Prosecutor Cuts Judge from List

The Register Guard (Eugene, OR), July 26, 2002 | Go to article overview

Prosecutor Cuts Judge from List


Byline: BILL BISHOP The Register-Guard

A Circuit Court judge's decision to change a plea bargain and give a more lenient sentence in a minor theft case has prompted Lane County's prosecutor to exclude the judge from hearing any more criminal or civil cases involving his office.

The move is allowed under Oregon law, but used only rarely by prosecutors around the state. It's more common for prosecutors and defense lawyers to quietly criticize sentencing decisions than to make such a sweeping and public expression of distrust. It has happened only once before in Lane County's recent history.

It's not clear whether the disqualification will mean a bottleneck of cases for the county's other circuit court judges as they pick up the slack. Circuit court judges in Lane County deal with about 7,500 misdemeanor and felony cases filed annually by the district attorney's office. There are 15 judicial positions, although one is vacant.

District Attorney Doug Harcleroad invoked the law earlier this week against Judge Ted Carp, 58, who was appointed to the bench in 1995 after 24 years as a trial lawyer.

The law allows any party in a court action - a lawyer, citizen or prosecutor - to file a sworn statement alleging that a judge can't be fair and impartial toward them.

When such an affidavit is filed, the judge isn't allowed to hear any part of a case involving the party unless the judge can show the allegation is false or intended to delay a case.

Circuit Judge Mary Ann Bearden, who is the presiding judge in the county and assigns work to other judges, didn't respond to repeated requests for comment. Local court administrator David Factor also wouldn't comment.

This is the first time Harcleroad has invoked the law in his 28-year legal career, Chief Lane County District Attorney Kent Mortimore said. Harcleroad is out of state and unavailable for comment.

"It's absolutely not personal. It's business," Mortimore said.

The squabble stems from Carp's decision to change the sentence in a plea agreement that another judge had promised to impose in the case of Joseph Robert Penland, a 43-year-old with a record of convictions for burglary and theft running back to 1978.

Penland had agreed to plead guilty to theft for selling a stolen credit card machine in exchange for the prosecutor dropping charges of burglary and theft. Penland was accused of stealing the machine from a Springfield restaurant where he worked on the cleanup crew. The district attorney also dropped a probation violation charge. Both sides agreed to a 26-month prison term.

To help work out the compromise, Circuit Judge Maurice Merten bound himself to the sentence - meaning that both sides could be assured of the sentence.

Such an assurance by a judge can be the key to resolving cases when both sides are making big concessions to avoid the risk of going to trial.

When a judge binds himself to a sentence, it becomes part of the official record of the case before sentencing.

But Merten was on vacation when the sentencing hearing came up and the case fell to Carp.

A transcript of the July 18 hearing shows Penland's probation officer attended, even though neither side invited her or intended to have her testify. Carp independently asked the probation officer for her opinion about an appropriate sentence for Penland.

Among other things, the officer said Penland had been diagnosed with mental illnesses that could be treated if he were sentenced to jail instead of prison. Penland's defense lawyer told Carp she was unaware of the mental illness diagnosis when the sentencing deal was proposed to Merten.

The probation officer also told Carp that Penland had good family support and seemed at a turning point in his life. A year in jail, rather than two years in prison, would afford him medication and ongoing support for his effort to change his criminal lifestyle, the officer said. …

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