IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR MULTNOMAH COUNTY THE STATE OF OREGON, Plaintiff, Case Nos. 1110-51989 , 1203 43073, V. 1112 •53209, 1111 -52423, CATHY ALEXANDER, 1112 •53169, ANDREW BARNICK, 1110 •51946, LARA BASKIN, 1111 •52420, AXCELLE BELL, 1112 •53160, JORDAN LEVI BENNING, 1110 •51950, LAURIE BENOIT, iin •52408, GRANT BOOTH, •53304, FOREST A. BRANNON, 1112 •53207, BENJAMIN BRYAN BURSON, 1112 1201 -41046, SARAH C. COBLE, 1110 •51990, CLIFFORD LA WAYNE COLLINS, 1112 •53516, STEVEN EUGENE DAILY, (2) 1112 •53505, MATTHEW DENNEY, 1203 •43540, CHRISTINA MARIE DOYLE, 1112 •53507, MITCHELL DRINKWATER, nil •52422, EMMALYN LORRAINE GARRETT, •52433, JAMES DOUGLAS GLESS nil 1112 •53508, JOSEPH GORDON, nil •52427, NADIAFAE GREENE, •53509, PHILLIP GREENE, 1112 nil •52426, HANNAH ABIGAIL GRUNDNER, •53182, 1112 JEFFREY SCOTT HAMILTON, 53151, 1112. ANGELA IRENE HAMMIT, (2) 51951, 1110. MARIO HARO, •53515, 1112. BENJAMIN A HARRIS, 53302, II12- RONDA HARRISON, 53305, CARSEN JEAN HARRISON-BOWER, 1112. ni2. 53162, KELLER DEAN HENRY, (3) 43074, 1203. TODD ANDREW HERMAN, 53506, 1112- ASHLEY LYNN JACKSON, 43076. RHONDA ELAINE JELINEK, 1203- DA# 2239014 ORIGINAL Page 1 DANIEL M. KAUFMAN, 1110 -51959, DAN V. KELLER, | 1202 -41613, JUSTIN ALEXANDER KERSTON, nil -52419, CHASTIN TAYLOR LXKE, 1112 -53517, NEFI DAVID MARTINEZ-BRAVO, 1203 -42615, CAMERON SCOTT MATTA, 1203 -42643, MATTHEW MGLEJ, | 1203 -43541, JACQUELYN BEATRICE MILLER, nil -52668, JONAH CLINTON MILLETT, 1203 -43075, JACK PETER MONGEON, 1112-53179 , ELIZABETH E. NICHOLS, 1201 -40039, DEBORAH NORTON, 1203 -43542, TARA D. PARRISH, 1110 -51991, ELI FRANKLYN RICHEY, 1112 -53510, JOHN WADE SAUNDERS, 1203 -43545, KATHARINE MARIE SHARKEY, 1203 -43077, TAYLOR JEFFREY SHARPE, 1112-53514 , NICHLAS STEPHENS, 1203 -42644, JEFFREY ARLO STONE, 1112-53487 , JAMES VERNON TARDY, 1112-53175 , TROY ANTHONY THOMPSON, (7) 1203 -43082, MATTHEW WALSH, | nil -52512, THEON MATTHEW W[EBER, nil -52515, BRAD MATHEW WHISLER, nil -52699, CAMERON WHITTEN, (3) nil -52716, CAITLIN TRIALL WlllsON, I1I2 •53717, YEHONATAN GUR WJlLSON, nil -53301, •43078, MICHAEL EARL WITHEY, 1203 JAY ERIC YUNGERMIAN, nil -52432, \ni •52698, -43072, 1203 •52431, Defendants. nil -53180, 1112 -43081, 1203 -52430, nil •53159, 1112.•43080 , 1203 •43079. 1203. ORDER GRANTING IN PART, DENYING IN PART MOTION TO COMPEL DISCOVERY This matter came for hearing before the court on April 2, 2012. Mr. McBreen and Mr. Berger argued on behalf of Defendants, Mr. Lowney argued on behalf ofthe District Attorney's Office. Mr. McBreen's motion on behalf of his client John Saunders seeks an order compelling production of 13 items.Mr. 2 DA# 2239014 ORIGINAL Page 2 Berger's motion on behalf of his client Ca itiin Wilson seeks an order compelling production of five items. The court makes the following orders as to the items sought. 1. Identity of informants or undercover officers: ORS 135.815(l)(a} requires the district attorney to disclose to defendants the names and addresses of persons whom the district attorney intends to call as witnesses at any stage of the trial. Mr. Lowney stated he had no information to indicate any undercover officers or informants were utilized or would be giving testimony. Defendants argue the district attorney's office has an affirmative duty to seek out any exculpatory evidence. An individual prosecutor has a duty to learn of any exculpatory evidence known to others acting on the government's behalf, including police. Kyles v. Whitley, 514 US 419, 437 (1995). See, also, Strickler v. Greene, 527 US 263, 280-281 (1999). In this case, the prosecutor has a duty to inquire if there were any Informants or undercover officers used in the Occupy Portland operations and whether they have exculpatory information. The court grants this motion. 2. Materials, directives, policy, training manuals, internal memoranda and other relevant materials on use of pepper spray or use of police animals, including reports by officers vi/ho rode poiice animals during Occupy operations. ORS 135.825 requires disclosure of the occurrence of a search or seizure, and upon written request by the defense, any relevant material or information obtained thereby, the circumstances of the search or seizure, and the circumstances of the acquisition of any specified statements from thedefendant (emphasis supplied). The court grants this motion as to any written reports by officers who rode police animals or used pepper spray during Occupvoperations. By their nature, those reports are likely to contain information regarding the circumstances of a seizure ofa defendant. Directives, policy, training manuals or internal memoranda that are not being introduced into evidence by the district attorney are not required to be disclosed. Though the items may be generally relevant, they are not materials that address a seizure, or seizures, that occurred or the circumstances of the seizure or seizures. 3. After-incident reports: Any after-incident report that addresses an Occupy Portland event that resulted in seizures of individuals or contain statements of witnesses at trial needs to be disclosed unless otherwise protected from disclosure under ORS 135.855. The court grants this motion. Ifthe District Attorney's office considers "reports that concern self-critical analysis of an incident" to be work product or contain work product, then the court will allow those materials to be filed under seal and to be reviewed by the court in an in camera inspection to determine which materials should be protected and which should be disclosed. 4. Internal Affairs Division reports: The district attorney is not obligated to turn over IAD reports regarding officers involved in arrests as they are not relevant to the circumstances of a seizure or seizures that occurred. The court does not grant this motion. DA# 2239014 ORIGINAL Page 3 5. Pre-incident notes, memoranda, documents, directives or other materials discussing the Occupy Portland demonstration:] Any written report or memoranda or directive that includes information indicating how the City of Portland and Portland Policei Bureau planned to conduct crowd control or arrests in the Occupy Portland operations must be disclosed. Any reports, memoranda, video or other materials documenting discussions that occurred during a meeting with Occupy Portland protest organizers must be disclosed. Additionally, any pre-incident reports containing written statements of any witness must be disclosed. 6. Information concerning use of confidential informants or undercover officers: As indicated above, the District Attorney's office has an obligation to determine whether any confidential informants or undercover officers possess exculpatory information. However, the District Attorney's office is not required to disclose information concerning the use of confidential informants or other intelligencegathering techniques that did not result in reports or produce other discoverable evidence. 7. Information regarding decisions to issue violations or criminal cases: Defendant argues this information is determinative of whether arrests are lawful under the equal protection provisions in the,Oregon or United States constitutions. Even if a defendant might find information and material inithe possession ofthe state helpful to the defense generally, that material must only be turned over if it falls within the statutory directive or must be disclosed for independent constitutional reasons. State v. Divito, 330 Or 319, 326 (2000). A policy decision by theDistrict Attorney's office on whether to charge certain behavior by violation or crime is not information that discloses whether a seizure occurred and the circumstances of that I particular seizure were and is not required to be disclosed by the District Attorney. However, if there were policy decisions, directives or orders followed by the Portland Police Bureau in Occupy Portland cases to conduct arrest or issue citations, then those reports would address the basis for arrests, and as such, the circumstances of a seizure underORS 135.825. The issue becomes whether the policy decisions, directives or orders or within the possession or control of the District Attorney. The fact that items may be under control of a separate agency does not mean they are beyond the reach ofthe District Attorney's office. See, Store v. Koennecke, 274 Or 169 (1976) (The prosecutor is responsible for evidence in the possession of the police); and State v. Warren, 304 Or 428 (1998) (Caseworker notes in Children's Services Division investigation). So much of the files as would be pertinent to the investigation, and is required to be disclosed to the defendant under the discovery statute, must be made available to defendants. Sfote v. Warren, 304 Or at 433. The state's discovery obligations do not include a duty to expand the scope of existing documents, such as police ijeports, to incorporate additional information of which only the police are aware. State v. Divito, 330 Or at 328. Whether police officer notes are discoverable depends on whether they are or contain relevant written or recorded statements or whether they are fragmentary and merely steps in the preparation of a report. State v. Johnson, 210 Or App 733, 740-741 (2007). The DA# 2239014 ORIGINAL Page 4 Johnson court remanded the case forthe court to allow the defense to review the police officernotes and forthe court to determine whether the notes were discoverable material so that failure to turn them over constituted a discovery violation. 210 Or App at 743.