The View From Here

The Power of Patience

by Olcott Thompson, OCDLA President

Aug/Sept/Oct 2017 issue of The Oregon Defense Attorney

I write this after the legislature has adjourned and Salem, particularly around the Capitol, is much quieter and less congested. As I was thinking about the legislative session, it occurred to me that I no longer feared the legislature being in town. Instead, I was sort of glad it was.

Back in the 1980s, when I first started practicing law, the legislature being in session usually meant more problems for our clients. The longer the session went, the more likely there would be even more problems. More crimes, harsher possible sentences, and the like.

Why the change? In a word, OCDLA.

This session, which just ended, showed that OCDLA is no longer a little group of lawyers with goofy ideas about “rights.” Over time, the organization hired a lobbyist and began playing defense—and got very good at defense—stopping the really bad and then even the not-so-bad bills. In this past session, implied consent blood draws and any drug DUIIs along with other bad bills did not get out of committee.

We also started playing offense. Sowing seeds and nurturing little gains with patience and slowly, ever so slowly it seemed at times, moving good ideas forward. The Brady bill passed a few years ago with tweaks so the prosecutors could figure out how to comply with it.

Bills to record grand jury proceedings have been introduced in the legislature since at least the 1980s. Until very recently they never went anywhere. This year our bill went all the way, and unless Governor Brown completely surprises everyone, in two years grand jury proceedings will be recorded in every county in Oregon.

How did it happen? OCDLA has worked for over 30 years to educate legislators as to why accountability in grand jury proceedings was needed and why recording was the only way to ensure that accountability. Over the previous two sessions a grand jury recording bill made it out of a committee and then passed one house. Our lobbyist worked hard but the votes just were not there. This year the votes were there in part because more of us chimed in and contacted our legislators. OCDLA members—you—stepped up and let your legislators know they needed to vote yes and why. Because we told our legislators, they knew, finally, why grand jury recording is so important. Our lobbyist can spread the word to legislators as a representative of OCDLA, but she has only one representative and senator that are her “own.” The rest of us are constituents of the rest of the legislators. Senators and representatives pay far more attention to their constituents—the people who vote for them—than they do folks, including lobbyists, from outside their district.

Why did this take so long? In a word, credibility. Just as it takes all of us years to gain credibility with judges and DAs, it has taken long years for OCDLA (like every other organization) to attain credibility in the legislature. Credibility is attained through perseverance and patience. Legislators—like judges—need to be educated, and that education takes time. We keep raising good ideas with legislators and keep explaining what we believe is the correct interpretation of a law as we slowly educate legislators, trial judges, and appellate judges as to why we are right.

Change happens but often it is slow, especially with law. It may feel like banging your head against a brick wall, but continuing to raise what you feel are the correct interpretations of the law may eventually result in the court saying—after many years—you are right. Think how many years it took for the basic right to counsel to be recognized and then extended to state prosecutions. It took years and years for Justice DeMuniz in deciding Lawson to recognize what we defense lawyers had been saying all along: the prosecution, as the proponent of the eyewitness testimony, should have the burden to show it is admissible, not us.

What does this mean going forward? Stay patient. But keep raising meritorious issues (and whatever else you can to help your client). Stay patient. But contact your legislators and build a relationship with them. Stay patient but educate judges, legislators, and people you talk to about why what is important to you is important. Stay patient. As you do this you gain credibility with judges and even DAs. You make DAs work, and the results for your client are better when the prosecution must do their job. Stay patient and justice will prevail. Sometimes it just takes a long time.

As an aside, thank you for reelecting me to the OCDLA board, and thank you, board members, for electing me president. I look forward to continuing to serve all of you. We just finished a great board retreat, and OCDLA is in good hands with its great staff including its still somewhat new executive director and our new lobbyist, Mary Sofia. I would like to recognize some new life members but we haven’t had any in a while, so please become a life member. You’ll never have to pay dues to OCDLA again, and I will present you with a plaque not only suitable for framing but already framed!