From the Portland Mercury, December 23, 2008

Officer Pandora’s Boxes – Attorneys Want Cop’s Secret List Documents

Attorneys for three people believed to be on Portland’s controversial secret list of downtown offenders are in a legal fight with the city to turn over the contents of 20 cardboard boxes containing information about the secret list program.

The contents of the boxes were allegedly compiled by Old Town cop Jeff Myers, who—at least earlier in the year—kept a copy of the secret list in the front pocket of his police uniform.

Defense Attorneys Spencer Hahn, Brian Schmonsees, and Lisa Pardini filed subpoenas for the information on behalf of their clients earlier this year. Deputy District Attorney David Hannon and Deputy City Attorney Ellen Osoinach are fighting the subpoenas.

Hahn, Schmonsees, and Pardini’s clients have all been charged with felonies instead of standard misdemeanors for drug possession as a result, it is presumed, of being on the list. The list is part of the city’s controversial Neighborhood Livability Crime Enforcement Program, which effectively replaced the city’s Drug-Free Zones after Mayor Tom Potter abolished them in September 2007.

The defense attorneys say their reasons for asking for the boxes are clear: “I’ve found similarly situated defendants in my office charged with similar crimes to my client [who’s allegedly on the secret list], who were afforded misdemeanor treatment for their drug possession charge,” says Schmonsees. “I do not understand the county’s rationale for treating my client differently.”

Nevertheless, attorneys Hannon and Osoinach are now arguing that while the boxes contain information about the program, they aren’t legally obliged to turn them over, because they have a duty to protect the confidentiality of the people on the secret list.

“If they’re concerned about privacy, they can redact confidential information and we can argue about that later,” says Hahn. “But the confidentiality argument seems disingenuous at best, since the state identifies those on the list each time it charges certain drug possession charges as felonies, instead of as misdemeanors.”

Hannon and Osoinach also argue that unless the defense attorneys can say what, precisely, is in the boxes that they want access to, then their subpoena is overly broad.

“But the idea that you can identify particular documents without having seen the contents of the boxes is ridiculous,” says Hahn. “It’s the kind of crap the tobacco companies were pulling in the litigation of the smoking lawsuits.”

Attorneys for both sides are now waiting for a hearing before Judge Dale Koch in early January, to decide whether or not the information in the boxes will ever be divulged to the public.

“The fact that they’re not disclosing all the records to the public and to the media is troubling, to say the least,” says Hahn.

Officer Myers is on vacation until January 11. Hannon and Osoinach declined to comment.