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Oregon’s Attorney General Accused of Botched, Abusive Prosecutions

As previously reported in PLN, the Oregon Department of Justice (ODOJ) recently turned its prosecutorial power against a hotshot small-town district attorney. [See: PLN, Oct. 2011, p.39].

By the time it was over the DA had resigned, but the ODOJ skulked away with a fat lip and an ugly black eye.

Dean Gushwa was appointed district attorney for Umatilla County in Eastern Oregon in 2006, and re-elected in 2008.

“He was a very engaged, very methodical, very skilled DA,” said Pendleton police chief Stuart Roberts. Apparently, however, Gushwa lived his personal life by a different set of rules.

In August 2010, a 47-year-old clerk in the district attorney’s office, identified in court documents as “DW,” accused Gushwa of physically, sexually and emotionally abusing her between December 2008 and April 2010.

DW initially reported that Gushwa – her boss and occasional boyfriend – had handcuffed her and brutally forced himself on her. However, she did not report the incident for eight months.

DW told police she was afraid of Gushwa and had only continued to see him “because I was lonely.” She also admitted to being infuriated to learn that he was also romantically involved with Jennifer Roe, another employee in the district attorney’s office.

Gushwa denied DW’s claim but took a leave of absence soon after the allegations became public.

On November 5, 2010, Oregon’s aggressive and ambitious new Attorney General, John Kroger, sent his top criminal prosecutor, Sean Riddell, to pay Gushwa a highly unusual visit. Riddell, who was not Gushwa’s assigned prosecutor, contacted him directly rather than going through his lawyer – an apparent violation of the ethical rules for Oregon attorneys.

Gushwa had previously offered to resign, but Riddell demanded not only his resignation but also that he plead guilty to at least one criminal charge. Gushwa, a pitbull of a prosecutor himself, didn’t appreciate Riddell’s hard-nosed tactics and refused. According to Gushwa and his defense lawyer, Riddell responded by vowing “to use all my 300 attorneys to hit you like a freight train.”

Five days later, on November 10, the ODOJ charged Gushwa with eight counts of official misconduct, all misdemeanor offenses. “The allegations were very serious,” said Kroger. “I would characterize it as an extreme form of sexual harassment as well as intoxication in the workplace.” Prosecutors claimed that Gushwa had “a well known drinking problem” and targeted women in his office “who were vulnerable.”

Gushwa told a reporter he was innocent of any wrongdoing. “My conduct as far as having relations with employees was stupid,” he said. “I’ve apologized for that.” He insisted, however, that all of his sexual relationships were consensual.

The ODOJ disagreed, yet did not charge Gushwa with any offenses related to forcible sex. “Those are very difficult cases to win when there’s a prior consensual relationship,” Kroger stated.

Gushwa’s lawyer, William Perkinson, was surprised that Kroger had filed charges against his client. There was no evidence that Gushwa had threatened his female co-workers to have sex or to remain silent after the fact. There was also no evidence that he gave preferential treatment to any of his paramours.

When Gushwa didn’t budge, the ODOJ turned up the heat by adding ten counts of contempt of court to the list of charges. The state accused Gushwa of violating a court order prohibiting contact with any employee of the DA’s office because he had called, texted and met with Roe – to whom he was now engaged.

On November 15, 2010, Riddell had Gushwa arrested and booked into the county jail because ODOJ lawyers had heard that he intended to return to the DA’s office, also in violation of the court order. “It was just a cheap little tactic, pure intimidation,” said Gushwa. Eight days later Gushwa pleaded not guilty and was allowed to return to work on a limited basis.

Just before trial, the ODOJ shocked Gushwa and Perkinson by offering to settle the case. If Gushwa agreed to resign, the ODOJ would drop the sexual harassment-related offenses and proceed only with one count of official misconduct for using his position as district attorney to obtain a $6.00 discount on a hotel bill even though he was not serving in an official capacity at the time. In the end, Gushwa agreed. “I felt like they’d already destroyed my effectiveness as a DA, anyway,” he said.

Gushwa was found guilty of the charge, received a three-year term of probation and resigned on May 11, 2011. Kroger denied that the ODOJ had dropped the sexual harassment misconduct charges because the case was weak. He insisted the decision was more about saving time and money, and sparing the victims a potentially traumatic trial.

Gushwa’s prosecution was part of Kroger’s pattern of launching high-profile corruption cases against public officials, complete with hardball tactics and numerous press releases, only to have the case fizzle, noted Umatilla County Commissioner Dennis Doherty.

“They came in guns a-blazing,” said Doherty, a former county prosecutor. “And then, jeez, the only thing they could get him on was getting a cut-rate motel room. Did they ever really have any evidence? The whole thing is pretty pitiful.”

DW filed a notice of intent to sue Gushwa for physical, sexual and emotional abuse, and to name the county and the state as defendants because they “have failed to protect [her] from this conduct and have condoned retaliation for the reporting of this conduct.”

In June 2011, however, the Oregon Bureau of Labor & Industries (BOLI) dismissed DW’s sexual harassment and discrimination complaints against Gushwa for lack of evidence. A state investigator determined that DW had welcomed the relationship with Gushwa until she learned that he was concurrently involved with another DA office employee. BOLI also dismissed her claims against the state and county for failing to protect her from Gushwa.

In the end, Oregon taxpayers were the biggest losers. The ODOJ spent $148,978 prosecuting Gushwa and $221,957 running the district attorney’s office while he was on leave. Taxpayers also paid Gushwa’s salary for the nine months he was on leave, for a total bill of about $437,000.

Beyond the Gushwa prosecution, Kroger’s leadership failings were never more apparent than when his office mishandled one of the county’s most notorious, high-profile murder cases so badly that a killer serving a life sentence walked free.

On April 6, 2001, Kathleen Blankenship shot her husband to death. Gushwa originally prosecuted the case and Blankenship was found guilty of murder in 2003. She was sentenced to life imprisonment but won a new trial in 2009.

Her attorney obtained two medical opinions that Blankenship was suffering from extreme emotional disturbance when she killed her husband. If the jury agreed, the charge could be reduced from murder to manslaughter.

Gushwa needed to counter Blankenship’s medical evidence, and convinced a New York psychologist to evaluate her. Before that could happen, however, Gushwa was sidelined by the misconduct prosecution and the ODOJ took over the case.

ODOJ lawyers failed to obtain a psychological evaluation of Blankenship to rebut her medical experts. In January 2010, Assistant Attorney General Rachel Bridges moved for a second continuance of the re-trial scheduled for the following month.

The court refused to grant a second delay. The ODOJ responded by allowing Blankenship to plead guilty to manslaughter, and she was released from prison on April 7, 2010.

Circuit Court Judge Garry Reynolds, who presided over the case, was furious. “I am completely dismayed by the way this case has gone forward,” he said from the bench. “I do not feel that the state of Oregon’s interests were protected.... That it was resolved in the manner that it was resolved is not a service to this county.”

Umatilla County Senior Circuit Court Judge Richard Courson also was peeved. “It is evident that the ‘plea deal’ was an excuse to try and conclude a ‘botched prosecution,’” he wrote in a letter to the East Oregonian.

Kroger admitted the ODOJ had made a “mistake” in failing to obtain its own psychological evaluation of Blankenship. “I’m unhappy with our handling of that case,” he remarked.

The victim’s sister and parents were stunned. “They dropped the ball,” said Mary Kligel. Although she had no sympathy for Gushwa, Kligel said she believed Blankenship would still be in prison for murder had Gushwa not been taken off the case due to the official misconduct prosecution pushed by Kroger. “Deep in our hearts, we know that it would have been different if Dean [Gushwa] would have handled it.”

Kroger’s hardball tactics and aggressiveness have drawn sharp criticism from other Oregon officials and members of the state’s legal community.

Attorney David Angeli said Kroger and Riddell fostered a “shoot first, ask questions later mentality,” and created skepticism and distrust of the ODOJ. “They won’t tell you what they’re investigating; they won’t tell you what their evidence is,” he said. “It’s in everybody’s best interest – the government, the suspects and the public – that there is a mutual feeling of trust and open communication. It’s not in anybody’s interest to spend hundreds of thousands of the public’s dollars on an investigation that could have been avoided had there been a level of trust and dialogue.”

In Riddell’s world, however, everyone is a liar and not to be trusted, apparently. So it should come as little surprise that Riddell found himself in the hot seat for dishonest and unethical conduct.

Riddell was busy in 2010. In addition to going after Gushwa, it appears that he and Kroger likely made the worst misstep of their careers when in August 2010 they launched a criminal investigation that involved Cylvia Hayes, the girlfriend of current Oregon Governor John Kitzhaber. Hayes was serving on an energy advisory panel, the Oregon Renewable Energy Working Group, and co-owned a company that had received a $60,000 contract from the state’s Energy Department.

During that investigation Riddell employed the same strong-arm tactics he used against Gushwa. Among the worst accusations, Riddell allegedly lied to witnesses in an attempt to coerce and intimidate them. Further, he publicly disclosed documents from the case in violation of a protective order requested by the ODOJ.

Four Energy Department employees were suspended during Riddell’s investigation. The ODOJ closed its criminal investigation in December 2010, opting not to file charges against anyone. The investigation cost Oregon taxpayers an estimated $600,000. When added to the Gushwa fiasco this totaled more than $1 million, with nothing but a lot of resentment to show for it.

After the criminal investigation ended, the ODOJ disclosed thousands of pages of documents from the case to attorneys for the four suspended Energy Department workers, without court authorization. The disclosure violated Oregon law because the documents had been obtained pursuant to a criminal subpoena. They also contained personal information such as phone numbers, addresses and email addresses.

Realizing its error, the ODOJ requested the return of the released documents. Most of the defense lawyers refused, however, because the documents included a gold mine of information, such as interview transcripts of Riddell browbeating suspects.

The ODOJ then engaged in an extended, bizarre attempt to obtain retroactive court permission to release the documents while simultaneously seeking a protective order barring public dissemination of those documents.

The Energy Department employees objected, arguing that depriving them of the ability to read and use the documents in their defense would violate their constitutional rights. But in April 2011, Marion County Circuit Court Judge Joseph Guimond sided with the ODOJ and issued a protective order that barred public disclosure of the documents.

On June 7, 2011, a report issued as part of an independent review found that none of the suspended employees had done anything to warrant termination or disciplinary action. The ODOJ responded by publicly releasing documents from the case a second time, which ironically included 45 pages of records that were covered by the April 2011 protective order the ODOJ had requested.

The next day the ODOJ wrote to Judge Guimond, claiming the documents had been carefully reviewed before being publicly released. “Regrettably, a number of ... emails were overlooked in this review process,” wrote Senior Assistant Attorney General Roger DeHoog. “We do not seek to minimize our error. As we have already apologized ... through counsel, we also apologize to the court.”

The ODOJ’s hollow mea culpa was not well received. “The attorney general seeks to selectively disclose documents that support its self-serving view that he wishes the public to adopt,” wrote the Energy Department employees’ attorney, Bill Gary, in a court filing. “While at the same time preventing ... [the employees] who were the subject of his ill-conceived and unlawful investigation from utilizing documents from the ... investigation to contradict the attorney general’s position.”

Gary and well-respected former Oregon Attorney General Dave Frohnmayer filed an ethics complaint against Riddell with the Oregon State Bar on May 13, 2011 due to his conduct in the Energy Department case.

“Mr. Riddell repeatedly and unequivocally lied to witnesses and coerced and intimidated them in order to deceive those witnesses into making statements that Mr. Riddell could then use to make unfounded charges against the targets of his investigation,” they wrote. “As a direct result, innocent individuals have had their lives turned upside down and their careers and reputations irreparably damaged. Mr. Riddell’s actions have wasted hundreds of thousands of tax dollars and have damaged the credibility and the integrity of the criminal justice system.”

Initially, Attorney General Kroger remained loyal to his pit-bull prosecutor. On June 1, 2011, the ODOJ announced that it had found Riddell had done nothing wrong. “We conducted a thorough internal review and have concluded that the allegations are baseless,” the agency stated. “We stand by the integrity of the investigation.”

The Oregonian newspaper submitted a public records request for investigative documents from the supposed internal review. The ODOJ responded that no such records existed. Rather, a Deputy Attorney General supposedly conducted the review and “reported orally” to Kroger, according to the ODOJ.

Seventeen days later Kroger released a statement announcing that Riddell was being demoted for what he termed a “clerical error.”

“I acknowledge ... that we have made mistakes in a small number of high profile cases,” Kroger admitted in his statement. “This week, I learned that in addition to these errors, Chief Counsel Riddell had deleted a large number of government emails under the mistaken belief that they had been backed up on computer tape. Although we were able to recover many of the deleted emails, an unknown number have been lost permanently.”

Riddell was to resign from his management position and go on leave until August 2011, according to Kroger. When he returned to work he would be assigned to another ODOJ department.

“It’s about time,” said Eugene attorney Sharon Rudnick. “I would say that it is a good decision to remove Mr. Riddell. This man has wielded the prosecutorial authority of the state. He’s misused his power. He’s hurt a lot of people.... It’s good that it’s going to stop. It’s too bad so many people’s lives had to be damaged before the Attorney General removed him.”

Kroger’s halfhearted decision to throw Riddell under the bus is likely too little, too late, though. Riddell’s demotion was accompanied by a hollow apology from Kroger that was unlikely to appease his critics.

“As Attorney General, the buck stops with me. I take full responsibility for errors made under my leadership,” Kroger claimed. “I will not always be a perfect Attorney General. I cannot promise to never make mistakes. But, what I can promise is when there are errors in practice or judgment, they will be accompanied by accountability.”

Unfortunately Kroger did not seem to understand that repeatedly apologizing for bad behavior while continuing the same pattern of conduct is not accountability. Then again, perhaps he finally came to realize that he had worn out his welcome. On October 18, 2011, Kroger announced that he would not run for a second term as Oregon’s Attorney Gen-eral, citing an undisclosed medical condition.
Many people in the state’s legal community will be glad to see him go, including those who have been the targets of his heavy-handed, misguided investigations.

Sources: The East Oregonian, Associated Press, The Oregonian, Statesman Journal, ODOJ Press Release (May 17, 2011)

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