S53457 State v. Sandoval

SUPREME COURT CASES

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State: Oregon

Docket No: CC01CR0641;CAA119980;SCS53457

Case Date: 03/29/2007

FILED: March 29, 2007

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

LEONARD CONTRERAS SANDOVAL,

Petitioner on Review.

(CC 01CR0641; CA A119980; SC S53457)

On review from the Court of Appeals.*

Argued and submitted November 7, 2006.

Peter Gartlan, Chief Defender, Legal Services Division, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Peter O. Ozanne, Executive Director, Office of Public Defense Services.

Janet A. Klapstein, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before De Muniz, Chief Justice, and Carson, Gillette, Durham, Balmer, Kistler, and Walters, Justices.**

GILLETTE, J.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

*Appeal from Josephine County Circuit Court, Gerald C. Neufeld, Judge. 204 Or App 457, 130 P3d 808 (2006).

**Carson, J., retired December 31, 2006, and did not participate in the decision of this case. Linder, J., did not participate in the consideration or decision of this case.

GILLETTE, J.

Defendant appealed his conviction after a jury trial on a charge of intentional murder, ORS 163.115(1)(a), contending that the trial court improperly instructed the jury to the effect that a person is justified in using deadly force in self defense to defend against imminent use of deadly force by another only if there is no opportunity to escape and no other means of avoiding the combat. A panel of the Court of Appeals affirmed defendant's conviction without opinion. State v. Sandoval, 204 Or App 457, 130 P3d 808 (2006). We allowed defendant's petition for review and now conclude that the instruction was an incorrect statement of Oregon law and that the trial court's error in giving the instruction was not harmless. Accordingly, we reverse the decision of the Court of Appeals, reverse defendant's conviction for intentional murder, and remand the case to the circuit court for further proceedings.

Defendant shot and killed his ex-wife's domestic partner, Whitcraft. The two men had a history of combative and sometimes physically violent interactions. The shooting occurred on a road that both men frequently traveled. When the police arrived on the scene, defendant described the following sequence of events: Whitcraft had driven by on the road as defendant was about to turn onto it; after defendant turned onto the road behind Whitcraft, Whitcraft stopped his truck and backed it into defendant's truck; Whitcraft then turned and aimed a pistol at defendant; defendant grabbed a rifle that he was carrying in his own vehicle (both men kept guns in their vehicles), opened the door of his truck and fired a single shot at Whitcraft. Investigators determined that the shot had entered Whitcraft's skull behind his left ear, killing him instantly. Police later found Whitcraft's loaded and cocked pistol under Whitcraft's body.

At trial, the state rejected defendant's version of the events and offered evidence that defendant had essentially ambushed Whitcraft -- provoking him until he stopped his truck, training a rifle on him until he reached for his gun, and then shooting him in the head. At the close of trial, the court gave a series of jury instructions that were drawn from Uniform Criminal Jury Instructions:

"A person is justified in using physical force upon another person to defend himself from what he reasonably believes to be the use or imminent use of unlawful physical force. In defending, a person may only use that degree of force which he reasonably believes to be necessary.

"The burden of proof is on the state to prove beyond a reasonable doubt that the defendant did not act in self-defense.

"* * * * *

"There are certain limitations on the use of deadly physical force. The defendant is not justified in using deadly physical force against another person in self-defense unless he reasonably believed that the other person was using or about to use unlawful deadly physical force against him and/or committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person.

"Even in the situation where one of these threatening circumstances is present, the use of deadly physical force is justified only if it does not exceed the degree of force which defendant reasonably believes to be necessary in the circumstances."

Over defendant's objection, the court then gave an additional special instruction that the prosecution had requested:

"The danger justifying the use of deadly force must be absolute, imminent, and unavoidable, and a necessity of taking human life must be actual, present, urgent and absolutely or apparently absolutely necessary. There must be no reasonable opportunity to escape to avoid the affray and there must be no other means of avoiding or declining the combat." (1)

As we shall explain, that instruction apparently was based, not on the statutes discussed below, but on this court's 1982 opinion in State v. Charles, 293 Or 273, 647 P2d 897 (1982). The jury subsequently found defendant guilty of intentional murder with a firearm, apparently rejecting defendant's claim of self defense.

On appeal, defendant assigned error to the trial court's decision to give the special instruction. As noted, the Court of Appeals affirmed without opinion. Petitioner then sought review by this court, and we allowed his petition to consider whether the "duty to retreat" instruction that the trial court gave is a correct statement of Oregon law.

The answer to that question resides in the criminal statutes that define the concept of self-defense for purposes of Oregon law. Two merit discussion. The first, ORS 161.209, describes when the use of physical force for self-defense is "justified" and, thus, lawful:

"Except as provided in [another statute, not pertinent to this case] and [ORS] 161.219, a person is justified in using physical force upon another person for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose."

The cross-referenced statute, ORS 161.219, deals specifically with the use of deadly physical force. It provides:

"Notwithstanding the provisions of ORS 161.209, a person is not justified in using deadly physical force upon another person unless the person reasonably believes that the other person is:

"(1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or

"(2) Committing or attempting to commit a burglary in a dwelling; or

"(3) Using or about to use unlawful deadly physical force against a person."

Our initial task is to determine, from the text and context of the foregoing statutes, whether the legislature intended to limit the availability of the right to use deadly physical force for self-defense to those circumstances in which the person had no opportunity to retreat (or, as the special instruction had it, "no reasonable opportunity to escape to avoid the affray and * * * no other means of avoiding or declining the combat"). See PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993) (describing analytical method for construing statutes). If, after that initial examination, the legislature's intent with respect to the existence of a duty to retreat still is unclear, we may proceed to an examination of legislative history. Id. at 611-12.

On a purely textual level, ORS 161.219 contains no specific reference to "retreat", "escape," or "other means of avoiding" a deadly confrontation. Neither, in our view, does it contain any other wording that would suggest a duty of that kind. Instead, it sets out, in straightforward terms, a set of circumstances that justify a person's use of deadly force (a reasonable belief that another person is using or about to use deadly force against a person) and does not purport to interpose any additional requirements beyond those circumstances.

The state contends that a duty to retreat nonetheless is implied by what it describes as a "necessity" concept that it asserts is at the heart of both ORS 161.219 and the basic self-defense statute, ORS 161.209. However, the state does not explain its construction in terms of the specific wording of either ORS 161.209 or 161.219. It simply states, without further elaboration, that the central nature of a concept of necessity is "demonstrate[d]" in "the text of the interrelated statutes," i.e., ORS 161.219 and ORS 161.209.

The state may be relying on the fact that the latter statute contains the word "necessary." However, assuming that ORS 161.209 is relevant to our inquiry, it is clear that the reference to "necessary" in that statute pertains to the degree of force which a person threatened with unlawful force reasonably believes to be required for the purpose of self-defense or defense of another. That wording assumes a right to meet unlawful force with some level of force and does not suggest that a decision to retreat or otherwise forego the use of the otherwise permissible level of force might be required in some circumstances.

Neither are we persuaded that a duty to retreat may be derived from the requirement in ORS 161.209 that an attacker's use of unlawful physical force be present or "imminent." That requirement speaks solely to the timing of the threat; it is not concerned with the nature of the threatened person's response. (2) In short, nothing in the wording of ORS 161.219 itself, or in its broader counterpart, ORS 161.209, suggests that persons who reasonably believe that another person is about to use deadly physical force against them must calculate whether it is possible to retreat from that threat before they use deadly physical force in self defense.

The state argues that this court's decision in Charles is relevant at this stage of our analysis as part of the statute's context. The state asserts, specifically, that Charles interpreted ORS 161.219 as imposing a duty of retreat on those who would rely on a self-defense theory to justify their own use of deadly force against another. The state then asserts that Charles is precedent that binds us here.

The state's reliance on Charles is understandable. In that case, this court rejected a defendant's claim that the trial court had erred in refusing to instruct a jury that a person has no duty to retreat before using deadly force to defend against an imminent use of deadly force by another. The court there stated that such an instruction would be contrary to "the Oregon cases, [which] require a defendant * * * to avoid the threatened danger where it is possible to do so without sacrificing his own safety." 293 Or at 284. The problem with that pronouncement, however, is that the court based that decision entirely on its analysis of "the Oregon cases," while the right of self defense is set out in the two statutes previously discussed.

Indeed, the entire analytical flow of the Charles opinion is distinctly odd: The court did not examine the wording of either ORS 161.209 or 161.219 at all. Instead, the court set out the wording that the Oregon Criminal Law Commission had proposed to the legislature regarding the use of deadly force as part of the final draft of the proposed 1971 Criminal Code, which wording explicitly imposed a duty of retreat to avoid the necessity of using deadly force. Then, after noting that the 1971 legislature had rejected that wording, the court cited a view expressed in the Oregon Criminal Law Commission's Commentary to the 1971 Code to the effect that "the statute probably was not necessary" because of existing Oregon case law. 293 Or at 278 (discussing Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 23, at 23-25 (Jul 1970)). Then, without discussing at all the fact that the Oregon legislature had adopted statutes on the subject, the court concluded, inexplicably, that "Oregon case law * * * controls the subject." 293 Or at 277. The court then went on to discuss its prior cases (and to conclude that they did not support the defendant's claim that Oregon does not recognize a "duty of retreat.")

Although, from our present perspective, it seems surprising that this court would attempt to answer the question presented in Charles without resort to the controlling criminal statutes, that is precisely what the Charles court did. The court's analysis did not focus on or even consider the words of the statutes that we now recognize to be pivotal. Neither did the court conclude, as the state suggests, that the drafters of ORS 161.219 had decided to "continue" the "common-law rules" as explicated in the various self-defense cases that preceded the enactment of that statute. Charles, therefore, has nothing to contribute to our present effort, which is to discern what the legislature intended with respect to the "duty of retreat" question.

Without Charles, we are left with our initial impression of the statute: It sets out a specific set of circumstances that justify a person's use of deadly force (that the person reasonably believes that another person is using or about to use deadly force against him or her) and does not interpose any additional requirement (including a requirement that there be no means of escape). That impression is not altered by the requirement in ORS 161.209 that the use of deadly force be present or "imminent," or by the same statute's reference to "the degree of force which the person reasonably believes to be necessary." We conclude, in short, that the legislature's intent is clear on the face of ORS 161.219: The legislature did not intend to require a person to retreat before using deadly force to defend against the imminent use of deadly physical force by another.

It follows from the foregoing that the trial court erred in giving the instruction in question. The state contends, however, that, even if that is so, the error was harmless, because the facts and legal theories that the parties presented to the jury simply did not involve any question of retreat or whether use of deadly force was unavoidable. Rather, the state argues, the factual dispute before the jury focused solely on the question of whether Whitcraft had resorted to his weapon first. The state contends that, under those circumstances, there was little likelihood that the disputed instruction affected the outcome of the case.

We disagree with the state's assessment. A jury presented with the disputed instruction would assume that it had some relevance to the case before it. Even if the state never specifically made the argument, and even if its factual case was not geared to that issue, the jury still would be likely to hear the instruction as requiring it to find that defendant had had no opportunity to retreat from or otherwise "avoid the affray" before it could accept defendant's self-defense theory. With that erroneous impression in mind, the jury may have rejected defendant's self-defense claim based on a finding that defendant could have driven away when he saw Whitcraft backing toward him (or, even better, when he first saw Whitcraft drive by). (3) In short, there is every likelihood that the erroneous instruction affected the verdict. The error was not harmless.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

1. There is no transcript of defendant's objection, but the parties agree that defendant did object that the special instruction was not an accurate statement of the law.

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2. If a particular danger is not imminent, a person who wishes to escape criminal liability may well be required to avoid the danger, rather than to seek it out and cause that danger to become imminent. See ORS 161.215(2) (self defense not available if accused was initial aggressor). But the scope of the statutes that we consider here applies only to dangers that are "imminent."

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3. Indeed, the instruction hammered at the idea, using phrases borrowed from several of the cases discussed in Charles. Constructing instructions from an amalgam of cases, snatching verbal snippets from each, rarely produces truly accurate instructions, as this case demonstrates. We think, in fact, that it would be fair to say that even the Charles court would have found that state's special instruction a bit strong.

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Filed: June 30, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON In Re: Complaint as to the Conduct of J. MARK LAWRENCE, Accused. (OSB 08-115; SC S058778) En Banc On review of the decision of a trial panel of the Disciplinary Board. Argued and submitted May 2, 2011. Paula Lawrence, McMinnville, argued and cause and filed the briefs for accused. Stacy Hankin, Assistant Disciplinary Counsel, Tigard, argued the cause and filed the brief for the Oregon State Bar. PER CURIAM The complaint is dismissed. PER CURIAM The issue in this lawyer disciplinary proceeding is whether the accused, by releasing a partial transcript of a juvenile hearing to the press, violated Rule of Professional Conduct (RPC) 8.4(a)(4), which prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. A trial panel found the accused guilty of violating RPC 8.4(a)(4) and suspended him for 60 days. We review the decision of the trial panel de novo. ORS 9.536(2); BR 10.6. Because we conclude that

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the Bar failed to prove by clear and convincing evidence that the accused's conduct caused prejudice to the administration of justice, we dismiss the complaint. The facts are straightforward and largely undisputed. In 2007, the accused represented a juvenile male who, along with another male friend, allegedly had touched or swatted several female classmates on the buttocks and had danced in front of the females in a lascivious manner. The incident occurred at the students' middle school. After being informed of the youths' behavior, the vice principal and a police officer interviewed the victims. Based on those interviews, the accused's client and his friend were arrested by a McMinnville Police Officer on February 22, 2007. On February 23, the Yamhill County Juvenile Department filed a delinquency petition alleging that the accused's client had committed acts that, if done by an adult, would have constituted five counts of first-degree sexual abuse and five counts of third-degree sexual abuse. At an initial detention hearing that same day, the court ordered the youths to remain in custody. The events giving rise to this disciplinary action arose out of a second detention hearing held on February 27, 2007, before Judge John Collins. The accused called two of the victims to testify on behalf of his client. The female victims testified that the youths were their friends and that they did not find the youths to be threatening in any way. Regarding the alleged sexual abuse, the female victims testified that the touching or swatting was not sexual in nature but rather was mere horseplay. The victims also testified that they felt pressured by the vice principal and the police officer to make the touching sound hurtful and uncomfortable when it was not. By the second detention hearing, the case was receiving substantial media 2

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attention. Judge Collins allowed the press to attend the detention hearing, but prohibited the press from recording the proceedings. The parties dispute whether the judge prohibited only video recordings or also prohibited audio recordings.1 A number of newspaper and television stories reported the events and testimony at the hearing. After the hearing, the accused obtained a copy of the official audio recording of the hearing and had a partial transcript prepared that contained the victims' testimony. In March 2007, a reporter contacted the accused about the February 27 hearing. The reporter, who was not present at the hearing, expressed disbelief that the female victims had felt pressured by the vice principal and the police officer to make the youths' actions seem sexual. The accused offered to give the reporter a copy of the partial transcript when it was available. The accused believed that it would have been improper to give the reporter the official audio recording of the hearing but thought that the transcript could be released. The accused contacted Deborah Markham, the deputy district attorney handling the case, to see if she objected to releasing the transcript. Markham told the accused that she believed that the court would have to consent. The accused then released the transcript to the reporter without obtaining permission from Judge Collins. Deputy District Attorney Deborah Markham testified that Judge Collins prohibited video recording. Judge Collins testified that he might have prohibited the press from recording the detention hearing, but that he did not remember whether he did so or not. He did remember allowing video recording at a later hearing in the proceeding. The accused testified that Judge Collins prohibited video recording but that he could not remember if the judge prohibited audio recording.
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When Judge Collins learned that the transcript had been released -following news reports that cited the transcript -- he called a meeting with Markham and the accused and told them to release no other transcripts. The testimony from the accused, Markham, and Judge Collins differs regarding that meeting. The accused described the meeting as relaxed and said that Judge Collins had stated that the release of the transcript was permissible. Markham testified that Judge Collins was "very concerned" about the release of the transcript and that Judge Collins said that the accused's disclosure violated the law. Judge Collins testified that the accused did not get his consent to release the transcript, but that he was not sure if the accused needed to do so under the circumstances of the case, particularly given the presence of the press at the hearing. In Judge Collins's description, the meeting was not contentious; although he requested that the parties refrain from releasing any additional transcripts, he did not "feel like [he] needed to be firm" and so did not issue an order barring further releases. In April 2008, several months after the juvenile case was resolved, Tim Loewen, director of the Yamhill County Juvenile Department, reported the accused's action of releasing the transcript to the Bar. After investigating the matter, the Bar charged the accused with violating RPC 8.4(a)(4)2 by releasing to the press "information
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RPC 8.4(a) provides, in relevant part: "It is professional misconduct for a lawyer to: "* * * * * "(4) engage in conduct that is prejudicial to the administration of

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appearing in the record" of a juvenile case without court consent, in violation of ORS 419A.255(1) and (3).3 The Bar alleged that the accused had "usurped" Judge Collins's authority to control the proceeding by not seeking the court's consent before releasing the transcript, and thereby had caused prejudice to the administration of justice. In the proceeding before the trial panel, the accused argued that his release of the transcript did not violate ORS 419A.255 for each of three independent reasons: (1) the transcript that he had prepared was not a part of the record of the case and so was not subject to ORS 419A.255; (2) Judge Collins had consented to the release of the information contained in the transcript when he allowed the press to attend and report on

justice[.]"
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ORS 419A.255 provides, in relevant part:

"(1) The clerk of the court shall keep a record of each case, including therein the summons and other process, the petition and all other papers in the nature of pleadings, motions, orders of the court and other papers filed with the court, but excluding reports and other material relating to the child, ward, youth or youth offender's history and prognosis. The record of the case shall be withheld from public inspection but is open to inspection by the child, ward, youth, youth offender, parent, guardian, court appointed special advocate, surrogate or a person allowed to intervene in a proceeding involving the child, ward, youth or youth offender, and their attorneys. The attorneys are entitled to copies of the record of the case. "* * * * * "(3) Except as otherwise provided in subsection (7) of this section, no information appearing in the record of the case or in reports or other material relating to the child, ward, youth or youth offender's history or prognosis may be disclosed to any person not described in subsection (2) of this section without the consent of the court * * * ."

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the hearing; and (3) the information in the transcript could be released under ORS 419A.255(5)(b) and (d), which list certain exceptions to the confidentiality of juvenile records. Even assuming that he did violate ORS 419A.255, the accused asserted, he did not violate RPC 8.4(a)(4), because his conduct was not prejudicial to the administration of justice. That was so, according to the accused, because the defendant and the victims supported releasing the transcript and because the information contained in the transcript had already been made public as a result of the press attending and reporting on the hearing. Thus, in the accused's view, no harm -- actual or potential -- resulted from his conduct. The trial panel found by clear and convincing evidence that the accused had violated RPC 8.4(a)(4) and suspended the accused from the practice of law for 60 days. The trial panel first determined that ORS 419A.255(3) prohibited the accused from releasing the partial transcript to the press without the consent of the trial court and that the accused had violated the statute in doing so. With little discussion, the trial panel then found that the evidence that the accused had violated the statute also was sufficient to show prejudice to the administration of justice and thus that the accused had violated RPC 8.4(a)(4). The accused sought review in this court. To prove a violation of RPC 8.4(a)(4), the Bar must prove (1) that the accused lawyer's action or inaction was improper; (2) that the accused lawyer's conduct occurred during the course of a judicial proceeding; and (3) that the accused lawyer's conduct had or could have had a prejudicial effect upon the administration of justice. See In re Kluge, 335 Or 326, 345, 66 P3d 492 (2003) (citing In re Haws, 310 Or 741, 746-48, 6

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801 P2d 818 (1990)) (so stating for identically worded former DR 1-102(A)(4)). Because we find the issue to be dispositive, we begin by examining the third element -- whether the accused's conduct had or could have had a prejudicial effect on the administration of justice -- and assume, without deciding, that the accused's conduct violated ORS 419A.255(3) and otherwise satisfied the test set out in Kluge and Haws. Prejudice to the administration of justice "may arise from several acts that cause some harm or a single act that causes substantial harm to the administration of justice." Kluge, 335 Or at 345. This court has identified two components to the "administration" of justice: "1) The procedural functioning of the proceeding; and 2) the substantive interest of a party in the proceeding." Haws, 310 Or at 747. "A lawyer's conduct could have a prejudicial effect on either component or both." Id. The Bar argues that the accused's conduct, a single act, resulted in prejudice to the administration of justice because it had the potential to cause substantial harm to the procedural functioning of the court. The Bar asserts, "Substantial potential harm to the administration of justice occurs whenever a lawyer interferes in or usurps the court's ability to do its job in a proceeding pending before it." The Bar states that the accused "usurped" the court's authority by not seeking Judge Collins's consent prior to releasing the transcript. The Bar cites three disciplinary cases to support its position that the accused's conduct resulted in substantial potential harm to the administration of justice. First, in In re Eadie, 333 Or 42, 36 P3d 468 (2001), this court found a violation of former DR 1-102(A)(4) where the accused lawyer submitted a proposed order containing a 7

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misrepresentation that was intended to influence the judge in changing the trial date. Id. at 58. That conduct substantially harmed the procedural functioning of the court because it resulted in the judge acquiescing to a trial date preferred by the accused and made it necessary for the judge to resolve a dispute resulting from the accused's misrepresentation and to redraft an order. Id. Second, in In re Morris, 326 Or 493, 953 P2d 387 (1998), this court concluded that the accused lawyer had engaged in a single act of conduct that had the potential to cause substantial harm, either to the procedural functioning of the court or to the substantive interests of the parties, when she knowingly filed a notarized document that she had altered. Id. at 502-03. Third, in In re Thompson, 325 Or 467, 940 P2d 512 (1997), this court found a violation of former DR 1-102(A)(4) where the accused lawyer physically confronted a judge after receiving an adverse decision. That conduct caused substantial harm to the administration of justice because the accused's ex parte communication with the judge "unfairly attack[ed] the independence, integrity, and respect due a member of the judiciary." Id. at 475. The conduct also had the potential to cause substantial harm, because it could have influenced the judge to change her decision or to recuse herself from the case. Id. In each of the preceding cases, the accused lawyer engaged in conduct that had the potential to disrupt or to improperly influence the court's decision-making process, Thompson, 325 Or at 475; that created unnecessary work for the court, Eadie, 333 Or at 58; or that had the potential to mislead the court, Morris, 326 Or at 503. Moreover, in Eadie and Morris, the accused lawyers made knowing misrepresentations to the court. Similarly, in Kluge, the accused lawyer's conduct in knowingly filing an 8

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untimely motion to disqualify the trial judge and then failing to serve the motion on opposing counsel caused prejudice to "the procedural functioning of the judicial system by imposing a substantial burden upon both opposing counsel and [the trial judge] to undo the accused's actions." 335 Or at 346. In this case, the Bar has made no showing, as required by Kluge and Haws, that the accused's conduct harmed the procedural functioning of the judicial system, either by disrupting or improperly influencing the court's decision-making process or by creating unnecessary work or imposing a substantial burden on the court or the opposing party. Nor has the Bar shown that his conduct had the potential to result in any of the above. Certainly, Judge Collins did not testify that the accused's actions interfered with Judge Collins's conduct of the juvenile proceeding. Although the Bar correctly asserts that ORS 419A.255 gives the trial court control over the release of protected information in a juvenile record -- and, as noted, we assume without deciding that the accused acted improperly in not seeking the trial court's consent -- the Bar's theory fails to take into account the fact that the information contained in the partial transcript that the accused released was presented in open court and had already been reported by the press.4 It is difficult to see how the accused's release of the same information, in the context of this case, had the potential to cause any harm to the proceeding, much less substantial harm.

Article I, section 10, of the Oregon Constitution grants members of the public, including the press, the right to attend juvenile hearings. State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 284-85, 613 P2d 23 (1980).

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See Kluge, 335 Or at 345 (prejudice to the administration of justice may arise from "several acts that cause some harm or a single act that causes substantial harm"). Indeed, the Bar makes no effort to show that the accused's conduct could have resulted in new information being made public or that the release of the partial transcript itself had any potential impact on the proceeding. In fact, after the press attended the hearing and the accused released the transcript, Judge Collins allowed members of the press to listen to the official audio recording of the hearing. Nevertheless, the Bar asserts that Judge Collins was sufficiently "concerned" about the release of the information to call the accused and Markham to his chambers to discuss the incident. The fact that Judge Collins was "concerned" and met with the accused and Markham does not, by itself, demonstrate the potential for substantial harm to the procedural functioning of the court. Judge Collins himself stated that, although "in a perfect world," he probably would not have wanted the transcript released, in the context of this case and the open court provision of Article I, section 10, of the Oregon Constitution, the release of the partial transcript was likely permissible without his consent because "if [the press is] * * * going to know the information and report the information, at least get it right." Judge Collins's testimony, then, does not demonstrate that the accused's conduct impacted the procedural functioning of the court, even if the accused's conduct was cause for "concern." Nor does the Bar offer any evidence to prove that the release of the partial transcript harmed the substantive interests of the accused's client, the victims, or the state. The accused released the transcript, with the support of his client, in response to an 10

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inquiry from the media and in order to respond to inaccuracies appearing in some media reports. The accused maintained the confidentiality of the victims' names in the transcript, referring to them by their initials, consistent with an earlier order by Judge Collins. In this proceeding, the accused also submitted letters from the two victims who testified (and their parents) that stated their support for the release of the partial transcript. Finally, there was no testimony from the Yamhill County Juvenile Department that the release of the partial transcript had any effect on its substantive interests or its ability to prosecute the case. The Bar appears, instead, to take the position that virtually any violation of a statute, rule, or court order that occurs during the course of a court proceeding and relates to the conduct or any procedural aspect of that proceeding necessarily is prejudicial to the administration of justice. The Bar asserts, in effect, that "substantial potential" harm is implicit in the accused's conduct. Our cases, however, require proof by clear and convincing evidence that an accused's conduct in a specific judicial proceeding caused actual or potential harm to the administration of justice and, when only one wrongful act is charged, that actual or potential harm must be "substantial." Kluge, 335 Or at 345; Haws, 310 Or at 748. Here, the Bar's evidence did not prove that substantial harm resulted or could have resulted from the accused's conduct. We conclude that the Bar has not proved by clear and convincing evidence that the accused violated RPC 8.4(a)(4). The accused's conduct did not result in such prejudice, because there is no evidence that the release of the partial transcript, which contained solely information already presented in open court and reported by the press, 11

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harmed the procedural functioning of the judicial system. Nor is there any evidence that the substantive rights of the accused's client, the other juvenile defendant, the victims, or the state were harmed. "Prejudice to the administration of justice" requires such a showing. Haws, 310 Or at 747-48. The complaint is dismissed.

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