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Two weeks ago, a news report in Oregon announced that a judge found senior prosecutors in Multnomah County had violated their obligation to turn over exculpatory evidence in a high-profile murder case. Rather than encourage law enforcement to do the right thing and disclose such evidence in future cases, the judge’s ruling looks to have inspired prosecutors to instead change their practices so they do not document potentially exculpatory evidence during preliminary investigations of a case. Of course, the failure to document evidence that casts doubt on the guilt of the accused does not actually relieve the prosecution of its constitutional duty to disclose it, but in practice it will certainly have that effect. What Multnomah’s prosecutors ultimately revealed is that they are willing to sacrifice accuracy—and potentially public safety—to avoid creating a paper trail that may later help some criminal defendants.     

Stepping back, a look at the report shows either incompetence or bad intent, both by prosecutors and police: 

A Multnomah County judge on Monday ruled that senior prosecutors violated evidence discovery obligations in the high-profile murder case stemming from the 2014 fatal shooting of Ervaeua Herring.

They “failed miserably” to promptly share with the defense a Portland police detective’s notes reflecting a statement by a key cooperating witness who initially did not place one of the accused at the scene of the crime, Circuit Judge Gregory F. Silver ruled from the bench.

Judge Smith was not only unhappy with the senior prosecutors, but also with Detective Anthony Merrill:

That’s because Merrill’s summary failed to acknowledge that the witness, Latasha Davis, in a Feb. 22, 2016 interview with police and prosecutors, initially named five men who fired gunshots in the killing of Herring, and did not identify defendant Jeffrey Sims as among those. Merrill took notes of that interview but didn’t record it.

All of this is enlightening and important. But, the real news may be this nugget: “During oral arguments, it was revealed that the district attorney’s office has changed its practice, directing prosecutors and police not to take notes during initial debrief meetings with potential cooperating witnesses [in cases with multiple defendants].” One must wonder, why would it be beneficial to refrain from taking notes during such critical meetings? The only goal for such a practice is to avoid generating documentary evidence that may later prove exculpatory. While blatantly attempting to circumvent a constitutional requirement to disclose exculpatory evidence is troubling enough, what about the other potential costs? Failing to take notes not only potentially undercuts a defendant’s right, but it also raises real questions about the quality of the overall investigation. Sooner or later, this practice will hinder the State’s ability to solve a crime. Though the public will never know and never be able to trace that outcome directly back to this practice, it is important to call out the real choice the DA’s office has made here: winning at all costs. Unfortunately, in Multnomah County, as in so many jurisdictions in this country, this is not a big surprise.

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