(The following story by John Sowell appeared on The News-Review website on February 4, 2010.)
ROSEBURG, Ore. — Douglas County Circuit Judge Randy Garrison ruled Tuesday that Central Oregon & Pacific Railroad’s civil suit against the state of Oregon will be heard in Roseburg.
Garrison denied a motion from the state asking that the trial, scheduled to begin Feb. 23, be moved outside Douglas County. Lawyers from the Oregon Department of Justice argued unsuccessfully that pretrial publicity and daily rail crossing blockages in Roseburg would undermine its ability to seat an impartial jury.
“There’s plenty of people out there to give this case a fair shake,” Garrison said in denying the motion.
The Roseburg-based railroad sued the state after the Oregon Transportation Commission last February withdrew funding on a $7.7 million grant for construction of a new rail switching yard off Del Rio Road north of Roseburg.
That action followed a suspension of grant funding after CORP shut down the 111-mile Coos Bay rail line in September 2007.
The railroad has accused the state of withdrawing the funding in retaliation for the closure of the line.
The state had already provided $1.4 million to the railroad in reimbursements for preliminary work on the project. In its lawsuit, CORP asked for the remaining $6.3 million under its contract to allow construction of the switching yard to continue.
The state, meanwhile, filed a counterclaim asking the railroad to pay back the money handed out thus far.
The new switching yard would allow CORP to replace its old, cramped switching yard in downtown Roseburg. With more space alongside Interstate 5, the railroad could operate shorter trains and reduce the time motorists spend waiting for rail crossings throughout Roseburg to clear.
John Dunbar, an assistant state attorney general, told Garrison that The News-Review had written numerous stories on the situation and had published editorials criticizing the state for withdrawing the funding. In several of the news stories, city officials blasted the state for its action, saying the Oregon Transportation Commission was “playing politics.”
The daily train crossing blockages could also inflame jurors driving to the trial, which is scheduled to begin Feb. 23 and last eight days, Dunbar said. They could end up taking out their anger on the state, he said.
“We’re very concerned about getting a fair trial. That right is going to be compromised if this trial is held in Douglas County,” Dunbar told Garrison by phone from his office in Salem.
CORP attorney Laura Montgomery, who also spoke to Garrison by phone from her office in Eugene, criticized the state for waiting until a month before trial to ask for a change of venue. She told the judge that most of the issues raised by the state had happened months ago and that the state could have asked to have the trial moved and had those issues litigated before now.
The motion, Montgomery said, seemed to be more of a delay tactic.
In denying the change of venue motion, Garrison noted that former Circuit Judge Robert Millikan was able to seat a fair jury in the 1999 Jesse Fanus murder trial. Fanus was convicted of shooting to death Marine Corps flying ace Marion Carl at his home outside Glide.
The Oregon Supreme Court in 2003 upheld the aggravated murder convictions rendered in that case. Among other claims, the defense challenged Millikan’s decision to keep the trial in Roseburg. The Supreme Court noted that although 10 of the 12 jurors who heard the case had read newspaper stories on the case before trial or viewed television reports, few had followed the case closely.
Garrison also noted that lawyers for Austin M. Clark had originally asked for a change of venue in his murder trial. Clark is accused of bludgeoning Kevin Omann to death in September 2007.
After most of the 80 potential jurors in the case said on a written questionnaire that they knew little about the case, Clark’s attorneys withdrew the request. That case is also being heard in Garrison’s courtroom.
Garrison said he would do everything under his control to ensure both sides in the railroad case receive a fair trial.
“That’s the way this trial, CORP vs. state, is going to be held,” he said.