An Interview with Attorney Jason Short
Interview by Gila Hayes
The importance of getting an attorney working on your behalf quickly after use of force in self defense seems like a no-brainer, but a surprising number of people wait until their court date looms. Then they get scared. Usually when that kind of information comes over my desk, it is from a non-member who is hoping we will champion his or her cause. As often as not, the matter entailed physical force, not firearms, and the armed citizen thought, “It wasn’t a shooting so no big deal.” To the contrary, it is a big deal!
About a month ago, I was chatting with our affiliated attorney Jason Short in Portland, OR. He and an associate had recently represented a man who had displayed a firearm to prevent being assaulted. He was arrested for disturbing the peace and hired Short’s firm. Upon entering the courtroom with his attorney, the man was directed to stand easy for a moment or two while the lawyer went forward to confer with others. Moments later, the lawyer returned and told him, “Let’s go. It’s all taken care of.”
To a layperson, the result seems almost magical, while to the attorney and his staff, it resulted from early morning meetings, and rapid efforts behind the scenes to gather up all the facts, liaise with the prosecutor and implement a host of other preventive measures. As Short described how much good he can do before arraignment, I was reminded how important it is to engage legal counsel as early as possible after using force in self defense. I’d like to share our discussion about the powerful affect an attorney can have on a self-defense case before it ever gets in front of a judge.
eJournal: You’ve mentioned that you’ve been a part of the arraignment process from the position of prosecuting attorney as well as that of the attorney defending the person being accused. How has that come about?
Short: I grew up with guns and because we lived out in the county, I was fortunate to have a shooting range in the back yard of my house. My dad was a very avid gun collector and many of my weekends as a child were spent at gun shows when other kids were doing other stuff. I have been familiar with guns since I was a little kid.
I graduated from Sprague High School in WA and attended Utah State University where I majored in economics with a minor in political science. I graduated from Willamette Law School in in Salem, OR in 2000. In my third year at law school, I was clerking as a certified law clerk and upon graduation was hired by Bob Herman in the District Attorney’s office in Washington County, OR. I was there for eight years as a prosecutor. I did a lot of work on firearms cases because everyone learned pretty quickly that I was familiar with firearms and that I knew the difference between single action and double action, or centerfire and rim fire. I knew the lingo.
In 2008, I left the DA’s office to open my own law firm. We started the website http://oregongunrights.com and began getting the word out that I specialized in firearms cases and defended people who were charged with crimes involving firearms and helped people restore their rights to possess and purchase firearms. Sometimes those rights had been lost due to a felony conviction or sometimes due to a mental health diagnosis. My work is twofold. I defend a lot of people charged with crimes involving firearms and I help people get their gun rights restored.
eJournal: Ironically, failing to get good legal representation soon after an incident can result in losing one’s gun rights. People do fail to take small legal problems seriously and those can balloon into bigger legal issues, when your efforts prior to arraignment could have kept the client out of court altogether. We get calls from non-members asking for help mere days before trial! Does that mean the people actually go to their arraignments alone–without an attorney?
Short: Yes, it probably does. In my opinion, there’s no reason somebody should show up at an arraignment without an attorney unless they just can’t afford it. Then they have no choice but to apply for a court appointed lawyer at the arraignment.
Most of the time, our clients have resources or they are members of supportive organizations like the Network. If they’ve been arrested, they are able to post bail and are released from custody. That means there’s going to be at least a week or two before they have to show up for court. If you’ve posted bail and gotten out, there should be plenty of time to call an attorney. There should be plenty of time to have met with and retained that attorney, and to have that attorney prepared to appear with you before the court.
Even more importantly, if you hire that attorney well in advance of the arraignment, that attorney can meet with the prosecutor before a charging decision is made. If your attorney contacts the prosecutor shortly after your arrest, it is possible the prosecutor has not had an opportunity to take a look at the case yet. That is good.
It can take a few days for the police reports to get gathered, printed and sent to the DA’s office and they have to put it into file and put it on the DA’s desk. Then, most likely the prosecutor is going to be in trial or busy so they’re not going to look at that case file for a few days. Sometimes they won’t get the chance to look at that file until a day or two before the arraignment.
As the attorney, that gives me a chance to reach out to the deputy DA and say, “Hey, I represent Mr. Jones. Can we sit down and talk? I’d like to tell you why I think the guy should not be charged, and why I think it is a good self-defense case.”
eJournal: Now, I expect you put in quite a bit of work before reaching out to the deputy DA. Let’s say you have a client who acted in self defense. What do you need to do prior to presenting your arguments in hopes of convincing the deputy DA not to charge an innocent person?
Short: Without talking about any specifics, in general here’s what happens. Typically, someone will come into the office. They’ve been arrested, they probably have been booked at the jail, and they have what’s called a release agreement. Their court date is probably about two weeks out.
I have them gather character letters from individuals who have known them for a long time and can talk about their character for peacefulness, their character for trustworthiness—basically I want to paint a picture like they are a Boy Scout so those letters are going to talk about how they are trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful—all the ideals from the Boy Scout law.
I like to have them send me their curriculum vitae or résumé so I can gather information about their educational background and work history. I want to paint a picture for the prosecutor showing a productive member of society, a person who is married and has a family, not a gangster or a punk.
I also want to get a lot of details and facts about the case. It helps me prepare when I know the full story so I can explain why their self-defense claim works or why I might have to say it doesn’t work. Clients need to be very open and honest in telling me what happened. The worst thing they can do is lie to me. I need to know exactly what transpired, because if I’m told a different story than what is contained in the police reports or what the eyewitnesses saw that will look bad when I talk to the prosecutor. Those are just a few of the things that we would do in preparation for meeting with the prosecutor. I use these details and facts to give the prosecutor a full picture instead of the one-sided view that they might get from the police reports.
eJournal: Have you found prosecutors receptive to listening to your viewpoint if you approach them before they’ve had time to form an opinion about a case?
Short: It is hit and miss—some prosecutors are much better about it than others. Some are pretty open to talking and some are very difficult to get ahold of. Sometimes I will send emails if I can’t get a face-to-face meeting. At least then I know I’m getting them all of the information, and I think that does have an impact. Really, overall, it works pretty well.
eJournal: Citizens are rightly frightened of the power the prosecutor has in charging someone with a crime. If their attorney can short-circuit a one-sided decision, that would be very good indeed.
Short: Our law firm and the Oregon Criminal Defense Lawyers Association were instrumental in passing a bill the governor signed into law about three years ago saying that if the grand jury is going to be convened and if the prosecutor is going to present evidence before a grand jury, then an attorney has a right to request that their client be allowed to testify in front of that grand jury, too. Otherwise, the prosecutor is in complete control of the grand jury process.
The prosecutor decides what evidence will be presented, and I have no say in that. However, under this new law, if I say, “I would like to have my client testify before the grand jury,” then they have to honor that request. I have done that several times in self-defense cases, and I think our law firm has done that more times than anyone else in Oregon.
Now, I am not allowed to be present when my client testifies in front of the grand jury, but if it is a good self-defense case, I want them to hear about it. Let’s say in a road rage incident, a guy came out of his car toward my client with a tire iron and my client pulled a gun. Well, I don’t necessarily trust the alleged victim to tell the grand jury the truth. He might say that my client Mr. Jones got out of his car already pointing a gun at him. The prosecutor may not go into much detail, so then you have jurors thinking, “Wow, Mr. Jones really overreacted.”
You need to give the whole picture and that means Mr. Jones could testify, “This guy tried to run me off the road. Then when he got out of his car, he grabbed the tire iron, so when he was coming at me, I pulled my gun out.” Well, then you have the grand jury thinking “Oh, he never mentioned grabbing the tire iron.”
Now that they’ve seen the whole story, they’re going to return what is called a No True Bill, and they are not going to indict Mr. Jones for unlawful use of a weapon or for menacing. Because now they have the full picture, we’ve saved everyone a ton of money by not going further. We are done; the whole case is dismissed at that point.
eJournal: That was an educational example. I was focused on your efforts prior to arraignment when a DA has to decide if it’s appropriate to charge someone with a crime and hadn’t considered how you guide your client’s interaction with a grand jury. Now that you’ve brought it up, can you help us understand where a grand jury fits into the process of being charged with the crime?
Short: Sure. Basically, there are two ways someone is charged with felony, but it always starts with an arraignment. Everybody has an arraignment first, and that’s where the DA or the prosecutor is charging that person with the felony. Think as that first arraignment as temporary, because as a society, we don’t want to give the prosecutor so much power when it comes to felonies without some oversight, so we have the grand jury process or preliminary hearings before a judge.
In Oregon, we mostly use grand juries. We do some preliminary hearings, but in California, for example, almost every case is done by preliminary hearing. That means that evidence is presented to a judge in a preliminary hearing, witnesses are called and testify, and then that judge will decide whether to bind over that defendant based on the evidence.
The judge will hear evidence from witnesses, and maybe that will be, “Well, these three hooligans broke into my home. The police were called and they pulled them over as they were leaving the house with all the stolen goods in their car.” So, the homeowner would testify, the cops would testify, and then the judge would say, “I find that there is sufficient evidence that these three guys committed burglary,” and that would be a preliminary hearing.
In Oregon, almost all “person crimes” are handled through the grand jury process not through preliminary hearings. It is similar, but instead of just one judge, seven people on the grand jury would hear the testimony. It is a very similar process.
The prosecutor calls the witnesses to testify in front of the grand jury. After the evidence has been presented, the grand jury would then meet alone and deliberate. Generally, the prosecutor has recommended, “I believe based on the evidence that you’ve heard that these are the crimes with which the person should be charged.” The grand jury would come to an opinion of what crime they think the facts support, and if they return an indictment, the grand jury foreperson would sign it.
Then, at the next arraignment, that person will be arraigned on another charging instrument and that would be an indictment. So that first charging instrument was just a temporary one. We allow prosecutors to charge people with felonies but only for a short time because we want the checks and balances of a grand jury.
eJournal: That explanation makes me wish more states made regular use of grand juries. I think it is unfortunate that many states don’t convene grand juries very often. It takes away the chance that a person could tell their side of a self-defense incident to people just like them.
Short: In self-defense cases, it is good to put that human element in the picture. Because it is very rare that a suspect or defendant appears before a grand jury, they are not used to seeing the people that they are indicting. It is very powerful if you can put your client in the room with the grand jury because now they are staring down at the person they are about to indict. If the person is well-prepared, well-groomed, nicely dressed, is articulate, and can say, “I did not commit a crime. I was in fear for my life,” I believe the grand jury, just like a normal jury in a trial, could say, “No, we don’t think this person committed a crime.”
eJournal: If the indictment is done by preliminary hearing before a judge, does the defendant have the same opportunity to describe what happened?
Short: Most attorneys are going to advise their clients not to testify in a preliminary hearing. To do so is very rare.
eJournal: Does the client attend if he or she does not speak?
Short: Yes, the client would definitely be there.
eJournal: Oh, boy–that worries me! Doesn’t their silence raise a subliminal question in the judge’s mind, “Why doesn’t this person defend their actions?”
Short: Yes, from a strategy standpoint, if you have a really good and defensible case, an attorney might want to have the client testify at a preliminary hearing before a judge. The judge might be convinced that there is not enough evidence, but the problem is that the judge only has to find that it is more likely than not that there is sufficient evidence to bind over on the charges. The standard is more like probable cause. The prosecutor does not have to prove beyond a reasonable doubt at the preliminary hearing stage. It is a really low standard. I do not know that I would want to waste my defense at a preliminary hearing, but in Oregon, we just don’t have preliminary hearings on person crimes.
eJournal: In that, I think you are fortunate. Switching topics a bit, I’d like to ask about the more common problem of using mere physical force and failing to consider the legal consequences. Imagine a minor dustup, two guys posture, exchange blows, separate, and our guy thinks it’s over–and sometimes it is, but sometimes a police detective telephones or drops by to ask questions. Is that situation too minor for an attorney to get involved?
Short: No, I don’t think so.
eJournal: [laughing] Yeah, that question was kind of a set up, but seriously, to protect his legal rights, and more importantly his rights as a gun owner, what should our guy do?
Short: As you alluded, the problem is that you cannot know when a mountain will come from a molehill. What seemed like a molehill, very well could stay a molehill, but I have had too many cases where the police cited my client for menacing, but the DA disagreed and charged it as assault in the fourth degree or initially you think, “Oh, it’s a harassment charge,” and then, all of a sudden, it is assault four. That’s why I would not underestimate the possibility of something becoming more serious. With the exception of a speeding ticket or a traffic infraction, if you’re getting handcuffs put on you, then you absolutely need an attorney. There’s no question about it.
eJournal: From your professional viewpoint, is it the arrest that increases the seriousness so engaging an attorney is mandatory? Does the arrest lead you to jump in, get a private investigator working on it, talk to the DA about the client’s side of story, and so on?
Short: Exactly. I am rarely going to be able to do anything unless that person has been arrested. When that’s happened, we need to do everything that we possibly can to try to convince the prosecutor that they shouldn’t charge it.
eJournal: For ordinary, law abiding citizens, the problem seems to be not knowing when use of force is serious enough to merit hiring an attorney. The suspect believes that the police investigation will show that what he did was okay, but the next thing you know, he’s being arraigned on assault charges. I mean, no one wants to be the wimpy kid who whines to the authorities about every little scuffle, so people tell their story and trust police and prosecutors to handle it sensibly. Should we, instead, get an attorney involved if we’re questioned as part of an investigation?
Short: I think it depends on the seriousness of the criminal investigation. If someone is made aware that they are being investigated for a crime, I think it is important to hire a lawyer. Let’s say that you had an incident involving road rage. You displayed a firearm because you felt that your life is in danger, but you’re not arrested so you go on home. You get a phone call from a number with caller ID blocked, so you don’t recognize the number, and on voice mail you hear, “Hi, this is Detective Jones, I’d like to speak to Mary about an incident on I-5.” When that happens, you know darn well that they’re looking at doing a criminal investigation, so the person who gets that call should call an attorney right away.
eJournal: What if I simply picked up the phone and then didn’t know how to stop the interview for fear of automatically being viewed as guilty. I call you for help–now what?
Short: Oh, no! Please tell me you didn’t answer questions.
eJournal: Maybe I’m one of those people who trust that if they do the right thing, it will all turn out okay. Can you mitigate the mistake?
Short: Yes, I can. What is going to happen is the police will take your statements, put them in a report, and then send the report to the prosecutor. That is the point at which I can minimize the effects of your statements. I’ll need to ask, “What did you say to the police?” because I am not privy to those reports until after a charging decision. Before I can get those reports, I need to know as much as you can remember about what you said. I can use that information to say, “Look, this was the perspective this person was coming from when he said this, so what he meant was…”
If you’ve answered an investigator’s questions, all is not lost. Ultimately, it would be better if you said something like, “Officer Smith, I would love to talk to you. I really want to. I can’t wait to talk to you, but just to be safe I want to exercise my constitutional rights—and I am sure you can respect that—of having my attorney with me when I talk to you. I am not hiding anything, I just want to make sure that I have all of my Ts crossed and all of my ducks in a row. That’s why I’d like to have an attorney present with me when I tell you my side of the story.” The police will respect that. I have represented several police officers over the years, and I tell you, the vast majority of them invoke their right to remain silent right away. They know.
eJournal: That’s a good point and you’ve given us a lot of other good details today, too. Your explanations of the procedures will help our members if they have to decide if an incident they got embroiled in is serious enough to need an attorney’s services.
Short: The bottom line people need to understand is if you’ve been arrested or you think you might be arrested, you should call an attorney right away.
eJournal: Thank you for helping us understand that, as well as explaining the process from arrest to arraignment and how an attorney may be able to interrupt charges that we would otherwise have to fight at trial.
We are grateful for Jason Short’s long-time affiliation with the Network. Learn more about his work at https://www.oregongunrights.com/Attorneys/Jason-Short/.
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