Oregon "Magistrate Mental Illness Hold" Invalid; Judge, Prosecutor & Defense Attorney Face Ethics Complaints
An Oregon judge issued a permanent "magistrate mental illness hold," indefinitely committing a man, without authority to do so. Now a retired judge has filed ethics complaints against the judge, prosecutor and criminal defense attorney involved in the case.
On May 10, 1997, Donn Thomas Spinosa stabbed his ex-wife Kathleen T. Relay, 20 to 40 times because she wouldn't give him money for video poker, according to police. He was arrested and charged with her murder a few days later.
Spinosa was sent to the Oregon State Hospital (OSH) for treatment, however, after he was found unable to aid and assist in his defense. Under Oregon law Spinosa could be confined at OSH on an aid and assist hold for no more than three years.
When Spinosa was still unable to aid and assist in his defense in 2000, the criminal charges were dismissed and he was civilly committed. The civil commitment was renewed annually until 2010 when OSH officials allegedly notified Washington County District Attorney Bob Hermann that they were considering Spinosa's discharge.
In October 2010, Hermann refilled Aggravated Murder charges against Spinosa. Having again been found unable to aid and assist in his defense, Spinosa was returned to OSH. In 2011, Washington County Circuit Court Judge Thomas Kohl again found Spinosa unable to aid and assist.
Hermann and Spinosa's defense attorney, Robert Axford, filed a joint motion with Kohl seeking a permanent "magistrate mental illness hold" requiring Spinosa's indefinite OSH confinement and prohibiting his release without court approval.
Hermann filed a memorandum, noting that doctors have found Spinosa schizophrenic, unable to care for himself and a danger to himself and others. Hermann told Kohl that OSH planned to release Spinosa in 2010 despite those findings.
Nancy Griffith, OSH program director of adult treatment services contradicts Hermann's claim, noting that OSH discharges someone from civil commitment only when they have shown improvement and no longer meet the civil commitment criteria.
Hermann argued that the requested permanent magistrate hold was necessary because of the "woeful inadequacy of Oregon law" related to civil commitment. Hermann admits that he and other prosecutors dislike the civil commitment process because it removes dangerous offenders from the criminal justice system.
Unfortunately, however, Hermann offered no law supporting the legality of a permanent magistrate hold; because no such authority exists. Nevertheless, Kohl – whose daughter was murdered – signed the order for the magistrate hold and dismissed Spinosa's murder case. The order also cites no legal authority for the hold and simply refers to Hermann's memorandum.
When asked to cite the legal authority for the order, Hermann said only that he, Axford and Kohl believed the order was valid. Neither Kohl nor Axford would comment.
Following an October 21, 2011 newspaper article about Spinosa's case, Disability Rights Oregon launched an investigation, according to executive director Bob Joondeph.
The group wants to know why Kohl would skip the civil commitment process and impose an order that does not exist in Oregon law, said Joondeph.
"We're trying to ascertain when everything happened and why," he said. "In order to find out why a man would be left for eight months in a county jail who's acutely psychotic without any care."
Fortunately, Joondeph is not the only one who is troubled by the case. In December 2011, retired Circuit Court Judge Jim Hargreaves filed Oregon State Bar (OSB) complaints against Hermann and Axford and a judicial fitness commission complaint against Kohl.
In his OSB Complaint, Hargreaves notes that Oregon law does not allow for a magistrate hold. "Such an order is entirely without legal foundation in Oregon and stripped Mr. Spinosa of all his rights and protections," wrote Hargreaves in his complaint. Hermann, Axford and Kohl agreed to an "undeniably invalid order" to sidestep the law, said Hargreaves.
An unrepentant Hermann called Hargreaves' complaint a "cruel irony," given that he, Axford and Kohl all agreed to a solution they believed best protected the public and Spinosa. Who cares if it's a legal solution, right?!
In truth, however, Spinosa's case appears to fall "squarely within the civil commitment law," said Joondeph. In fact, Hargreaves and Joondeph both note that in November 2011. Spinosa was again civilly committed to continue his legal OSH confinement.
Hermann continues to maintain that OSH intended to release Spinosa and Kohl's order was necessary to give the court some "watchdog abilities" to ensure that "this guy isn't kicked down the street like they were preparing to do before."
Despite the clear lack of authority for Kohl's order, two longtime prosecutors quickly came to the defense of Kohl, Hermann and Axford in a guest opinion in The Oregonian.
"Certainly the use of the ethical complaint process is useful for our community in many instances where officials may use their government roles for personal or political interests," wrote Multnomah County District Attorney Michael D. Schrunk and Clackamas County District Attorney John S. Foote. "However, we have concerns about the use of an ethics complaint against two officers of the court and a judge when the allegations contain no assertion of personal, political or institutional gain whatsoever."
"This unfortunate incident, however, does emphasize an enormous hole in our criminal justice system," admit Shrunk and Foote. "If the legal assertions in the ethics complaint are accurate, it appears that there is no practical manner to effectively separate clearly violent offenders, even homicidal ones, from the community if they are so disturbed that they cannot aid and assist in the defense of their own criminal case."
Joondeph suggests that the "enormous hole" the prosecutors found is due to the fact that OSH's mission is help its patients recover and "it may not fulfill the goal of keeping a defendant in its custody indefinitely."
We will report on any significant developments in the case.
Source: The Oregonian
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