oregon to resolve their case. If, as in most cases, the

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defendant had previously had court-appointed counsel before they failed to appear, that attorney should be contacted. Direct discussions with the out-of-state defendant should be avoided. Again, no plea offer will be made that is not consistent with the way in which similar cases are treated for defendants who have remained in the state.

4.71 Request for Dismissal of Arrest Warrants

When this office receives an inquiry requesting dismissal of an outstanding arrest warrant, the following procedures will be followed:

1. If staff determines the case is in one of the categories listed below it will be reviewed by the assigned DDA for possible dismissal;

2. If not in one of the below categories, or if the review determines the case will not be dismissed, the statement so stating will be sent by e-mail, fax, or mail, and copies to the electronic and physical case file together with a statement of any then-current efforts to serve the warrant.

Category I: To be determined by the assigned DDA or subsequent DDA in that position as determined by staff. Depending on unit policy, SDDA consultation may be required.

1. MCS/DCS/PCS cases SGL level 6 D-I and below, Property cases SGL level 3 and below, and Property cases SGL level 4 and below in the cases of government agency victims and victims who did not actually sustain a loss of more than $1,000;

2. 6 years or older; and

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3. No subsequent felony convictions.

Category II: To be determined as above except with approval of the SDDA for the appropriate unit.

1. All drug and property cases; 2. State can no longer proceed due to witness or evidentiary problems; or

3. State will likely lose the motion to dismiss for lack of speedy trial.

Category III: To be determined as in Category I.

1. Felony DWR/DWS;

2. 6 years or older;

3. No subsequent felony convictions; and

4. Revocation/suspension of driving privileges not based upon a conviction for DUII, or vehicular assault or homicide.

In all other cases, the defendant must personally appear to clear the warrant unless other compelling circumstances for dismissal are presented and approved by the appropriate CDDA, the First Assistant to the District Attorney, or the District Attorney.

For purposes of this section, “outstanding arrest warrants” do not include warrants (a) issued when the defendant has failed to appear for sentencing or (b) when the warrant has been issued because of a probation violation.

5.0 Interagency Prosecution Matters

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5.10 Conflict of Interest and Assigned Out Cases

Any time a DDA becomes aware that there exists a possible conflict of interest or any other reason our office should not handle a given case, that DDA shall bring the case to the attention of their CDDA. When the District Attorney determines that our office should not handle a given case, we will request the assistance of another district attorney's office within the state of Oregon, a special prosecutor from the private bar, the Attorney General's Office or the U.S. Attorney’s Office to prosecute the case. A record of all conflict of interest cases will be kept by the legislative administrative assistant.

5.20 Federal/State Requests for Investigation and Prosecution

All requests from the U.S. Attorney's Office or another federal agency for acceptance of a federal case for state prosecution by the District Attorney's Office shall be directed to the CDDA of the affected unit. This shall be done prior to giving any indication as to whether or not our office will relieve the U.S. Attorney's Office of its responsibility on the case.

5.30 Felon in Possession of a Firearm Cases

All cases involving at least one charge of felon in possession of a firearm should be considered for potential prosecution by the U.S. Attorney’s Office. Certain defendants in possession of firearms or ammunition may be eligible for enhanced sentences through the federal court system if they have prior convictions for serious drug offenses, such as drug delivery and manufacturing, or intentional violent felonies, such as murder, assault, robbery, coercion or unlawful use of a weapon. Any DDA issuing at least one charge of felon in possession of a firearm should make a case note indicating whether the case merits federal referral. Any questions about whether a case should be referred should be directed to AUSA Leah Bolstad at [email protected].

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5.40 Criminal Investigations and Alleged Misconduct of Sworn Law Enforcement Officers

Whenever any agency or individual contacts a DDA regarding possible criminal conduct by any sworn law enforcement officer, that DDA shall immediately notify the SDDA in charge of Unit D, the CDDA of Division III or the First Assistant to the District Attorney, who shall then notify the District Attorney. A log of any pending criminal investigations will be kept by the legislative administrative assistant. The DDA having responsibility for the investigation must update the SDDA in charge of Unit D, the CDDA of Division III or the First Assistant to the District Attorney on a regular basis until the case is resolved. The DDA shall also be responsible for entering current information into the log.

When allegations of misconduct or impropriety are made concerning a sworn law enforcement officer, the DDA receiving such information shall attempt to gather all pertinent information regarding the specific complaint, including the name, address and phone number of the person bringing the activity to the DDA’s attention. This information will be brought immediately to the attention of the CDDA of Division III, the SDDA in charge of Unit D, the First Assistant to the District Attorney or the District Attorney. Contact with "internal affairs" units within any law enforcement agency shall be made only with the knowledge of the District Attorney.

5.50 Police Discharge of Firearms Involving Death or Physical Injury

The grand jury will review all cases involving a law enforcement officer's discharge of a firearm which results in death, serious physical injury or physical injury unless at the discretion of the District Attorney it is determined that grand jury review is unwarranted.

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5.60 Unlawful Flight to Avoid Prosecution

The federal charge known as Unlawful Flight to Avoid Prosecution (UFAP) is intended to be a service of the FBI to assist local law enforcement agencies in the apprehension of criminally charged persons where there is a likelihood that the person has fled across state lines.

The FBI will locate, arrest, and promptly turn over a fugitive to the local authority where the arrest occurs. The FBI will not return a fugitive to the demanding jurisdiction. Rule 40 requires a hearing before a federal is moved across state lines, even on a federal charge, and this will not be done on a UFAP. When the fugitive is taken to the local authorities, the UFAP is dismissed and the person is held on our NCIC warrant.

Any arrangements for coordinating interviews or exchanging information between the FBI and the investigating detective should be done in addition to the UFAP request. The letter request should be directed to the Assistant U.S. Attorney. The fugitive should be clearly identified, the name and phone numbers of the trial DDA and the detective should be stated, and an agreement to extradite must be included in the letter. In addition, a certified copy of the indictment should be attached and the case screened. Include a statement that the person has probably fled the state. The U.S. Attorney’s office will immediately forward a copy of the request for assistance to the FBI.

A. Criteria

1. The individual must be under indictment (unless there are extraordinary circumstances).

2. No Class C felony will be authorized without express review by the Governor’s office and an agreement from the state to pay for extradition.

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3. The UFAP must be approved by the SDDA of the trial unit and the Pretrial Unit as well as the First Assistant to the District Attorney, or, in their absence, the CDDA.

4. Our office must agree to extradite. In addition, we will ask for a substantial period of incarceration.

5. Authorization for seeking UFAP assistance and for the payment of extradition must be obtained from the Governor’s office.

B. Procedures

1. Check with the investigating detective to determine the advisability of a UFAP.

2. Review with the SDDA of the trial unit.

3. Determine that the case is appropriate for extradition.

4. Provide the file to the extradition legal assistant. The DDA shall make a log entry, noting the approval of the SDDA of the trial unit along with suspected locations of the subject, if known, and the name and contact numbers of the investigating detective.

5. The completed letter will be forwarded to the SDDA of the Pretrial Unit for review.

6. The letter will be forwarded to the First Assistant to the District Attorney for signature. Return to extradition legal assistant for mailing along with certified copies of the indictment, warrant, and mug and finger prints if available.

7. A copy of the letter will be retained in the file and additional copies will be sent to the Governor’s office, the MCSO

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extradition unit, the MCSO transport unit and the investigating detective.

8. The extradition legal assistant will retain a copy of the letter and the indictment in a UFAP book.

9. The extradition legal assistant will seek approval for extradition from the Governor’s office.

6.0 Press/Public Relations

6.10 General Guidelines

This office will be candid, cooperative, and responsibly transparent with the media. This cooperation shall be accomplished without compromising the integrity of an investigation, our obligation as officers of the court to ensure a fair trial and to obey the laws of our state, the orders of the court, and our duties, restrictions, and obligations under the Oregon Rules of Professional Conduct.

Any question relating to any policy of the office from a member of the news media will be referred to the District Attorney, the First Assistant to the District Attorney, The Communications Director or the appropriate CDDA. The question may then be assigned to a DDA for response.

Detailed interviews with members of the news media will generally be conducted by the District Attorney, the First Assistant to the District Attorney, the Communications Director or one of the CDDAs. On certain occasions, these interviews may be assigned to other members of the staff. If any member of the office receives a request for an on-camera or on-air, live or recorded interview, clearance must be obtained from the District Attorney, the First Assistant to the District Attorney, or a CDDA.

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Routine inquiries concerning specific cases may be responded to by the DDA handling the case. Either prior to, or immediately after communicating with a member of the news media about a specific case, the DDA shall notify the SDDA about the subject and substance of the media inquiry.

All office staff will familiarize themselves with and adhere to the ABA standards relating to Fair Trial and Free Press as well as the Oregon Rule of Professional Conduct Rule 3.6 Trial Publicity which provide as follows:

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe

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that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7) in a criminal case, in addition to subparagraphs (1) through (6):

i. the identity, residence, occupation and family status of the accused;

ii. if the accused has not been apprehended, information necessary to aid in apprehension of that person;

iii. the fact, time and place of arrest; and

iv. the identity of investigating and arresting officers or agencies and the length of the investigation.

(c) Notwithstanding paragraph (a), a lawyer may:

(1) reply to charges of misconduct publicly made against the lawyer; or

(2) participate in the proceedings of legislative, administrative or other investigative bodies.

(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

(e) A lawyer shall exercise reasonable care to prevent the lawyer's employees from making an extrajudicial statement that the lawyer would be prohibited from making under this rule.

6.15 Press Releases

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All press releases will be coordinated by the Communications Director and must be approved by the District Attorney, the First Assistant to the District Attorney or a CDDA unless otherwise specifically directed by the District Attorney.

6.20 Release of Presentence Investigation Reports

ORS 137.077 specifies to whom a copy of a presentence investigation (PSI) report may be given.

State v. Collins, 308 Or 66 (1989), held that there was no express against disclosing the PSI information to third parties (as opposed to giving a copy to someone). The disclosure of presentence information to victims was later codified to ORS 137.077(4). The statute says that presentence reports shall be made available only to sentencing courts, appellate courts, the district attorney, the defense attorney, the defendant, the “Department of Corrections, State Board of Parole and Post-Prison Supervision and other persons or agencies having a legitimate professional interest in the information.” It is unclear who these “other persons or agencies” are that can be provided a physical copy of the presentence report. Several trial judges have ruled that the language “other persons or agencies having a legitimate professional interest in the information” is to be narrowly construed and applies only to people involved in the probation and parole function.

In order to avoid potential ethical problems, unless specifically spelled out by the statute, do not release the physical copy of the presentence report. You may provide the information orally or allow the person to review the report in your office. You may also seek a court’s permission to release a copy of the report.

6.30 Speakers Bureau

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A Speakers Bureau is maintained to provide community education to schools, civic groups, professional organizations and others interested in learning more about the District Attorney’s Office and the criminal justice system. Because frequent requests are received, every effort is made to distribute the assignments evenly so everyone has an opportunity to speak to groups and no individual staff member is overburdened by the requests.

If you have been requested to appear at an event by an outside agency or organization, require travel expenses or will be representing the office in an official capacity as either a guest, award recipient, speaker or presenter, approval is required.

All requests should be made by the individual staff member using the Public Engagement/ Speakers Bureau Request and Calendaring Form, which can be located on the internal DAWeb page, or by clicking here.

Once a request is submitted, the CDDA, Chief Investigator, or Program Manager will review the request and submit it for final approval to the District Attorney and or First Assistant to the District Attorney.

Upon approval, the CDDA, Chief Investigator or Program Manager will inform the individual making the request via email. The event will then be documented in the Public Engagement Calendar.

Participation in outside office-based volunteer events, office- based sporting events or office-based events such as the “PRIDE Festival” do not require approval. However, if you are the organizer of such an event, team, or gathering, please fill out the “Public Engagement / Speakers Bureau Request and Calendaring Form” so your participation can be documented and featured in the Admin Memo and, possibly, on our public facing website.

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If you have questions, about whether your event needs approval, please contact your Division’s CDDA, Chief Investigator or Program Manager, or Brent Weisberg.

7.0 General Personnel Issues

7.05 Affirmative Action

This office is committed to affirmative action and equal employment opportunity. We will continue to hire and develop the best people we can find without regard to their sex, gender, race, national origin, age, religion, marital status, sexual orientation, political affiliations, physical or mental disabilities or any other non-merit factor not constituting bona fide occupational qualifications.

7.10 Authorization for Use of Private Automobiles and Reimbursement for Expenses Policy

County Motor Pool and Carshare provide automobiles for business purposes. If travel is required during the course of the workday, the first option is for employees to utilize cars from the County Motor Pool or Carshare. In some cases the locations and or timing of meetings in relation to the employee’s work location and or home make use of county vehicles impractical. Consequently, procedures are in place to allow for use of a private automobile and to reimburse staff for expenses.

Use of Private Automobiles:

Employees are entitled to receive reimbursement when they use private automobiles for business purposes and they are authorized to do so in advance by their supervisor. For DDAs the requests should be submitted to the SDDA in their unit or the CDDA in charge of their division. For other staff members, requests should be directed to their Operations Supervisor,

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Program Coordinator, Chief Investigator, Staff Services Manager, or the Finance Manager.

7.11 Reimbursement for Expenses Related to Approved Use of Private Automobiles

A. Mileage Reimbursement: Staff members who have approval from a supervisor to use a private automobile for work- related travel may request mileage reimbursement. Mileage expenses cannot be reimbursed for commuting to and from work. Mileage reimbursement is for travel during the workday from one work site to another work site as well as for travel to and from supervisor-approved trainings. See section 9.20 – Education or Training Event Review Process and Travel Funds Authorization. The current reimbursement rate is the current federal “Privately Owned Vehicle (POV) Mileage Reimbursement Rate,” set by the General Services Administration.

B. Parking Reimbursement: Employees who are assigned to satellite offices and drive their private automobiles downtown to attend court appearances and or meetings are eligible for parking reimbursement. Receipts must accompany all parking reimbursement requests.

C. The Mileage and Parking Reimbursement form is e-mailed out to all MCDA employees on the first business day of each month by a finance staff member and is also available on the Commons: Travel and Mileage. Requests for reimbursement must be submitted to finance monthly. The signed reimbursement requests must be received by finance no later than the last business day of the month following the month during which the costs were incurred. For example: July parking and mileage reimbursement requests must be received by finance no later than the last business day in August.

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D. Local 88 Employees: Local 88 employees should refer to the Local 88 contract for further details regarding reimbursement of expenses.

7.12 Reporting Accidents

Whenever you are involved in any traffic accident involving a county vehicle/or your own vehicle while conducting county business, you shall immediately report this to the Staff Services Manager or the Finance Manager.

7.15 Workplace Harassment/Discrimination

The Multnomah County District Attorney’s Office is committed to providing its employees with a workplace that is free of illegal bias, prejudice, discrimination, harassment or retaliatory conduct. It is committed to creating and maintaining an environment in which each person is respected and valued without regard to protected status.

The Multnomah County District Attorney’s Office follows, adopts and endorses Multnomah County Personnel Rule 3-40.

7.20 Sexual Harassment

A. Introduction

The District Attorney’s Office is committed to providing a safe, productive and comfortable work environment for all employees. Anything that detracts from the safety or a feeling of safety of the environment is important enough to be reported and addressed.

It is anticipated that with the initiation of this policy on sexual harassment and the review and discussion of the policy by all staff that everyone in the office will be better informed and better understand how behaviors can be interpreted and misinterpreted. As always, the staff will 169

continue to conduct themselves in a professional manner. This policy is meant to ensure that staff is informed, knowledgeable, and aware of what constitutes sexual harassment and is meant to prevent any occurrence of sexual harassment in the Multnomah County District Attorney’s Office.

B. Types of Sexual Harassment

Sexual harassment is a form of sex discrimination. It is an unlawful employment practice under Title VII of the 1964 Civil Rights Act and ORS 659A.030. There is no place in the District Attorney’s Office for sexual harassment and conduct of this nature will not be tolerated.

1. Equal Employment Opportunity Commission: Quid Pro Quo

These are two kinds of sexual harassment; the first is known as quid pro quo. The Equal Employment Opportunity Commission (EEOC) defines this as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

a. Submission to such conduct is made a term or condition of employment. Submission to or rejection of such conduct is used as a basis for employment decisions affecting the individual.

b. Such conduct has the purpose or effect of unreasonably interfering with an employee’s work performance.

c. Such conduct has the purpose or effect of creating an intimidating, hostile, or offensive work environment.

2. EEOC: Sexually hostile work environment

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The second type of sexual harassment is the development or existence of a sexually hostile work environment. Hostile environment sexual harassment is unwelcome verbal, visual or physical contact of a sexual nature that is so severe or pervasive that it alters the victim’s conditions of employment and creates an environment that both the victim and a reasonable person would find intimidating, hostile, abusive or offensive. Verbal activity includes unsolicited sexual propositions, embarrassing sexual questions, demeaning or lewd comments, embarrassing or sexual jokes, use of sexual epithets among others. Visual activity includes display of sexual pictures, drawings or cartoons in the workplace; lewd sexual gestures, whistling, catcalling, staring or leering. Physical forms of harassment include any offensive touching, hugging, patting, kissing, brushing up against, and making threatening or intimidating or hostile actions including jokes or pranks. The courts have found that a sexually hostile work environment also represents discrimination under Title VII and is grounds for legal action.

C. Reporting Sexual Harassment

Employees who experience or observe or are aware of sexual harassment have an obligation to report it. Management, in turn, has an obligation to respond promptly to all complaints. We take these matters very seriously.

If you believe you have been sexually harassed or observed sexual harassment, you are required to take the following steps;

1. Quid Pro Quo: All incidents of quid pro quo sexual harassment should be immediately reported directly to management, bypassing direct supervisors. Management

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includes: District Attorney Mike Schmidt, First Assistant to the District Attorney Jeff Howes; Chief Deputies Don Rees, Kirsten Snowden or John Casalino, Staff Services Manager Jodi Erickson, Human Resources, Finance Manager Allen Vogt, Chief Investigator, SED Program Supervisor Christine Glidden, Victim Assistance Program Supervisor or Ross Lamberth, IT Manager.

If for some reason, you feel that you cannot report it to one of these people, then contact someone on the list located in Section 7.20F.

2. Other Possible Response Steps

a. If you are able to communicate clearly to the person who is the source of the harassment, you should communicate that the behavior is not welcomed or appropriate and should cease immediately. If you believe that the conduct should be reported to management, you should do so.

b. If you are not comfortable communicating directly to the person who is the source of the harassment, you can report the conduct to management. You always have the option to bypass your direct supervisors.

c. If you have communicated directly to the person who is the source of the unwelcome attention and if the inappropriate behavior persists, you need to notify management immediately.

d. All supervisors who have received reports of a hostile work environment or sexual harassment are required to immediately notify the District Attorney, First Assistant to the District Attorney or the Staff Services Manager or the EEO Representative.

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3. Notification

Notification can be either verbal or in writing. When providing notification in written form it should contain:

a. Specific examples of or description of the alleged sexual harassment;

b. Who was present at the time, the perpetrator and any witnesses;

c. What was said;

d. What actions took place or were observed;

e. What was offensive about the incident;

f. When the incident or incidents took place;

g. Where the incident or incidents took place.

D. Responding to Complaints

When an incident of sexual harassment is reported, management personnel will follow-up on all complaints by taking some or all of the following steps:

1. The District Attorney shall be notified immediately.

2. The District Attorney will assign investigator(s), or if the District Attorney is unavailable, then the First Assistant to the District Attorney.

3. An investigation will begin as quickly as possible. This will include speaking with the victim and requesting specific examples of inappropriate behavior.

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4. Interviews will be conducted with the person or persons accused of the harassment. They will be provided with the specific examples of the inappropriate behavior.

5. Interviews will take place with witnesses, if any.

6. The District Attorney will evaluate the information gathered.

7. If the allegations are found to be true, an appropriate action plan will be developed. This can include awareness training up to serious disciplinary action, including dismissal. Any disciplinary action taken will comply with contractual obligations with Local 88 and the MCPAA .

8. Follow-up will take place with the reporters and or victim.

9. The work situation will be monitored for an appropriate period of time to assure compliance with expected behavior standards.

It should be noted that all members of this office are required to cooperate in any investigation of a complaint. There will be no retaliation for reporting of incidents and confidentiality will be maintained as far as possible.

E. Summary

The District Attorney’s Office has established this policy to emphasize the seriousness of the issue and to highlight its importance to all staff. It is expected that everyone will know these rules and comply with them. If you have questions or concerns regarding this, please contact the District Attorney or any other manager.

F. Personnel to report to:

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Direct Supervisors: Office # Cell Phone # Diba Adams ...... 503-988-6965 503-730-7968 Kim Lacey ...... 503-988-6820 503-730-2078 Kelly Neukirch ...... 503-988-3896 503-730-1130

Unit Sr. Deputy District Attorneys: Office # Cell Phone # Amanda Nadell ...... 503-988-6076 503-819-9526 Glen Banfield ...... 503-988-3245 503-209-6608 Tom Cleary ...... 503-988-3875 503-969-9459 Brian Davidson ...... 503-988-3130 503-539-7963 Lori Fellows ...... 503-988-6125 503-969-9465 Amity Girt ...... 503-988-6698 971-806-5839 Adam Gibbs ...... 503-988-3437 503-314-8326 Dave Hannon ...... 503-988-5023 503-545-8156 Jenna Plank ...... 503-988-3112 971-352-1358 JR Ujifusa ...... 503-988-5344 503-849-2255 Nathan Vasquez ...... 503-988-3773 503-888-7595 Bette Yada ...... 503-988-3153

Or any of the following: Office # Cell Phone # Mike Schmidt, District Attorney .... 503-988-3143 503-969-9475 Jeff Howes, First Assistant ...... 503-988-5260 503-969-9485 Jodi Erickson, Staff Services Manager 503-988-4510 503-209-6605 Don Rees, Chief Deputy ...... 503-988-3134 503-793-6468 Kirsten Snowden, Chief Deputy .... 503-988-3177 503-803-2524 John Casalino, Chief Deputy ...... 503-988-5073 503-969-9460 Allen Vogt, Finance Manager ...... 503-988-3863 503-347-1372 Ross Lamberth, IT Manager ...... 503-988-6260 503-793-7450 Chief Investigator ...... 503-988-5311 503-793-8253 Human Resources ...... 503-988-5706

7.30 Political Activity

Participation in political activities, judicial races, initiative campaigns, and ballot measure activities outside of work time is encouraged.

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If a staff member, as part of their job, is asked to comment or provide information to candidates or persons involved in preparation of legislation, it is necessary to clear any verbal commentary or requests for information through the First Assistant.

All employees are expected to fully comply with ORS 260.432, which reads in relevant part:

A. No person shall attempt to, or actually, coerce, command or require a public employee to influence or give money, service or other thing of value to promote or oppose any political committee or to promote or oppose the nomination or election of a candidate, the adoption of a measure or the recall of a public office holder.

B. No public employee shall solicit any money, influence, service or other thing of value or otherwise promote any political committee or promote or oppose the nomination or election of a candidate, the adoption of a measure or the recall of a public office holder while on the job during working hours. However, this section does not restrict the right of a public employee to express personal political views.

For further clarification, see Burt v. Blumenauer, 65 Or App 399 (1983) at 406: (affirmed 299 OR 55 (1985)).

Once a measure has qualified for placement on a ballot, ORS 260.432 effectively prohibits public employees from promoting or opposing its adoption during working hours. Although officials and employees of the agency might possess valuable expertise and information, when an issue that an agency views as strictly a matter of medical science has become a ballot measure, the agency may not participate in the debate using public time or funds, even if that agency sees itself as merely providing the public with

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scientifically verified information or merely continuing an ongoing activity of the agency.

7.40 Communicable Disease Policy

Any employee with a known infectious disease for which there is a known risk of transmission to co-workers or clients shall take all reasonable steps to prevent transmission of the infectious disease to co-workers and immediately consult with their supervisor to be accorded either of the following:

A. Given as a reasonable accommodation a suitable and available alternate assignment within the work organization which does not pose a risk of disease transmission, or

B. Placed on a medical leave subject to the terms and limitations of the applicable collective bargaining agreement or the Management Compensation Ordinance.

Any employee with a known infectious disease for which there is no known risk of transmission in the work place shall be continued in their position as long as the employee is able to perform their job duties. In instances in which such an employee is subject to risk of complications of their illness due to ordinary work place conditions, reasonable accommodations will be made in job assignment to avoid such complications.

If the District Attorney, following consultation whenever practicable with the county Health Department, has reasonable basis to believe that an employee has an infectious disease which may pose a hazard to their co-workers or clients, the District Attorney may request a medical assessment from the employee’s physician. If in the District Attorney’s judgment the medical assessment by the employee’s physician does not adequately resolve the issue of hazard, the District Attorney may require a second opinion from a physician selected by the District Attorney in consultation with the Health Department.

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Any leave taken under the terms of this section for medical examinations shall be an administrative leave with pay. To the extent not covered by the employee’s medical insurance, the cost for medical examinations required under this section shall be borne by the county.

The District Attorney may consult with the county Health Officer for technical assistance regarding medical issues, which may arise out of an infectious disease incident. Medical technical assistance shall include, but not be limited to, providing a current list of infectious diseases, which are transmissible in the work places operated by the county. This listing shall be consistent with the rules of the Oregon Public Health Division.

The Employee and Labor Relations Division will be available to provide technical assistance regarding questions of employment rights, which arise out of an infectious disease incident. It shall be the responsibility of the county to provide employees with education and training regarding infectious disease. Such training will include personal preventive techniques such as immunization and good hygiene. Any training provided to county employees regarding hazardous materials shall specifically include information concerning the infectious risks associated with contact with blood and other bodily fluid spills.

In implementation of this policy, the health records of employees and information concerning an employee’s health condition shall be confidential.

7.50 Substance Abuse Policy

7.51 Policy Intent

As District Attorney for Multnomah County, I have an obligation to provide the citizens in this community with quality services. I

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also have the obligation to protect the lives and safety of every individual in the county.

Members of the Multnomah County District Attorney’s Office constantly work with confidential information and documents pertaining to criminal investigations. We have information relating to the safety of individuals such as informants, witnesses and vulnerable victims; we have information regarding the future service of search warrants and arrest warrants; we help monitor wiretaps and have information regarding body wires; we have information about ongoing investigations; and we have personal information about the members of our staff that could be used by offenders to retaliate against the DDAs or other employees of the office. Compromising any of these materials or a momentary lapse in attention could result in injury or death to another person. Moreover, since people who use illegal (whether state, federal and or local) drugs sometimes voluntarily or unwittingly immerse themselves in ongoing criminal enterprises in order to obtain those drugs, such people can pose a security risk within the law enforcement community. We cannot allow the information we possess to be distributed in the criminal community. A drug free work environment is essential to meet this obligation.

In addition, the DDAs have other responsibilities where drug usage would create a risk to public safety. DDAs are constantly working with drug cases and it is not uncommon that they must handle the illegal drugs as part of their case presentation. Because our offices are located throughout the metro area, DDAs frequently drive to get to meetings or court hearings. Whenever there is a homicide or other high-profile case the DDAs are generally called out to the scene. We frequently bring firearms, ammunition, drugs, and other evidence into our offices in preparation of trial.

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I therefore find that the following is a partial list of those positions in which drug impairment constitutes an immediate and direct threat to public safety. Pre-employment drug screening will be required for all employees who are either employed or likely to be employed in the following capacities:

1. Positions that try or assist in trying drug cases, or cases where drugs are components of the case.

2. Positions that have access to sensitive and confidential information such as contained in CRIMES/Attorney Manager (Adult and Juvenile).

3. Positions that come in contact with firearms, or are physically located near where firearms might be located.

4. Positions where the employees carry firearms or dangerous weapons.

5. Positions where employees drive cars as any part of their duties.

6. Positions that have access to personal information about the prosecutors.

7. Positions where the employee would have information that could jeopardize someone’s life if the information was distributed outside the office.

8. Positions that have access to information regarding future activities of law enforcement agencies such as court orders, search warrants, arrest warrants, wiretap orders, body wire orders, grand jury information, indictments and criminal informations.

9. Positions where a person could disrupt, alter or affect a criminal case.

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The intent of our substance abuse policy is not to be punitive but rather to help ensure the safety of the police, victims, witnesses and the men and women who work in the Multnomah County District Attorney’s Office and to assure the citizens of Multnomah County that they can continue to depend upon the District Attorney’s Office for quality services. It also gives our employees the assurance that they will continue to have a safe and drug free workplace. Toward this end, pre-employment drug screening for all DDAs was instituted on February 1, 1989. Pre- employment drug screening for all Local 88 staff was instituted in August, 1996. Pre-employment drug screening will continue to be required for all employees who are either employed or likely to be employed.

My continuing expectation is that all staff, whether on or off duty, shall follow reasonable rules of good conduct and behavior and shall not act in a manner that would bring discredit upon the Multnomah County District Attorney’s Office. I recognize the value of each employee, and their health and safety are of significant concern to me.

Because of this, I strongly encourage all employees to deal with any substance abuse problem through the Multnomah County Employee Assistance Program (EAP). The EAP currently available is through UNUM Provident Work-Life Balance. This confidential and free service is available to all employees 24 hours a day. This EAP is provided at no charge to all employees and their families. The Oregon State Bar can also provide attorneys with help and referral for substance abuse problems. Additional information can be obtained through the Attorneys Assistance Program of the Professional Liability Fund.

It is not my intent to pursue any criminal cases as a result of any pre-employment drug testing. The results will be confidential and will not be used as evidence in any criminal

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prosecution, or criminal investigation. The results of a positive test will not be given to any other employer.

7.52 Prohibited Alcohol and Illegal Drug Use

A. The use of alcoholic beverages on or off office premises during normal working hours, which includes lunch hours, is prohibited.

B. No alcoholic beverages are permitted in the office for personal use.

C. The unlawful (whether state, federal or local law) possession, use, manufacture, and or distribution of controlled substances, which includes prescription drugs, are prohibited.

D. The District Attorney recognizes that the manifestations of prohibited conduct may differ from person to person. Therefore, the District Attorney will look at changes in work performance, on-the-job behavior, objective and articulable signs of substance abuse, or credible evidence of the presence or use of prohibited substances in determining whether an employee has engaged in prohibited conduct.

When there is cause to believe that an employee has violated this policy, the District Attorney, or the First Assistant to the District Attorney, may require that employee to take a blood, urine, or breathalyzer test to determine the presence of alcohol or drugs. If there is a positive finding, a second confirmatory test will be administered. Test results are confidential.

Violation of this policy may result in disciplinary action. Disciplinary action includes but is not limited to:

1. Verbal and written reprimands;

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2. Placing an employee on administrative leave;

3. Requiring participation in a treatment program as a condition of continuing employment;

4. Suspending or terminating an employee;

5. Initiating a criminal investigation;

6. Prosecution.

It is the intent of the District Attorney to correct problems associated with prohibited conduct through referral to an EAP rather than to penalize employees. However, this may not be possible in every case, particularly where controlled substances are involved. The unlawful possession, use, manufacture and or distribution of controlled substances are defined as criminal acts and will be responded to as such.

7.60 Employee Firearm Policy

Staff members must know and follow the applicable state and federal laws pertaining to the possession and use of firearms. Failure to do so may result in disciplinary action, including termination.

If any staff member intends to apply for a concealed weapons permit, they must advise the District Attorney of their intent to do so prior to submitting the application for such permit. Copies of such applications and actual concealed weapons permits must be filed with the District Attorney.

No staff member, except investigators authorized under the District Attorney Weapons Policy for investigators, may possess on District Attorney Property or carry, concealed or otherwise, a firearm while working in an official capacity. Working in an official capacity is meant to cover all official activity, including

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but not limited to, work in the office, in the court, and locations necessitated by employment, such as crime scenes.

Firearms may not be carried by staff, concealed or otherwise, in public vehicles assigned for use by employees of the District Attorney’s Office except by District Attorney Investigators pursuant to policy. Likewise, firearms may not be so carried in private vehicles which are being used for official business. This does not prevent staff from transporting weapons in their private automobiles on their way to work, but does prohibit those automobiles from then being used, for example, by staff to drive from one office location to another during working hours. Firearm lockers are available for checking weapons in the lobby of the courthouse.

Nothing in this section is meant to restrict the carrying or possession of weapons necessary as evidence or otherwise in cases investigated or prosecuted by this office. Any exception to this policy can only be at the expressed authorization of the District Attorney.

7.70 Computer, Internet, E-mail, and Voice Mail Uses

The Internet, e-mail, and voice mail are all technologies intended to be used as business tools to support the mission and goals of the Multnomah County District Attorney’s Office. Employees are encouraged to integrate electronic information transfer processes, including Internet technologies, into their daily workflow to conduct county business, to share information, and to provide services to the citizens of Multnomah County. The privilege of having these technologies at our disposal brings with it responsibilities to use common sense in their application. There are millions of pages of information available through the Internet, much of it helpful and much of it inappropriate and offensive. It is not practical to control the availability of this information or restrict access to it. However, it is possible to track each individual connection

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to the Internet and each page accessed through that connection. The county has set up a reporting system for all Internet usage. Every staff member is responsible for ensuring that the material they access and use is appropriate. A general rule to follow is: if in doubt, always ask a supervisor or CDDA for clarification on appropriate use.

7.71 Uses

Employees’ use of county equipment and Internet access is intended for official business purposes only. Incidental and occasional personal use may be permitted.

It is permissible to download screensavers and backgrounds for use on the office PCs. However, the Information Technology Unit needs to be notified and, if there is a problem with a computer locking up or other difficulties that can be related to certain types of screensavers, backgrounds, it may be necessary to delete the file.

It is not permissible to download games or music or to play games or music on the office PCs.

Due to limited bandwidth, streaming of video or music is not permitted.

Communication with federal, state or local government agencies, their committees, boards, and commissions; communication for professional development to debate issues in a field; and research for work related topics are all acceptable uses of these technologies.

7.72 Employee Responsibilities

A. Log Off. All employees should log off of their computers when leaving their offices for an extended length of time. Leaving an unattended computer logged in to the network

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and to CRIMES/Attorney Manager allows unauthorized users access to secure information. CRIMES/Attorney Manager, e- mail, and word processing programs may be left open during the day. Several programs have limited licenses and must be closed after each use so others will be able to access them.

B. Close the Internet browser. Unless you are constantly using the Internet for a work purpose, the browser should be closed after each use. The tracking system logs every minute spent at each site and the pages accessed as long as the browser is open.

C. Turn the computer off at night. Choose the Shutdown option on the menu and actually turn the power off. Turning them off will help the equipment last longer and will also help ensure that unauthorized users do not access secure databases.

D. Passwords and Privacy. Passwords are required for the computer systems used by DA staff. Your password should be a word or a combination of letters and numbers that you can remember. Do not use your initials, your first or last name, or the word “password.” Users should protect their passwords and not share them with other individuals. Users should respect the privacy of others by not reading files or e-mail on another PC or in another’s directories or subdirectories.

E. Help keep the DA Network secure. Downloading files from the Internet and or loading software from outside the office is potentially harmful to the security and reliability of our computer network. Any files downloaded from the Internet or brought in on other media must be run through a virus- checking program. Call the Computer Help Line for assistance with virus-checking. Programs designed for individual computers are not necessarily designed to work

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on a networked system and using them may damage other office programs. It may also violate copyright or licensing laws. Any software program, whether downloaded from the Internet or purchased in a store that is to be installed on your computer must be approved by the Network Administrator or Information Systems Manager.

F. Comply with Applicable Laws and Licenses. Employees must comply with all software licenses, copyrights, and all other state and federal laws governing and on-line activity. Questions about software licensed for use on the network should be directed to the Network Administrator or Information Technology Manager. Questions about copyright issues should be directed to the Information Services Department or the First Assistant to the District Attorney.

7.73 Prohibitions and Limits

A. DA personnel and personnel of criminal justice agencies who are authorized and require computer use for a valid law enforcement purpose are permitted to access computers located in any of the District Attorney’s offices. This includes connecting to the office computers via remote access. Any questions as to what constitutes a “valid law enforcement purpose” should be clarified with the First Assistant to the District Attorney or a CDDA. Access to Law Enforcement information and resources shall never be used for personal purposes.

B. Not for Personal Gain. Computer technologies are not to be used for personal gain, political promotion, or religious activities. We do allow for incidental and occasional personal use, which may include an occasional individual personal transaction, such as purchasing an airline ticket over the Internet outside of work hours. Financial transactions that result in more than negligible financial impact or the

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possibility of more than negligible financial impact (such as stock trading) are prohibited by state ethics guidelines. Extended or repeated transactions, such as catalog shopping and ordering or dealings with auction houses, will not be considered incidental use. Neither will extended amounts of time spent at non-work Internet sites. Personal advertisements, or requests and political and religious materials are not authorized uses. Illegal acts, commercial endorsements, or activities that would endanger the security of the information contained in the network are prohibited. Any action that would render the computer equipment unusable or would interfere with another employee’s use of computer equipment is also prohibited.

Political activities can be defined as those actions that would directly or indirectly assist a campaign for election of any person to any office or for the promotion of or opposition to any ballot proposition or legislation. This prohibition does not apply to the use of technologies for the development or delivery of objective presentation of facts relevant to a ballot measure as allowed by state law, or when responding to requests for information, provided that such use is part of the normal and regular conduct of the employee developing or delivering the presentation of facts.

7.74 E-mail Addresses

In general, employees should not give another employee’s e- mail address to a third party unless they have been given permission to do so. Some employees make extensive use of e-mail while others prefer to receive communications by telephone and may not respond to e-mail in a timely fashion.

If someone from outside the office insists on having an e-mail address, direct them to our general DA e-mail box. [email protected] or the DA web site (http://www.mcda.us). Any

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mail sent to the address there will be forwarded to the appropriate person.

All full-time employees have a county e-mail address. Many employees also have personal e-mail accounts on other systems. E-mail accounts that require installation of software on office computers, primarily AOL accounts, including AOL Instant Messenger, interact adversely with the software on our computers and they can by-pass the security of our network. The use of these types of e-mail accounts is prohibited and they should not be installed. E-mail accounts on Web-based systems may be accessed under the incidental and occasional personal use guidelines. Employees may not use county-owned computers to send or receive e-mail through one of those systems that would not be permitted under the regular use policies.

Employees are provided with an official District Attorney’s Office e-mail address and are expected to use that address for all official correspondence. To the extent that the rare circumstance requires the use of a personal e-mail address for official business, copies of those e-mails must be archived consistent with County record retentions policy (see section 3.02).

7.75 Equipment Checkout Policy and Procedures:

The District Attorney’s Office currently has the following equipment available to check out for use in trial:

 Two - 60 inch flat panel TVs

 Two - 55 inch flat panel TVs

 Two - 46 inch flat panel TVs (One is assigned to JC2 in the Justice Center)

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 One - Projector, laptop and screen

 Three - Court PCs (laptops attached to carts with Logitech Sound bars for playing audio files in court)

 Two - ELMO Visual Presenters. The ELMOs can be connected to either the flat panel TVs or to the projectors to display pictures, documents or other items).

 The office also has a video camera which is kept on the 6th floor. You do not need to contact the IT Department to reserve this, as IT does not manage access to it. Video camera usage is managed by the SDDA in charge of the Misdemeanor Trial Unit.

NOTE: The peripherals for the flat TVs, extension reels, power cords, remotes, mice, keyboards & pointers, are kept in red bags which must be checked out from IT before the TVs can be utilized.

To check out equipment please call or e-mail the DA Help Desk and arrange to pick up the equipment at least one day in advance to ensure availability and to give yourself time to test the media you will be using. Audio carts for checkout are stored outside the closet near the grand jury office and the flat panel TVs are stored in the hallway near the finance office on the 6th floor and the hallway on the 8th floor of the courthouse.

When requesting equipment please include the following information:

 What equipment is needed

 The date it will be needed

 The time it will be needed

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 How long it will be needed

Once IT receives the request, arrangements will be made for the requester to pick up the equipment or for a member of the IT staff to deliver the equipment to a specified location.

Things to remember when checking out equipment:

 Requesters are responsible for setup AND take down of the equipment unless other arrangements are made at the time of the request.

 If your case settles or is set over and the equipment is no longer needed please notify the DA Help Desk as soon as possible.

 When checking out a flat panel TV do not forget that you need the red bag with number that corresponds to the number on the back of the TV. The bags are not interchangeable.

 If the equipment is being used for a multi-day trial it is ok to leave the equipment set up overnight in a courtroom if the judge will allow it. If the equipment is going to be used for several days, but the judge will not allow it to be left in their courtroom, the requester should store it in their office overnight.

 Please do not leave equipment set up in a courtroom over a weekend. The requester is responsible for taking it down and storing it in their office until the trial resumes.

 While in possession of the equipment the requester should store it in their office, or just outside their office if it is too small.

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 If the requester is checking out equipment for a presentation that is likely to extend past the normal business hours of 5:00 p.m. and will be unable to remain to take it down and see it safely back to their office or the equipment closet, the requester is required to make arrangements to have someone take the equipment down and put it away.

 The requester is responsible for the equipment from the time it is checked out until a member of the IT staff checks it back in and will be held accountable if it is damaged, lost or stolen.

 When finished with the equipment the requester is required to take it down, pack it up making sure to place the correct peripherals in the correct bags, i.e. extension reels, power cords, remotes, mice, keyboards & pointers, and call the DA Help Desk so that arrangements can be made for the requester to drop off the equipment or for a member of the IT staff to pick up the equipment.

 When returning the larger flat panel TVs please put them back in the hall and bring the red bag to your office, call the DA Help Desk and we will come by and pick up the bag.

Remember to call or e-mail the DA Help Desk when the equipment is done being used.

7.78 Communicating Information inside and outside of the office

The same care should be exercised in drafting e-mail and voice mail communications as goes into written communications. Please note that e-mail and voice mail communications may be subject to the public records law. Any information concerning the public’s business, however recorded, constitutes a “public

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record.” The content of a particular public record may be exempt under one of the many exemptions set forth by statute, but employees should assume that any electronic record generated by this office is subject to public disclosure. Please take care when composing communications and recognize they have the potential to be seen, heard, reviewed, copied, and forwarded to many others.

The county-wide and office-wide e-mail lists that are available to us are available for work activities only and should not be used for personal notices or requests. Sending global messages to #ALL COUNTY EMPLOYEES requires the prior approval of the District Attorney, a CDDA, the First Assistant to the District Attorney or the Staff Services Manager. Electronic mail should be used for county business only. Examples of improper use of electronic mail include but are not limited to the sending of offensive messages, using electronic mail for non-County business ventures or to convey political or religious messages. Personal use of e-mail is meant for messages to individuals. If you have a personal request or announcement that is of office- wide interest, please send it to the Staff Services Manager for consideration for the Administrative Memo or to be added to the District Attorney’s intranet site.

7.80 Cellular Phone Policy

A. Personal Use

Personal cell phones are allowed in the work place. Personal cell phone usage is restricted to emergencies and personal time such as breaks and during lunch hours.

Whether it is your personal cell phone or your office cell phone, personal use of cellular telephones during work hours is discouraged. It is recognized that personal calls often need to be made for situations that facilitate job responsibilities and for emergencies.

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All policies governing appropriate Internet and computer usage set out in section 7.70 above apply equally to use of the Internet from a County owned cell phone.

B. Assignment of Cellular Telephones

The District Attorney has the discretion to assign a cellular phone to assist staff members in performing their official duties which can include staff in managerial positions, those who are frequently out of the office, those who supervise others who are frequently out of the office, and those who are “on call.” Cellular telephones may be assigned on a permanent or temporary basis.

C. Lost or Stolen Cellular Phones

A lost or stolen cellular telephone shall be reported to the DA Telephone Liaison immediately, or in their absence, to the County Tele-Communications Office.

7.90 Certain Legal Issues

7.91 Sensitive Information

It is common knowledge that the District Attorney’s Office handles some very sensitive cases. It is expected that DDAs will use their discretion when discussing these cases. Common sense tells us to refrain from sharing case information or any confidential material with others. Every staff member should remember to be careful when discussing cases. Case information should not be relayed to other staff members in the reception area or any other public area of the office or courthouse, including the elevator.

7.92 Staff Member as Crime Victim or Arrestee

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To avoid any conflict or appearance of a conflict office supervisors and management needs to be advised if you are a victim of a crime in a case that may be issued or initiated by the office.

Please contact your supervisor, the Staff Services Manager or the CDDA in charge of your division and advise them of the circumstances.

Because it is necessary to know in advance of any personal court appearances by employees, it is your responsibility to advise your immediate supervisor should you be arrested or receive a citation that requires an appearance in court, for a traffic violation or any other offense. The supervisor will, in turn, notify the Staff Services Manager or the CDDA in charge of your division. Please consider this section in conjunction with Section 5.10 of this policy manual.

7.93 Lawsuits

Whenever a DDA is served with a or ethics complaint, the DDA shall inform the District Attorney and the First Assistant to the District Attorney. The DDA shall also provide the District Attorney and the First Assistant to the District Attorney with a copy of the lawsuit or complaint.

If a DDA is served with a complaint that has a mail-in notice, the DDA should not sign the notice until the Attorney General’s Office has been notified.

Upon receiving a copy of the complaint, the First Assistant to the District Attorney shall notify the Attorney General’s Office in writing. A copy of that transmittal letter shall be sent to the DDA who is the subject of the lawsuit and the District Attorney.

7.94 Parking Tickets and Traffic Citations

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Whenever a staff member receives a traffic citation they shall notify the First Assistant to the District Attorney or the District Attorney. The employee must inform the First Assistant to the District Attorney or the District Attorney if the matter is going to be challenged. Although an employee may choose to challenge a parking ticket and seek a “not guilty” finding, no employee of the District Attorney’s Office should ever ask the court to consider the dismissal of a parking ticket regardless of the circumstances surrounding the issuing of the ticket. If contested, the employee shall notify the First Assistant to the District Attorney or the District Attorney of the matter’s ultimate resolution.

7.95 Investigation of Staff and Criminal Associations

It is the responsibility of staff members to immediately notify either the First Assistant to the District Attorney or the District Attorney of any criminal case, investigation, or arrest for alleged criminal conduct involving the staff member or the staff member’s immediate family.

“Immediate family” is defined to include parents, spouse, spouse equivalent, brother, sister, children, grandparents, and any individual where the relationship is close or intimate.

7.96 Association with Victims/Witnesses or Defendants

Employees of the District Attorney’s Office should avoid regular or continuous non-professional associations with any persons they know are either under criminal investigation, under criminal charges, or having been convicted of a criminal offense, are presently incarcerated, on probation or parole. Employees who are unable to avoid regular or continuous contact due to family or social relationships can request an exemption from this prohibition from the First Assistant to the District Attorney or the District Attorney if it can be demonstrated that the contact does not place the staff member

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or the District Attorney’s Office in a compromising situation. It is incumbent upon the employee to notify the First Assistant to the District Attorney or District Attorney immediately upon becoming aware of this situation.

Employees of the District Attorney’s Office should also avoid non-professional associations or socializing with persons who are victims or witnesses when it would create an appearance of conflict. Upon becoming aware of such a situation, attorneys should notify the CDDA in charge of their division and support staff should notify the Staff Services Manager immediately. The general rule that should be applied is: when in doubt, ask. If an employee has a question concerning their involvement with an individual receiving services from the District Attorney’s Office, it should be directed to the First Assistant to the District Attorney, a CDDA or the designee of the District Attorney.

7.97 Inclement Weather, Administrative Closures and Special Emergencies Policy

The Purpose: To establish a District Attorney’s Office policy designating essential employees and the process for reporting for duty during situations which may cause the closure or curtailment of County operations. The Multnomah County District Attorney’s Office facilities or job functions do not close due to inclement weather. This policy is not intended to supersede any governing collective bargaining agreements, personnel rules, and or ordinances regarding inclement weather, natural, or man-made disasters, or any other special emergency.

Essential Public Safety Services: The District Attorney’s Office is committed to providing services to the community that promote a safe and crime-free environment, regardless of weather, natural, or man-made incidents or other declared special emergencies. The organization is committed to working diligently to protect children and victims of crime and to

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maintain timely and appropriate sanctions and consequences for those who engage in criminal activity. District Attorney’s Office employees recognize their unique role in fulfilling that mission by providing uninterrupted services to the community.

For purposes of this policy, all District Attorney’s Office employees are considered essential and are expected to make every reasonable effort to report for duty during any inclement weather, natural or man-made disaster or any other declared special emergency. It shall be at the discretion of the District Attorney, First Assistant, CDDAs or Staff Services Manager to determine if specific posts within the District Attorney’s Office remain essential based on the special emergency.

Declaration of Special Emergency: The District Attorney or their designee(s) may order curtailment or closure of District Attorney’s Office facilities or offices, or reassign employees to other work locations, when conditions exist that interfere or prevent continued agency operations. For purposes of this policy, declaration of special emergency is limited to employees of the Multnomah County District Attorney’s Office.

Notification of Special Emergency: When the District Attorney or their designee(s) declares a special emergency, notification shall be made in the following manner:

 Notification process through the SDDAs, Supervisors and Support Staff Lead workers to their units. Employees are responsible for keeping a current phone number on file with the District Attorney Human Resources Office.

 MCDA’s Office Emergency Information Line as posted on the DA Web.

The emergency information line is a message that will contain the most up-to-date information about reporting requirements during an emergency. The emergency information line is for

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internal notification only and should not be given out to the public. It shall be the responsibility of the Multnomah County District Attorney’s Management staff to keep the emergency information line updated daily.

Cancellation of Declared Special Emergency: The District Attorney or their designee(s) shall cancel a declared special emergency when conditions causing the special emergency have subsided to the appropriate level. Notification of cancellation of the special emergency shall be made in the same manner as the original notification of the special emergency.

Leave options for employees unable to report to work: The Multnomah County District Attorney’s Office facilities or job functions do not close due to inclement weather. Therefore, pursuant to Multnomah County Personnel Rule 3-15-020 Absences, an employee, FLSA exempt or non-exempt, who does not report to work under circumstances outlined in this policy, shall use appropriate leave as follows:

 Leave without pay;

 Compensatory time off;

 Personal or saved holiday;

 Vacation leave.

Sick leave may not be used for this purpose.

Employees who have been designated as operationally essential (“Essential”) are required to report for duty regardless of facility closure or curtailment of some or all County operations. An essential employee who does not report to work or who reports late shall time-code the absence as

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leave without pay, or may charge it to compensatory time off, personal or saved holiday, or vacation leave.

Early Departures: Managers may allow FLSA non-exempt employees who expect to encounter unusual difficulty getting home to leave early and charge the absence to a category as designated above. All employees who live near their work sites or on well-traveled routes are expected to stay on the job until their shift ends.

Flex Time: When job duties allow, flex time may be used to account for time not worked provided that no overtime or compensatory time is earned as a result of the adjustment and the hours are no more than the same number missed and occur in the same FLSA work week. It is the manager’s discretion to authorize flex time.

8.0 Professional Staff Compensation

8.01 Salary and Salary Administration

Compensation for a DDA is outlined in the current agreement between District Attorney of Multnomah County and the Multnomah County Prosecuting Attorney’s Association.

DDAs who are not satisfied with their rate of advancement, merit step award, or any other personal decision are encouraged to discuss the matter with their manager.

8.02 Vacation

It is acknowledged that, as professionals, attorneys will often work more than 40 hours a week (see Office Policy 8.81 “Office Hours”). It is also acknowledged that as a result attorneys will sometimes work less than a full 8-hour shift on a particular day. Attorneys are required to submit request for leave forms to their supervisors when taking time off. If the leave request is approved attorneys should not mark “partial day” on their 200

timesheets for that time. No deduction in pay or vacation will result for absences of less than a full workday. All absences, regardless of duration, will continue to receive the approval of the attorney’s supervisor.

For vacations in excess of a day, the following vacation policy is to ensure that vacation time is equally and fairly distributed among staff members. It also takes into account the needs of the office.

A. Vacation requests must be put in writing.

B. Requests must be approved by the DDA in charge of the unit and the CDDA of that division.

C. All requests must be given to the payroll timekeeper.

D. Vacation requests of longer than two weeks in a 31-day period must be approved by the District Attorney.

E. The staffing needs of the office will determine whether a request is approved.

F. Vacation requests normally will be approved on a first-come, first-served basis.

8.03 Vacation Requests – Local 88 Staff

Vacation requests for the Local 88 employees of the Multnomah County District Attorney’s Office will be handled pursuant to and in compliance with Article 8, Section 5 of the Local 88 agreement. Article 8, Section 5 states that “Employees will be given reasonable opportunities to use their vacation time; however, employees’ use of accrued vacation leave shall be subject to the needs and requirements of the County. Employees shall be permitted to select one or more vacation times. The method of vacation selection shall be in accordance

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with Memoranda of Agreement negotiated between the Union, Labor Relations and each department and is incorporated herein by reference.” Vacation requests that result in scheduling conflicts that cannot be mutually resolved between Local 88 employees shall be determined by the seniority provisions of the Local 88 agreement.

8.04 Vacation Leave General

All employees, including Local 88 members, will submit their vacation requests to their exempt manager or designee using the County’s Workday system. Exempt supervisors requesting partial day leave should submit their requests using the “Request for Leave Form” or by sending an e-mail to their exempt manager or designee. Advanced notice is encouraged in order to assist in the planning of appropriate vacation relief. Out-of-town vacation plans should be noted on the Request for Leave Form, but must be authorized prior to the employee incurring expenses. Every effort will be made to respond to requests in a timely manner and to accommodate vacation plans within the office’s staffing level requirements.

8.05 Vacation Leave During Peak Request Seasons (Holidays and Summer)

Holiday and summer vacation requests are normally solicited from Local 88 employees one to two months in advance of the season by memo from the exempt manager or designee. In an effort to give all employees the opportunity to have time off during the holidays and or summer, consideration will be given to those employees who have not taken any time off during the previous year’s holiday season and or summer time.

8.10 Other Leaves

8.11 Sick Leave/Leave Without Pay

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The use of sick leave shall be limited to those specific times when the employee or a member of their immediate family or household is disabled or has dental or medical appointments. Absence due to sickness in excess of three days must be verified by a medical provider or their designee’s certificate at the request of the District Attorney.

Sick leave shall be confined to accrued and available sick leave. Only if sick leave charges are in excess of accrued sick leave, may they be charged to accrued and available vacation leave, saved holiday time, or compensatory time, sequenced at the employee’s option, until they are exhausted and then leave without pay. Leave without pay may be requested, but only after all accrued vacation and personal holiday time has been utilized. Leaves without pay are subject to the approval of the District Attorney.

8.12 Family Medical Leave Act (FMLA) and Oregon Medical Leave Act (OFLA)

The county provides leave to its employees so they can meet their family health and parental obligations, or for their own serious health conditions, or to allow them to prepare for a close family member’s active duty service, to spend time with spouses who are on active duty, or to provide care to a close qualified service member, while maintaining their employment status.

It should be noted that FMLA and OFLA are federal and state laws and the county is required to designate leaves that qualify as such. If you have questions regarding a specific serious health condition, please contact Human Resources.

8.13 Leave of Absence

Leave requests in excess of allocated vacation time will be considered consistent with the needs of the office and must be

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approved by the District Attorney. The office recognizes there are exceptional circumstances, which may necessitate an extended leave request and will consider the request based upon the needs of the individual and the requirements of the office.

8.14 Parental Leave

Oregon state law mandates that employers provide up to 12 weeks of unpaid leave to employees to care for their newly born or adopted child.

Multnomah County has established, by ordinance, a policy that further extends the benefit to include the use of the employee’s sick or vacation time to be used during the 12-week period. This is at the option of the employee.

An employee will provide no less than thirty (30) calendar days’ notice for a planned absence under the provisions of FMLA/OFLA. In the event of a medical emergency or other unforeseeable event, the employee will contact the supervisor as soon as practicable.

8.15 Leave for Jury Duty

The District Attorney encourages DDAs, management, and staff to report for jury duty when they are summoned for jury duty.

When an employee is required to report for jury duty the following policy is in effect:

A. All staff shall be granted leave with full pay in lieu of jury fees on any scheduled day of work they are required to report for jury duty, if upon receipt the employee submits jury fees to Payroll.

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B. If you are excused early for the day, you are to report to the office for the remainder of your work shift. This is in agreement with the Local 88 contract, “An employee who is excused or dismissed from jury duty before the end of the day will report back to work if practicable.”

C. In the event that you are selected for a criminal case, do not return to the office or discuss the case with anyone in this office until the case is completed.

D. For attendance purposes please call in to your supervisor or leave a voice mail message on a daily basis while you are on jury duty.

8.16 Educational Leave and Professional Recognition Leave

Requests for attendance at educational programs will be reviewed individually. A determination will be made whether or not to grant office leave time for attendance for such events. Requests by DDAs for Professional Recognition Leave shall be handled in accordance with the procedures identified in the MCPAA contract.

8.20 Access to Information

The purpose of this policy is to ensure that information maintained by the District Attorney’s Office is collected, stored and disseminated in a manner designed to guarantee its security from unauthorized individuals and organizations. Especially important in collecting and releasing information is the recognition of the right of individual privacy from unwarranted intrusions.

“Information” applies to data collected or generated by the Multnomah County District Attorney’s Office, including confidential, sensitive or legally protected external databases and information sources to which we have access (e.g. LEDS,

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NCIC, DMV, RegJIN, LOIS, CSEAS, ESWIS) and all manual record systems.

Personnel in the District Attorney’s Office are often asked for information from office records regarding criminal matters. Staff members should familiarize themselves with this policy and be certain to ascertain an inquirer’s identity and purpose before providing any information. All questions should be referred to your immediate supervisor.

8.21 Communications and Access to Information

Individuals have the right to access to their criminal history record for review and correction.

Inquiries from an individual for a copy of their RegJIN person history (formerly PPDS name record) should be referred to the Portland Police Bureau Records Division.

Personnel should familiarize themselves with the County and DA policy on Security and Privacy of Information.

All requests for review or duplication of office files should be referred to the Public Records DDA in the Pre Trial Unit. Any request for authorization to police agencies to release reports should be referred to the Pre Trial Unit DDA. Reports are subject to release unless their release would interfere with an ongoing criminal investigation. Generally speaking, the public release of police reports while a criminal prosecution is ongoing will interfere with the criminal investigation, however a case- by-case analysis must be made. Likewise, release of reports shall not be authorized where doing so would risk tainting the jury pool or otherwise impairing a defendant’s right to a fair trial.

Generally, closed criminal files are publicly accessible, however certain documents contained in those files are exempt from

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disclosure to include (but not limited to): LEDS printouts, medical records, psychological evaluations, pre-sentence investigation reports, and certain attorney work product. Release of a file should not be made without first consulting with the Public Records DDA.

8.22 Juvenile Records

The law significantly limits the disclosure of juvenile records. See ORS 419A. 252, et seq. Many records, including police reports, can only be released by court order. There is one exception ORS 810.460 allows release of traffic accident reports whether a juvenile is involved or not. If a member of the public seeks the release of a confidential record, the DDA screening the request should send a letter to the requesting party indicating that a motion must be made to the Juvenile Court for release of records. The DDA should send a copy of this letter to the records department of the participating police agency.

Some information about juveniles and juvenile court proceedings is not confidential. See ORS 419A.252, et seq. Requests for non-confidential records should be directed to the Juvenile Department.

8.23 Access to Restricted Law Enforcement Databases such as LEDS, NCIC, CRIMES, Attorney Manager, RegJIN, ESWIS and LOIS

Only personnel of the District Attorney’s Office and personnel of criminal justice agencies who are officially authorized by this office and have a valid law enforcement purpose are permitted to access computers located in any of the District Attorney’s offices. This includes connecting to the office by Virtual Private Network (VPN).

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8.24 Physical Access to Office

A. Front Desk

All office visitors to the fifth and sixth floor District Attorney Office should be met at the front desk and escorted through the office to the visited individual’s work area. Visitors are not to be admitted prior to 8 a.m.

Generally, no unauthorized individual should be allowed to move unescorted around the office. If you have questions about an individual in the office, ask them directly if you can help them.

B. Satellite Offices

All visitors to the satellite offices, including staff members of the District Attorney’s Office, need to identify themselves before proceeding into the private areas of the office. This will assist the receptionists in each of the satellites who may not be familiar with all District Attorney Staff members.

8.30 Procedures for Emergencies

8.31 Evacuation

A. Fire

Whenever there is a fire alarm the building must be evacuated. The elevators are not used in a fire. If at all possible take the back fire steps. Once you leave the building you are to go to your designated areas. It is your responsibility to know where that area is.

B. Earthquake

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In the event of an earthquake you will be directed to leave the building as soon as it is safe. Do not attempt to leave during an actual quake. During the quake, try to find a safe place, such as under a desk or in a doorframe.

8.32 Emergency Communications

The following outlines the procedures for internal office-wide emergency communications. Based on past experience, it is believed that this procedure will rarely be used. However, given the type of work we do and random acts of Mother Nature it is important that such a procedure be in place.

The phone tree will follow the existing organizational structure. Each manager and lead worker is responsible for calling those that they supervise.

A. District Attorney contacts: First Assistant to the District Attorney.

B. First Assistant to the District Attorney contacts: CDDAs, Staff Services Manager, and Staff Assistants.

C. CDDAs contact SDDAs in their division.

D. Staff Services Manager contacts: SED Program Supervisor, Victim Assistance Program Supervisor, Information Technology Manager, Finance Manager, Human Resources Staff, Operations Supervisors, and Senior Legal Assistants.

E. Senior and Lead Personnel contact: Their unit’s staff members.

Each person must have direct contact with those they are responsible for calling. It is the responsibility of the managers and the leads to maintain current contact information of those they supervise.

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8.40 Recommendations and Public Statements

8.41 Letters of Reference

No member of the District Attorney’s Office shall use office stationery to make personal recommendations or letters of reference without the approval of the District Attorney, the First Assistant to the District Attorney or a CDDA.

8.42 Public Statements Regarding Other Agencies, Individuals

No one in the District Attorney’s Office is authorized to engage in a public evaluation of police or sheriff personnel, judges or members of other public agencies without the approval of the District Attorney or the First Assistant to the District Attorney.

Any complaints concerning judicial decisions or conduct shall be directed to the First Assistant to the District Attorney. No direct correspondence to a judge concerning these matters shall be made by a member of the District Attorney’s staff unless the communication is personally approved by the District Attorney.

Any complaints of attorney misconduct shall first be directed to and discussed with the First Assistant to the District Attorney prior to any proposed action.

DDAs are occasionally contacted by members of the Judicial Fitness Committee (Committee) or Oregon State Bar (Bar) regarding a specific incident or incidents concerning complaints against sitting judges and attorneys. If approached by a member of the Committee or the Bar, a DDA shall notify the District Attorney or First Assistant to the District Attorney. The DDA will be responsible for responding to inquiries in their capacity as a member of the Bar and as an officer of the court.

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When a DDA is asked to confirm or deny the substance of a complaint against a judge, they are in effect being asked to render a personal judgment on another member of the Bar. The DDA shall advise the Committee or Bar that any comments are made in their capacity as another lawyer and as an officer of the court and not as a DDA.

8.60 Other Compensation and Employment

8.61 Outside Employment

In order to avoid potential conflict of interest and ensure that office performance is aimed at serving the public, all staff members of the District Attorney’s Office are prohibited from engaging in outside employment or the private (ORS 8.720; 8.726; 8.790). Any questions as to what constitutes the practice of law should be cleared with the First Assistant to the District Attorney. There can be exceptions to this policy. If permission is granted, it shall be authorized in writing by the District Attorney.

8.62 Professional Legal Work

Performing professionally in projects directed by the District Attorney’s Office, Oregon District Attorneys Association, Attorney General’s Office, State and County Bar Association, DPSST, or any other court, law enforcement agency or legislative committee is a responsibility and an opportunity our office encourages.

The professional staff member who provides such service shall be selected by the District Attorney or the First Assistant to the District Attorney. The staff member selected may be excused from normal work assignment, when necessary, without loss of pay or benefits.

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8.63 Other Types of Employment

With respect to employment performed during non-working hours, DDAs shall not engage in any type of work or activity that potentially conflicts with the operation and function of the District Attorney’s Office or which would cast discredit upon this office. Outside employment not related to the position of DDA is not prohibited per se, but all such employment performed during off hours must be approved in writing by the District Attorney. For your further guidance the following is excerpted from the County’s Personnel Rules 3-30-040(C)-(E):

C. Employees may not accept outside employment that involves:

1. The use of county time, facilities, equipment and supplies, or the prestige or influence of the employee’s county position. In other words, the employee may not engage in private business interests or other employment activities on the county’s time or using the county’s property;

2. The performance of an act that may later be subject to control, inspection, review or audit by the department for whom the employee works;

3. Receipt of money or other consideration for performance of duties that the employee is required to perform for the county; or

4. Competing with the county in providing a service or product.

D. Employees are responsible for assuring that their outside employment does not conflict with these rules.

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E. The county requires employees to report outside employment on an annual basis, or sooner if any changes in outside employment occur, using the procedure described in Multnomah County Personnel Rule 3-30-50.

8.70 Acceptance of Gifts or Fees

8.71 Acceptance of Gifts or Favors

All employees are prohibited from accepting gifts, gratuities or favors, whether nominal or significant, from firms, organizations, or their employees, agents or other individuals, who may or do conduct business with this office. A gift, gratuity or favor includes, but is not limited to, the transfer of property or services without receiving anything, or less than full value, in return.

In place of a gift or favor, it may be suggested that a Letter of Commendation for the employee be sent to the District Attorney. Reference should be made in the letter to the specific project, actions or program for which the employee is being commended. Flowers or a box of candy can be shared by the unit or division and an exception to this policy can be made for them. Any other request for an exception to this policy should be directed to the First Assistant.

DDAs are also required to independently comply with the Oregon State Bar Rules of Professional Conduct regarding any gifts, gratuities or favors.

8.72 Acceptance of Fees or Honorariums

DDAs are sometimes asked to serve as trainers, speakers and consultants to other organizations. On occasion an honorarium or a fee may be offered for the service. Multnomah County does have personnel rules and policies regarding these kinds of situations. According to County Counsel:

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“No employee may use [their] employment to obtain a financial gain and any outside employment involving the employee may not use county time, facilities, equipment, and supplies in order to accomplish those goals.”

“It must be communicated clearly that the activity in which the employee is involved is private and not as a county representative. The manner of expressing this must be clear and unambiguous.”

However, there are exceptions if staff members are participating at the direction of the District Attorney. There are options that are acceptable in these situations.

A. If the DDA provided the service while on their own time (vacation, personal holiday, leave without pay), it is permissible to accept the honorarium or consultant fee.

B. If the DDA provides the service while on county time they can request that:

1. The honorarium or consultant fee be donated to a recognized charity or a 501(c) (3) organization; or

2. The honorarium or fee be donated to the Multnomah County general fund.

8.80 Work Performance Expectations

8.81 Office Hours

The formal hours of operation in the District Attorney’s Office are 8 a.m. to 5:30 p.m. Monday through Friday. Attorneys must be prepared as a condition of employment in this office to work uncompensated, either in terms of money or time, extra hours, as requested by their supervisors. In short, it

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should be remembered that lawyers, be they public or private, may not expect to strictly work a 40-hour week, 8-hour day.

8.83 On-Call Duty

The District Attorney’s Office maintains an on-call DDA 24- hours a day. Felony DDAs are assigned to this on-call duty for a week at a time on a rotating basis.

“On-Call DDA” lists are prepared and distributed on a periodic basis. DDAs desiring to switch their scheduled on-call week must give written notice to the CDDA for Division I at least one month in advance.

8.85 Dress Policy

The Multnomah County District Attorney’s Office is a professional law office representing the State of Oregon and the citizens of Multnomah County. There is an expectation that all staff will represent, not only in their behavior, but also in their dress, the high professionals standards established for the organization. To that end, it has become necessary to provide greater clarity for all staff in defining professional business attire and to affirm that this dress policy applies to all office locations.

Staff of the District Attorney’s Office are expected to wear professional business attire during regular working hours. For women, professional business attire shall consist of slacks, casual pants, dresses, skirts, blouses, sweaters, suits, jackets and blazers. For men, professional attire shall consist of a shirt and tie with slacks or casual pants, or sport coats and slacks or suits. Male staff members are expected to wear ties during the business day. There are several items of clothing that are not considered professional business attire; for example, jeans, colored jeans, leggings worn as slacks, T-shirts with slogans or advertisements, sweatshirts, sweat suits, running outfits,

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shorts, cutoffs, halter tops or crop tops are not appropriate. Strapless, low cut tops, spaghetti strapped dresses, blouses, or tops, unless worn under a jacket or sweater while in the workplace, are not clothing for the workplace. Denim, of any color, is not an appropriate fabric for any type of clothing for the workplace. Pant styles such as Capri (just below the knee), Cropped (mid-calf), and “Flood” pants (ankle-length) are permissible if they are not tight and are not made of denim fabric. Cargo pants are not appropriate workplace attire. Thong sandals, flip-flops, and flat-soled backless sandals that fit between the toes are not appropriate for the workplace regardless if they are made of plastic, leather, or any fabric or material.

On occasion, jeans and other casual attire may be allowed with prior supervisor approval for employees working on Records, archiving, construction, IT related installations and moves, or similar special projects.

8.86 Debriefing – Staff Leaving the Office

When DDAs leave this office for employment elsewhere, they shall arrange for an orderly transfer of their files to another DDA. This shall be done with the of their immediate supervisor. All staff members will be asked to complete a short exit survey that is designed to assist in bettering the workplace.

All staff members shall turn over all office keys, identification cards, safe combinations and business cards to Human Resources. A departing DDA may take advance sheets and books, handbooks, or manuals acquired with their own funds, including continuing legal education materials obtained while attending sessions and meetings on an excused time basis.

Staff members must complete the debriefing process prior to receiving their last paycheck.

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8.87 Music in the Workplace

Employees may choose to play radios in the workplace. Employees must be aware that the privilege of playing a radio in the work area may be curtailed if any co-worker or employee from another work area objects to the radio playing.

8.88 Headphones

The use of personal headphones to listen to music or for other non-business purposes is not permitted.

9.0 Training, Education and Travel

9.10 Continuing Legal Education Requirements

Every attorney is responsible for meeting the minimum continuing legal education (MCLE) requirements established by the Oregon State Bar (http://www.osbar.org/mcle). Each attorney is responsible for maintaining records of CLE attendance and reporting the required CLE information to the Oregon State Bar during their reporting period.

New Oregon lawyers are required to complete the requirements of the Oregon State Bar New Lawyer Mentoring Program (NLMP) (http://www.osbar.org/nlmp). Each newly admitted attorney is responsible for completing the requirements of the program.

DDAs with five or more years of experience are encouraged to enroll as mentors in the NLMP. Doing so will offer the DDA- mentor an opportunity to share their knowledge and experience with a new lawyer.

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9.20 Education or Training Event Review Process and Travel Funds Authorization

All requests to attend an educational or training event, outside of the MCDA office sponsored opportunities, must be directed first to the employee’s immediate supervisor for review and consideration. In the case of DDAs, the request should first be directed to the SDDA to whom they report for initial review and preliminary approval. In the case of other staff members, requests should be directed to their exempt supervisor. If supported by the SDDA/exempt supervisor, and there is no cost or fee associated to the event, then the request must be submitted for review and approval by a CDDA or appropriate staff manager.

In the event there is a cost or fee associated with the educational or training event, (excluding parking and/or mileage reimbursement) such as airfare, lodging, registration and or per diem, then the event material shall be forwarded to the travel coordinator by the traveling employee to calculate the associated costs. The employee shall be expected to use the county CarShare option, when driving is the method of travel, unless specific circumstances exist and approval is obtained calling for personal vehicle use.

The CDDA or staff manager will then review all of the associated material and determine if they recommend approval, or not, of the education or training event request and notify the travel coordinator. This process includes events where the individual has been asked to make a presentation or otherwise participate at an event and the requesting agency or organization has volunteered to pay for some or all of the associated costs.

All CDDA or staff manager approved requests shall then be forwarded to the office finance manager for review and

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approval and then to the District Attorney for final review and authorization before travel and training occurs.

Finally, the completed Travel and Training form will be returned to the travel coordinator, who will register the traveler for the event, book the required travel services and initiate the payment of per diem.

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