Secret List on Trial – ACLU Challenges City Scheme in Court

From the Portland Mercury, January 15 2009

Deputy District Attorney David Hannon had a surprise waiting for him in Room 536 of the Multnomah County Courthouse last Wednesday morning, January 7, in the form of attorney Elden Rosenthal.

Hannon, whose salary is paid by the city as part of its controversial Neighborhood Livability Crime Enforcement Program (NLCEP), had been expecting to argue the constitutionality of the program with Lisa Pardini, Brian Schmonsees, and Spencer Hahn, three public defenders he has met in court before.

Instead, without warning, Hannon was facing the prospect of making the city’s case for the NLCEP’s constitutionality against Rosenthal, one of Oregon’s most celebrated and experienced trial attorneys, whose resumé includes winning $12.5 million in damages against White Aryan Resistance leader Tom Metzger for inciting skinheads to kill Ethiopian immigrant Mulugeta Seraw in 1991.

Several observers agreed: Hannon looked pretty scared.

Pardini, Schmonsees, and Hahn are each defending clients who have been charged with felonies for residue drug possession, instead of standard misdemeanors, because their names are on the city’s 350-strong secret list of downtown offenders. The three defense attorneys have now partnered with Rosenthal, whose services were secured by the American Civil Liberties Union (ACLU) of Oregon, to argue before Judge Dale Koch that the secret list is unconstitutional.

Further hearings are expected in late February, with a verdict expected from Koch sometime in March.

The Mercury first uncovered details of the secret list last April, when it emerged that 52 percent of those on the then 408-strong list were African American—even though African Americans make up only six percent of the local population. In May, the Mercury discovered that the criteria for getting on and off the list aren’t written down anywhere.

Rosenthal grilled Jeff Myers — the Old Town cop who first came up with the program in 2003—about its details in depth, over a day and a half of hearings last week. Hannon, meanwhile, tried to get Myers to talk about the success of the program in reducing downtown crime, but Rosenthal continually objected to Hannon’s line of questioning on grounds of relevance.

“The issue is not how successful or not the program has been,” he argued. “The issue is whether or not secret lists are constitutional.”

To the defense, the secret list seems to be a classic bill of attainder, which is forbidden by the Constitution: The state cannot single out citizens for harsher treatment because they are on any list. The defense also maintains that the list may violate equal protection and equal privileges protections in the federal and Oregon Constitutions—the government can’t treat people differently, under the law. Furthermore, the fact that the list is secret, and there is no way for a person to challenge one’s status on the list, would seem to violate constitutional due-process protections.

“In our system, secret police lists have no place, and that’s what this is about,” Rosenthal told the Mercury last Thursday, January 8. He declined further comment on the case for the time being.

Myers told the court that the NLCEP program had been “put on steroids” in the fall of 2007, following former Mayor Tom Potter’s decision to sunset the controversial Drug-Free Zones program, after a consultant’s report damned their racial inequity.

Officer Myers was also ordered by Judge Koch to review his boxes of information relating to the list and produce—free of charge—any information relating to the enhanced prosecution aspect of the list. Previously, the police bureau would only agree to do this for the defense if they were paid over $3,000.

“As much as I knew about what was going on, this was very enlightening in terms of how we’re focusing on these particular offenders,” said Judge Koch at the conclusion of the hearing. “Regardless of how everything works, the issue is whether it meets statutory and constitutional muster, and we’ll resolve that when we come back in February.”

City Commissioner Dan Saltzman, who has taken over responsibility for the police bureau under Mayor Sam Adams, wrote an editorial for the Portland Tribune praising the NLCEP program on December 18, 2008.

“Dan’s very supportive of the program,” says Saltzman’s chief of staff, Brendan Finn. “But obviously this is a court proceeding and we will await a verdict to see how we should proceed.”