JOHN DAY — Grant County Sheriff Glenn Palmer invoked his right against self-incrimination 51 times while being questioned under oath about his handling of government records.
Palmer wouldn’t answer questions about deleting emails dealing with public business and whether he had any emails related to the occupation earlier this year of the Malheur National Wildlife Refuge.
The sheriff used his Fifth Amendment right last week during a deposition in the lawsuit he faces from The Oregonian/OregonLive. The news organization sued Palmer, his office and his civil deputy in May to force disclosure of public records such as arrest reports, calendars, emails and cellphone invoices. The state public records law generally requires public officials to disclose such documents.
A key issue in the dispute is Palmer’s use of a personal email account to conduct his public business. The news organization sought work-related emails dating back to November 2015. In court filings months after receiving the request, Palmer said his practice is to print out important emails from his personal account, file them and then delete them from his system.
It was during a series of questions about that practice that Palmer invoked the Fifth Amendment.
The sheriff didn’t respond to a subsequent request for comment.
He has become a national figure over his sympathy for the occupiers of the wildlife refuge. He has said he traded text messages with Ammon Bundy, the Idaho businessman who led the occupation. He also met in John Day with two occupation leaders.
Starting in late January, John Day city officials and Grant County citizens filed 11 complaints with the state agency that certifies police, alleging the sheriff’s actions put the community at risk. The Oregon Department of Justice opened a separate criminal investigation of the sheriff over an allegation he tampered with government records in 2012. That investigation remains active.
Palmer was questioned for about six hours last Tuesday and Wednesday by Brad Daniels, a Portland attorney representing The Oregonian/OregonLive. The sheriff, who has been in office since 2000 and is running for re-election in November, answered questions about his knowledge of state law governing public records, his handling of requests for records, his cellphone use and his relation with several individuals.
Questions about his personal email account prompted the Fifth Amendment claims. He first invoked the right when asked whether he had reviewed the legal definition of “public record” before the lawsuit was filed.
Palmer also invoked the right after he was shown and asked about his email exchanges with Grant County District Attorney Jim Carpenter. Palmer earlier told The Oregonian/OregonLive that he had no email records related to the refuge occupation. One email exchange from Feb. 12 related in part to a Florida man invoking Palmer’s name to issue phony grand jury papers.
Palmer took the Fifth when asked about whether the emails were public records, if copies existed in his office, where he would file a printed version and why it wasn’t released to the news organization.
He invoked the right when questioned about other documents he had said he didn’t have but other government agencies subsequently provided to The Oregonian/OregonLive.
Sally DeFord, who as Palmer’s civil deputy handles administrative functions such as expenses and legal papers such as restraining orders, invoked her Fifth Amendment right three times during separate testimony.
She cited it when she was asked if she had destroyed any records and whether she still had emails involving one of Palmer’s special deputies — volunteers deputized by Palmer for public lands patrol, search and rescue and other functions.
Legal experts say the Fifth Amendment is intended to protect witnesses from giving evidence that could be used against them in a criminal case. They say the protection is intended to force the government to prove a crime without admissions from a suspect.
Margaret Paris, a University of Oregon law professor, said someone can stay silent if “what that person fears (is) that their statements might be used against them in a criminal case.”
Steven Salky, a Washington, D.C., criminal defense attorney who wrote a book on the Fifth Amendment published by the American Bar Association, said witnesses can use the right even if they believe they’re innocent of criminal conduct but concerned the answers might lead to criminal charges.
It’s unusual for public officials to invoke the right, Paris said.
“Most of our public officials and law enforcement officers, we don’t expect them to be engaging in something that would tend to give rise to a criminal proceeding,” she said.
Paris and Salky said the fact that a witness asserts the privilege can’t be used to suggest in a criminal proceeding that they’re guilty.
The circumstance is different in a civil case, they said.
“You can be hurt in a civil case if you take the Fifth Amendment,” Paris said, because a judge or jurors can infer the witness would have said something damaging if they had answered the questions.
Salky said a judge or jurors could read into the silence that “if you’re hiding information it’s not only because it’s incriminating but because you have done something wrong.”
Salky said Palmer appears to have legitimately invoked his right because he’s under criminal investigation.
The depositions were conducted without restrictions that Palmer asked a judge to impose. Through his attorney, Zac Hostetter of Enterprise, the sheriff sought to limit questions and the length of the depositions. He also wanted to prohibit videotaping and disclosure of the deposition contents to anyone but the attorneys.
Palmer said in a declaration that videotaping wasn’t reasonable. It would expose him to “embarrassment and annoyance,” he said.
Grant County Circuit Judge William Cramer rejected his request, noting in a Sept. 16 letter that The Oregonian/OregonLive could use the contents to report news because “that is a legitimate use of information.” He also noted that Palmer is an elected official who hadn’t established that he needed to be protected from potential embarrassment or annoyance.
