grand jury protective order motion by 0WZ73X

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                   IN THE CIRCUIT COURT OF THE STATE OF OREGON
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                             FOR THE COUNTY OF CLACKAMAS
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 7   STATE OF OREGON,                           )   No. xxxx
                                                )
 8                       Plaintiff,             )   MOTION FOR PROTECTIVE ORDER
                                                )   OF GRAND JURY NOTES
 9         vs.                                  )
                                                )   (Oral Argument Requested)
10   xxxxxxxxxx,                                )
                                                )
11                       Defendant.             )
12         COMES NOW the defendant, by and through his attorney, __________, and
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     moves this court for an order protecting the Grand Jury notes from disclosure to
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15   anyone but defense counsel.
16         Mr. xxxxx has previously filed a motion seeking the Grand Jury notes of the co-
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     defendant’s statements on the grounds that the notes inevitably constitute Brady
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19   material. The state is expected to oppose the motion, basing their position on the
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     traditional need for keeping the notes secret until after the witness testifies at trial. It
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     is that deference to Grand Jury secrecy that this request for a protective order is
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23   intended to address.
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           The reasons behind the continuing need for keeping secret the statements of a
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     witness to the Grand Jury, even after an indictment has been made public, are not
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 1   obvious, but the defendant recognizes that the state often – but not always -- prevails
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     in defeating requests for pre-trial disclosure of the notes.
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           However, the Oregon Court of Appeals – in an analogous situation – has

 5   recently provided courts and attorneys with guidance in resolving the tension between
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     the constitutional requirement to provide the defense with exculpatory evidence,
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     including impeachment material, and the deference to tradition. In parole board

 9   hearings, just like Grand Jury proceedings, there are documents that are exempt from
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     being disclosed to the defendant, based on whether the interests in disclosure are
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12   outweighed by the interests in secrecy. ORS 192.502(5).

13         But in Fisher/Gordon v. Board of Parole, ___ Or App ___ (Dec 22, 2010), the
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     Court of Appeals upheld the Appellate Commissioner’s order that the Board turn over
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16   otherwise exempt documents to the defendants appellate attorneys, with a couple of

17   conditions: “(1) petitioner’s counsel is not permitted to inspect the confidential sealed
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     material until counsel has submitted a statement that counsel will not disclose the
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20   material to petitioner and, if necessary, will file a redacted or confidential brief; and

21   (2) counsel must comply with an order barring further disclosure of the sealed
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     material.“
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24         The Fisher/Gordon court noted that it has the “inherent authority to issue a
25   protective order,” but it also found specific statutory grounds for doing so. Fisher at
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 1   ___. Similarly, this court has the inherent authority to issue a protective order.
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           The Board of Parole had argued that the need for secrecy was essential to
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 4   eliciting statements from victims and informants, a claim identical to the primary
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     historical reason for not turning over Grand Jury notes, but the Fisher Court noted that
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     “Fisher is not asking this court to order that the confidential information be available
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 8   to him or to the general public; rather, Fisher seeks an order allowing his appellate
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     counsel to view the confidential sealed material in order for the appellate counsel to
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     represent Fisher in this petition for judicial review.” Fisher at ___.
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           Applying the holding of Fisher/Gordon to the case at bar, even assuming the
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     state can muster a concrete argument why public disclosure – or disclosure to the

15   defendant – of the Grand Jury notes is not appropriate, those concerns are irrelevant,
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     where the court can order that the notes be provided solely to defense counsel, with
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18   the express provision that they should not be shown to anyone else, including the

19   defendant.
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           In sum, the Oregon Court of Appeals has already decided that the traditional
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22   need for secrecy regarding witness statements cannot trump a review of those
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     statements when the defendant seeks a protective order that only permits defense
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     counsel to review those statements. While the context is different, the same logic
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 1   applies here: the only reason not to turn over the statements of the co-defendant
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     before the Grand Jury is the traditional deference to secrecy, but that deference is
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     satisfied when a protective order is in place.

 5         If and only if the notes prove to be Brady material, as the defendant expects
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     they will be, would the defense counsel ask the court to lift the protective order.
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 9         DATED this 30th day of May, 2011.
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12                                            _____________________________

13                                           Attorney for Defendant
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 2                                Certificate of Service
 3   On May , 2011, a true copy of the attached DEMURRER was mailed to the district
     attorney’s office of Clackamas County.
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                                         _____________________________
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                                        Attorney for Defendant
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