Wednesday, June 3, 2015

Some thoughts on Marion County DA's decision not to prosecute Michael Rodgers

The Marion and Yamhill County D.A.'s offices jointly announced earlier today that no charges would be brought against Michael Rodgers, the state IT worker who publicly admitted being the source of the leaked emails that Willamette Week has been writing about for the past several months. The official statement from the prosecutors first lays out their factual reconstruction of the events in question, and then concludes:
After fully assessing all the facts in this investigation, DA Walt Beglau and DA Brad Berry have formed the opinion that Michael Rodgers violated the law. Specifically, Rodgers released both public and private emails that were previously contained on a State server and preserved as a State Public Record prior to the processing of any valid public records request. In doing so, he exceeded his authority as a public servant and acted independently outside of any governmental processes in place to ensure the proper dissemination of potentially sensitive information. Rodgers did this despite having other options to bring his concerns to the authorities. Additionally, he should have known that the emails themselves were further backed-up on redundant state servers and, contrary to his claim, could not be destroyed. 
It is the opinion of DA Walt Beglau and DA Brad Berry that this improper conduct violated state policies and is a violation of the Class C Misdemeanor crime of Official Misconduct in the Second Degree found in ORS 164.405: 
A public servant commits the crime of official misconduct in the second degree if the person knowingly violates any statute relating to the office of the person. 
Official Misconduct in the Second Degree is punishable by a maximum of 30 days in jail and a $1,250 fine for each violation. 
Official Misconduct in the Second Degree is distinguished from Official Misconduct in the First degree, in part, because no intent to gain a personal benefit is required. 
The goal of any District Attorney in any case is to obtain a just result. In deciding whether to pursue a criminal case, it is the duty of the District Attorney to consider whether it can be proven beyond a reasonable doubt, whether the resource allocation required to do so is appropriate as measured against the offense, and whether a conviction is necessary to obtain justice. 
Under the totality of the circumstances in this case and after a thorough review of the above factors, the mutual decision of these two District Attorneys is that justice would not be served by filing criminal charges against Mr. Rogers [sic]. 
There is no actual "whistle-blower" defense in Oregon criminal statutes. Even so, the conduct of Mr. Rodgers appears precipitated by a perceived rational [sic] that stems from extraordinary circumstances seemingly unparalleled in the Oregon political landscape.

Various thoughts on this statement:

1) Obviously, the end result is a win for Michael Rodgers. A declination letter such as this one is something of a Holy Grail for criminal defense lawyers. Although considerable resources were probably expended on the defense side already, the avoidance of trial means that the financial spigot is at least shut off now; and more importantly, there won't be the trial itself.

2) What does it mean that the DAs "formed the opinion that Michael Rodgers violated the law"? Well, it is what they said: their opinion. This is the downside of not having to go to trial, in that there is no forum to test the prosecutors' assertion. Of course, I doubt that there is anyone in Rodgers' position who would say, "No, wait, I demand to be indicted so that I can prove my innocence!" (And of course, an acquittal does not necessarily mean that the defendant is innocent in the sense of proven not to have committed the crime; it may simply mean that the prosecutor failed to meet the required burden of proving guilt beyond a reasonable doubt.)

3) How much weight should be accorded to the prosecutors' opinion? In Bordenkircher v. Hayes, the Supreme Court ruled that a prosecutor is entitled to charge a criminal suspect with a crime so long as the prosecutor has probable cause to believe that the suspect committed the crime:
In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.  Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation" so long as "the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification."
Incidentally, this explains why it probably would not have been improper for a Marion County prosecutor to have told Rodgers (as Rodgers recounted in his Willamette Week interview) that if he did not resign from his position, he would face 6000 counts of official misconduct.

Under Oregon law, probable cause means "there is a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it." (This is a higher standard than what the U.S. Constitution requires.)

So, the upshot is that the two DAs believe it is more likely than not* that Michael Rodgers engaged in the conduct that is prohibited by official misconduct in the second degree.

* NFL fans should find this standard familiar in the wake of DeflateGate.

4) Note the difference in the standard of probable cause for initiating prosecution, versus proof beyond a reasonable doubt for conviction. This means that, legally speaking, a prosecutor may bring charges against a suspect even though the prosecutor doubts that he or she can prove guilt beyond a reasonable doubt. The problem for the prosecutor is that such a case is likely to result in an acquittal - in other words, a loss in the W-L record. It will consume time and resources that could have been used to pursue other, more provable cases.

5) What about whistleblowing as a defense? The prosecutors note that there is no whistleblowing defense in Oregon criminal statutes. The Oregon whistleblowing provision is contained in ORS 659A.199-224 and provides an employment defense against retaliation. Most likely, though, the necessity (or "choice of evils") defense would have been raised to justify the leaking of the emails. That defense, codified at ORS 161.200, reads:
(1)Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when:
(a)That conduct is necessary as an emergency measure to avoid an imminent public or private injury; and
(b)The threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.
(2)The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.

Whether this defense would specifically apply to Rodgers' actions would depend on the facts as found by a jury, but the DAs' conclusion seems to concede that the "extraordinary circumstances" might at least fit within the defense.

6) The last question I have is one we'll almost certainly never get an answer to, but it is the extent, if any, to which the prosecutors were influenced by Governor Brown's statement that Rodgers shouldn't face charges "[i]f the investigative findings align with what WW has reported...."