# In Re Complaint as to the Conduct of Lasswell > Oregon Supreme Court · December 6, 1983 · 296 Or. 121 URL: https://www.frixlaw.com/law-library/cases/9588061 ## Case - **Full name:** In Re Complaint as to the Conduct of WILLIAM L. LASSWELL, Accused - **Court:** Oregon Supreme Court - **Decided:** December 6, 1983 - **Citations:** 296 Or. 121; 673 P.2d 855; 1983 Ore. LEXIS 1769 - **Precedential status:** Published - **Opinion:** Dissent by Campbell - **Judges:** Campbell, Roberts - **Cited by:** 36 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9588061 ## Opinion text CAMPBELL, J., dissenting. Lasswell, the District Attorney of Douglas County, is charged by the Oregon State Bar with violating DR 7-107(B)(5) and (6): “(B) A lawyer * * * associated with the prosecution * * * of a criminal matter shall not, from the time of * * * indictment * * * until the commencement of the trial * * * make * * * an extrajudicial statement for public communication that relates to: <<* * * * * “(5) The identity, testimony or credibility of a prospective witness; “(6) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case.” Lasswell’s defense is based in part upon DR 7-107(H): *131 “(H) The foregoing provisions of DR 7-107 do not preclude a lawyer from replying to charges of misconduct publicly made against him * * The majority opinion considered Lasswell’s freedom of speech rights in determining if there had been a violation of DR 7-107(B)(5) and (6). Because the majority found there was no violation, it did not reach Lasswell’s defense under DR 7-107(H). 1 The test adopted by the majority to determine if there has been a violation of DR 7-107(5) and (6) is: «* * * pm js incompatible with [the prosecutor’s] professional performance in a concrete case to make extrajudicial statements on the matters covered by the rule either with the intent to affect the factfinding process in the case, or when a lawyer knows or is bound to know that the statements pose a serious and imminent threat to the process and acts with indifference to that effect.” 296 Or at 126. I accept the test adopted by the majority except I would delete the last phrase: “and acts with indifference to that effect.” 2 I would prefer a simple test that the prosecutor “knew or was bound to know.” Using an objective test — that Lasswell was “bound to know” — I would find that he violated DR 7-107(B) (5) and (6). *132 I agree with the findings of the Disciplinary Review Board that the article in the News Review on March 15,1981, accurately reported Lasswell’s statements. This conclusion is based on two things: (1) the reporter’s notes introduced at the hearing before the Trial Board verify the newspaper article, and (2) on April 1, 1981, Lasswell, in answer to an inquiry from the Oregon State Bar, did not complain about the accuracy of the article. In the April 1st letter, Lasswell enclosed a letter from the newspaper reporter explaining the interview. The reporter in part said: “I asked Mr. Lasswell to be numerically specific (on a scale of 1 to 10) on how successful he judged the operation. He replied that he expected a 90-100 percent conviction rate.” The News Review article of March 15, 1981, made the following references to Lasswell: “All of the persons arrested, aged 15 to 46, were sellers of narcotics, Douglas County District Attorney Bill Lasswell said. “ ‘These people sold because they were making some money’, he said. He expects a 90 to 100 percent conviction rate. * * * * “But Lasswell disputes that version of the narcotics officer’s activities. “ ‘He was not constantly pestering people’, he said. ‘That might be their interpretation of it.’ “[The narcotics officer], chosen from among several candidates for the job, has conducted undercover operations in other cities, and his method of operation is ‘very clean and very successful,’ the district attorney said. If it wasn’t, the city and county police wouldn’t have hired him. “ ‘We don’t want him out there causing all kinds of legal problems,’ Lasswell said. <<* * * * * “Some professional drug dealers probably were nabbed in the law enforcement net. Lasswell said, ‘A lot of them offered [the narcotics agent] more than he bought.’ ” Although the Oregon State Bar’s complaint alleged four separate specifications, it is only necessary to discuss two of them for the purposes of this dissent. Those two are: (1) that the narcotics officer was “very clean and very successful,” *133 and (2) that Lasswell expected a conviction rate of 90 to 100 percent. These cases involved approximately 50 defendants. The majority of the defendants had been arrested on February 20th. The newspaper article appeared on March 15th — about three weeks later. It is very probable that some of the cases would be set for trial within the following 30 days. Under ORS 136.290, the defendant must be tried within 60 days or released on his own recognizance. In a county the size of Douglas, many of the people on the jury panel would be readers of the county’s only daily newspaper. Whether Lasswell recognizes it or not, he was vouching for the credibility of the narcotics agent by describing him as “very clean and very successful.” Granted, Lasswell did not mention him by name or in connection with any particular case. If the agent made the buys and that is the purpose of the entire undercover operation, how does the district attorney expect to get the 90 to 100 percent conviction rate unless the agent testifies? Lasswell was in fact commenting on the chief witness’ credibility in each case. This part of the case is further complicated by the fact that the newspaper contained a three inch by five inch photo of Lasswell with the caption: “Lasswell... ‘clean, successful operation.’ ” By any objective standard, Lasswell’s comment that he expected a 90 to 100 percent conviction rate is an “opinion as to the guilt or innocence of the accused.” DR 7-107(B)(6). Lasswell himself admitted before the Trial Board that the public could perceive the statement as an evaluation of the quality of the cases. Statements of this nature must have an impact upon the prospective jurors. The newspaper article of March 15th was a perfect example of what DR 7-107(B) was designed to prevent — a trial by the press. Apparently the newspaper reporter was dedicated to giving the state and the defendants equal space. A journalism teacher would give the reporter an “A” for being even handed. The article contains extensive statements and quotes from Lasswell, the Roseburg chief of police, and a Roseburg police detective. To counterbalance the state’s position, the article contains statements and quotes from four defendants *134 and one disgruntled former county criminal justice employee. The full names of two of the defendants are contained in the article. The article does not express any dissatisfaction with the district attorney. Lasswell’s answer in effect invoked DR 7-107(H) and by way of an affirmative defense alleged: “That Lasswell, in any such statements or remarks relied upon by the Bar herein, was replying to public charges made by those under indictment or others in sympathy or complicity with them or their conduct, to the effect that Lasswell had misconducted himself as District Attorney of Douglas County by, among other charges: misspending the public funds appropriated as ‘drug buy money’ for use in the drug commerce suppression effort which culminated in the arrests on February 20,1981; and by using an undercover investigator whose methods, success, and race, were offensive to those making the public charges.” The critical comments by the defendants and those in sympathy with the defendants were not directed at the distict attorney individually. He appears to have been included in charges against the “establishment” in general. Lasswell introduced six letters to the editor of the News Review. None of them mentioned Lasswell or the district attorney’s office. Only two of the letters are directed to the “big drug bust.” The other four letters are discussions of the pros and cons of the use of marijuana. In a sense Lasswell was baited into making the statements in the newspaper interview. The following testimony was given before the Trial Board: “[THE CHAIRMAN]: Would it be fair to say that the Public Defender’s office was feeding you information on a confidential or off the record basis which you would then relate to Mr. Lasswell and see what his response was? “[THE NEWSPAPER REPORTER]: I would have to say yes that that probably did happen.” The charges of misconduct by the public against Lasswell, on which he could defend himself under DR 7-107(H), seem to boil down to: (1) The use of “$20,000 of the taxpayers’ money to chase pot smokers instead of murderers”, and (2) “You hired an unsavory undercover agent who entrapped the defendants.” *135 Lasswell testified: “Q. What can you tell the Trial Board about the public outcry and controversy that was the subject of either press releases, newspaper articles, television or any other thing that you can identify as being this hue and cry against the propriety of the investigation at the time you met [the newspaper reporter]? “A. Well, there had been a lot of comment brought to my attention raising questions about the wisdom of spending $20,000 on this type of operation. There was criticism of the process, screening process that we used in selecting the undercover agents. There was criticism about the procedures or tactics of the undercover agent. There had been some letters to the editor saying it was a * * * pimp and he was trying to lure women into prostitution, things like that.” Tr. 76. Black’s Law Dictionary (5th Edition 1979) defines “misconduct” as follows: “A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagment, offense, but not negligence or carelessness. Term ‘misconduct’ when applied to act of attorney, implies dishonest act or attempt to persuade court or jury by use of deceptive or reprehensible methods. People v. Sigal, 249 C.A.2d 299, 57 Cal. Rptr. 541, 549 .” The criticism of Lasswell for hiring the undercover agent was not an allegation of “misconduct.” No one has said that Lasswell was bribed or broke the law in the screening and hiring process. At worst the criticism alleges negligence. As to the entrapment, it has not been contended that Lasswell was responsible for the actions and conduct of the undercover agent. It appears from the record that the agent was hired and paid as a deputy of the police department. Lasswell told the reporter that he did not see the agent until after the bust. Apparently, Lasswell interviewed previous employers of the agent and took part in the selection process. There being no allegation of “misconduct” in connection with the employment and activities of the undercover agent, Lasswell had no right to invoke DR 7-107(H) and claim that his statement of “very clean and very successful” was justified as a reply. *136 I have difficulty seeing how “questions about the wisdom of spending $20,000” on an undercover drug operation is an allegation of “misconduct.” It is a judgment call all the way. According to Lasswell’s testimony, the idea originated with the county commissioners who authorized the money. No one has said that Lasswell stole the money or used the money from the wrong fund. The only criticism on this matter appearing in print is in one of the letters to the editor of the News Review: “As a Douglas County resident and taxpayer I question the authority of county officials on spending our hard earned tax dollars on this matter of a ‘big drug bust.’ All you succeeded in doing was arresting a few occasional pot smokers — they’re not big time dealers. “Couldn’t you have concentrated your efforts on more worthy causes? The child molesters, thieves, killers, rapists — those criminals belong behind bars — with such ridiculously high bails that they couldn’t get out of jail * * *.” Although the writer questions “the authority of county officials”, she goes on to indicate that she is really questioning the judgment of officials. In any event, I fail to see how a statement by Lasswell that he expected to obtain a 90 to 100% conviction rate is relevant to the choice of spending $20,000 in county funds on an undercover drug operation or on apprehending child molesters, killers, and rapists. I agree with the Disciplinary Review Board who in a 4-2 opinion found that Lasswell had violated DR 7-107(B)(5) and (6) and recommended a public reprimand. I join in the separate dissenting opinion of Roberts, J. Roberts, J., concurs with this dissenting opinion. The majority opinion of the Disciplinary Review Board seems to indicate that it viewed DR 7-107(B) as concerning the defendants’ right to a fair trial and DR 7-107(H) as concerning the prosecutor’s right of free speech and that the two subdivisions should be considered at the same time to determine if a disciplinary violation has occurred. This view would lead to a balancing test which was hinted at by the Disciplinary Review Board. It said in its majority opinion: “The size of this drug bust and the circumstances precipitating it made it very much a public issue. Unfortunately, the chief defender of the program’s wisdom was the Accused. In a sense, holding him up to as a high a standard as we do here, is difficult because ‘politics’ comes with the territory, and it may well be part of the duties of office to defend a particular program. This puts the Accused and those who follow after him into a very tough tightrope. By this opinion we are saying that undercover programs and choices of prosecution may be vigorously defended but not in a manner to comment upon the credibility of witnesses where there is a reasonable likelihood that such comment will affect a defendant’s right to a constitutionally protected trial.” I understand the majority to use the term “indifference” to mean “reckless indifference.” If “indifference” is deleted from the objective portion of the test, then the prosecutor under the phrase “bound to know” is charged with a duty of reasonable care. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9588061. Public record. Not legal advice.