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{{{{how are the cops going to handle protests if they can't even book you for a petty offence like blocking traffic))))

03/01/03

ROBIN FRANZEN

and JOSEPH ROSE


Unless Oregon's Legislature intervenes in the coming days, it will be a bold new world for burglars, car thieves, prostitutes, junkies and a host of other "low-level" criminals who feast on neighborhoods.

Facing budget shortfalls, Oregon's chief justice has ordered the courts not to hear such cases until July 1, when the new fiscal year begins.

That means anyone arrested for stealing a car, breaking into a home or passing a bad check will taken to jail for a few hours -- if that -- and then released, leaving them free to commit further crimes with little worry of punishment. Some may see their charges reduced or dismissed when the cases finally are heard.

Chief Justice Wallace Carson's order was prompted by budget cuts that take effect Saturday. The cuts dramatically reduced the money available to the court system and public defenders.

The lack of public defenders is crucial. Under the state and federal constitutions, all defendants are guaranteed legal counsel, even if they can't afford it. Without a defense, there can be no prosecution.

Multnomah County District Attorney Michael Schrunk is campaigning against Carson's order. In a memo sent this week to court officials and others, Schrunk declared that he would continue filing misdemeanor and low-level felony cases in the first week of March while pursuing "all legal avenues" to undo the order.

Schrunk acknowledged, however, that if he does not prevail, he would be forced to bring lesser charges against as many 3,500 people accused of misdemeanors and other property crimes that do not involve violence. Instead, they would face a maximum fine of $600.

In January, Schrunk told police that he no longer would file charges against some car thieves and prostitution operations. That move was prompted by reductions in the county budget, which led to layoffs of nine prosecutors. This week, as Schrunk contemplated allowing criminals even more latitude, he said: "I should be fired for this. But these are extreme times."

Schrunk said in his memo that pushing thousands of cases into July, when they will overwhelm the system, makes no sense. "While the court may feel that it is solving a current problem," he said of Carson's order, "it will likely create future problems."

Multnomah County Sheriff Bernie Giusto is imploring Portland police to continue making arrests, despite cuts in jail space and scaled-back prosecutions.

"The only part of the system that's left is arrest," Giusto said, dubbing his new jailing policy as "say hello, say goodbye booking."

District attorneys of the five largest counties, key lawmakers and leaders of the criminal defense bar met Thursday at the Capitol to discuss how to cut the cost of public defenders, including temporarily decriminalizing certain misdemeanors by making them violations that don't require appointment of legal counsel. At least two of the top prosecutors say they will entertain the idea out of necessity.

Get out of jail free Before the current cuts, which will close courthouses to the public on Fridays, city and county budget reductions already were nibbling away at Oregon's public safety network.

Portland, for example, lost police support personnel and slashed officer overtime budgets.

And in 2001, Multnomah County jails effectively started releasing inmates out the back door to make room for new suspects coming in the front. As a result, some criminals began figuring out that a trip to jail had become little more than an interruption to their day.

That became frustratingly clear to police in December in Southeast Portland's Lents neighborhood.

Responding to complaints from neighbors, officers served a search warrant at an apartment where methamphetamine was being cooked in the kitchen. The man who rented the place was arrested and taken away in the squad car.

Hours later, the suspect was out of jail and standing outside his apartment, watching a hazardous materials crews clean up the lab. "He wanted to know if he could go in and get his stuff out," recalled Tracy Chamberlin, a senior neighborhood officer in East Precinct.

Now, with state cuts piled on top of local ones -- and the threat of more -- many say the system is spiraling downward, with no guarantee it will bounce back.

Among the most pressing issues is how to pay for public defenders. In the last four months of 2001-03, the state faces a $10.1 million deficit in its public defender fund, which was reduced by $22.4 million in consecutive special legislative sessions last year.

To deal with the lack of public defenders, the courts are resorting to a radical plan to delay prosecution of property offenses, other nonviolent crimes and certain probation violations until the start of the new budget on July 1, when money for lawyers presumably begins to flow again. Many public defenders say that defendants have a right to timely prosecution and that charges should be dismissed if the state can't provide legal counsel.

Deal marathon Meanwhile, some district attorneys are scrambling to resolve cases any way they can to avoid creating a glut this summer: Today in Lane County, for example, prosecutors will hold a let's-make-a-deal marathon court session, during which 250 petty crime defendants will get the chance to plead guilty to lesser charges.

Though hesitant, some district attorneys say they'll consider treating certain misdemeanors as violations -- and perhaps even certain Class C felonies as misdemeanors -- if it involves changing laws to give them wider discretion to ratchet charges downward.

"Some (criminals) will think this is a vacation from accountability, four months to do anything as long as they don't engage in violence," said Marion County District Attorney Dale Penn. "So the bottom line is, I'm willing to talk about things, but I'm also concerned that any temporary solution would lead to permanent decriminalization. I'm absolutely opposed to that."

As for Lane County District Attorney Doug Harcleroad, he said: "If me treating misdemeanors as violations means I can have (defense) lawyers on serious felonies, I'd probably make that trade, but I don't like it."

Even if indigent defense is momentarily spared, however, Schrunk said he still won't be able to prosecute the same volume of cases he once did. Multnomah County is faring worse than others, thanks to competition with urban social service programs for county tax dollars, and business and property tax revenues that are declining with the economy. The nine prosecutors Schrunk lost on Jan. 1 aren't coming back, and he stands to lose another dozen in the next budget.

At the jail, Giusto says the spirit of Rocky Butte -- the former stone lockup that offered little more than a cell to "warehouse crooks" -- is being resurrected.

Giusto is out of money.

No more "low-roller offenders" are kept behind bars. And by summer, he said, the jail could be releasing a lot of high rollers, people arrested for far more serious crimes.

The sheriff's budget has shrunk by $8 million and the jail has closed 497 beds in the past 21/2 years. The future looks even bleaker. Because of further anticipated trims, he might have to close another 557 beds between June 15 and July 1, prompting both Giusto and Schrunk to urge county commissioners to include money for public safety in any money-measure they send to voters.

Courthouse, crime lab For the first time in state history, courthouses statewide will close to the public on Fridays, the result of losing $21.4 million this biennium, $13.6 million of it in the final four months of the budget year. Though prosecutors and others have questioned the closures, which run from March 1 to June 30, as a political ploy, court officials insist they are necessary to stretch a smaller staff over fewer days.

Cuts to state crime labs present another huge quandary for police agencies and prosecutors, who say evidence gathered by police may go untested. The Oregon State Police closed one lab last summer, laid off 85 of its 135 lab technicians and evidence specialists in February, and may cut three of the remaining seven labs in July if the division's budget is not increased.

Only one of the five DNA and forensic specialists who worked the Ashley Pond-Miranda Gaddis murder case in Oregon City remains. Three who gathered evidence in the case against Edward Morris, accused of killing his wife and family, were laid off. Many are taking jobs out of state.

Dave Schmierbach, interim director of forensic services for the state police, said investigators will just quit trying.

"If they get a hit-and-run accident or if they've got a small amount of marijuana," he said, "they're just not going to turn it in to be analyzed."

Prosecutors worry such cuts could let major criminals escape prosecution, or cause their cases to be dismissed or lost at trial due to insufficient evidence. In Hood River County, District Attorney John Sewell said forensic experts were unavailable Feb. 12 to process the scene in his county where a body was discovered.

"When you start getting into a level of expertise that goes beyond a typical detective's training, you want a criminalist there," he said.

For the immediate future, however, no one is sure what's going to happen, with tiny pieces of trace evidence or the entire scope of Oregon's criminal justice system.

On Wednesday, Rep. Max Williams, R-Tigard, chairman of the House Judiciary Committee, compared the state's overall financial health to a terminal cancer patient who's just had a heart attack. Prosecutors are frustrated, he's frustrated, and none of the choices look good, he said.

"My view is that the state needs to adequately fund public safety," he said. "But how do you say you are going to do that on the back of education and human service programs when they are throwing patients out of nursing homes?" Robin Franzen: 503-221-8133;  robinfranzen@news.oregonian.com Reporters Mark Larabee, Maxine Bernstein, Ashbel "Tony" Green and Patrick Harrington contributed to this report.