Invasive Discovery Request by Defense Counsel Denied in Columbia County

A Columbia County Circuit Court judge today [Aug. 15] told a criminal defense attorney, in no uncertain terms, that a civil child-custody case was no place to go looking for discovery to assist in a criminal case.

 “Civil cases are not to be used as a tool for discovery in criminal cases,” Judge Jenefer Stenzel Grant said at a hearing on the attorney’s request to be allowed to depose his client’s 12-year-child and her mother and to obtain certain documents from them in the child-custody case.

The attorney’s client is scheduled to begin trial on Aug. 21, before a different Columbia County judge, on charges that he repeatedly sexually assaulted that child in late 2010.

The attorney, who also represents the child’s father in the civil custody case, previously had told that Court that “The documents that are most time sensitive are those documents that will be helpful to respondent in preparing his defense for his criminal case.”

Prior to today’s hearing, Portland attorney and OCVLC Board Secretary/Treasurer Erin Olson, who represents the victim and her mother on victims’ rights issues, had filed a Claim of Violation of Crime Victims’ Rights in connection with the attorney’s requests, arguing that they violated their right, under the Oregon Constitution, to refuse a deposition or other discovery request by the criminal defendant or another person acting on the defendant’s behalf. The mother’s attorney in the child-custody case also had asked the Court for a protective order barring the same discovery requests. Grant agreed to sign the order, which mooted the rights violation claim.

 In doing so, Grant rejected out-of-hand the defense attorney’s argument that the child’s mother had waived her and her daughter’s right to refuse defense discovery requests when she filed the custody petition in May 2012.

 “I completely disagree,” she told the attorney. “I’m just not going to make the civil case a vehicle for discovery in the criminal case. End of story.”

 “Now,” she told him, “what you are left with is what you are entitled to under the criminal discovery rules. I think you are entitled to discovery from the State. I’m not aware that you are entitled to discovery from the victim.”     

 A hearing on one of the defense attorney’s subpoenas for information from the State is scheduled for next week before the criminal-trial judge. The Oregon Department of Justice is opposing that subpoena on the State’s behalf.