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No Discipline for Oregon Prosecutor and Defense Counsel for Illegal Confinement of Mentally Ill Defendant

Although the Oregon State Bar initially decided to pursue disciplinary charges against the district attorney for Washington County and a criminal defense attorney who represented a mentally ill defendant, for causing the defendant’s illegal confinement, the charges were later dropped.

Donn Thomas Spinosa stabbed his wife to death on May 10, 1997, reportedly because she wouldn’t give him money to play video poker. He was found unable to aid and assist in his defense and sent to the Oregon State Hospital (OSH) for mental health treatment.

Under Oregon law, Spinosa could be held at OSH for no more than three years. When he was still not competent to stand trial in 2000, the criminal charges against him were dismissed and he was civilly committed.

The civil commitment order was renewed annually until 2010, when Washington County District Attorney Bob Hermann claimed that OSH officials told him they were considering discharging Spinosa. An OSH official denied his claim.

In October 2010, Hermann refiled aggravated murder charges against Spinosa, who was again found unable to aid and assist in his defense and returned to OSH.

Hermann and Spinosa’s defense counsel, Robert B. Axford, then filed a joint motion asking Washington County Circuit Court Judge Thomas Kohl to issue a permanent “magistrate mental illness hold” requiring Spinosa’s indefinite confinement at OSH and prohibiting his release without approval by the court. This was unusual because Oregon law does not recognize, or allow for, a “magistrate mental illness hold.”

Nevertheless, Hermann argued that the hold was necessary due to the “woeful inadequacy of Oregon law” with respect to dangerous mentally ill defendants. He admitted that he and other prosecutors dislike the civil commitment process because it removes mentally ill offenders like Spinosa from the criminal justice system.

Neither Hermann nor Axford offered authority for the legality of a magistrate mental illness hold, because no such authority exists. Regardless, Judge Kohl signed the order and dismissed Spinosa’s murder charges. The order cited no legal authority for the hold and simply referred to Hermann’s memorandum.

In December 2011, retired Circuit Court Judge Jim Hargreaves filed complaints with the Oregon State Bar (OSB) against Hermann and Axford, as well as a judicial complaint against Judge Kohl.

Hargreaves noted in the OSB complaints that state law does not allow for a magistrate mental health hold. “Such an order is entirely without legal foundation in Oregon and stripped Mr. Spinosa of all his rights and protections,” he wrote. Hermann, Axford and Kohl had agreed to an “undeniably invalid order” to sidestep the law, he alleged.

An unrepentant Hermann called the OSB complaint a “cruel irony” given that he, Axford and Judge Kohl had agreed on a solution that they felt best for the public and for Spinosa – even though that solution was unsupported by state law.

Hermann and Axford told the OSB that they believed the order was valid and did not intentionally violate the law. The OSB evidently disagreed, as it voted in September 2012 to pursue disciplinary charges against the two attorneys for unmeritorious legal positions and engaging in conduct prejudicial to the administration of justice.

Meanwhile, Judge Kohl granted OSH’s request to dismiss the questionable magistrate mental illness hold, and Spinosa remained at the hospital under a regular civil commitment order.

Disability Rights Oregon (DRO) launched its own investigation following news reports about Spinosa’s situation, according to Bob Joondeph, the organization’s executive director.

Upon completion of that investigation, DRO issued a report in July 2012 that found Hermann, Axford and Kohl had acted outside the law in creating and imposing the magistrate mental illness hold. The legislature makes the law, the report noted, but in Spinosa’s case the attorneys and judge “essentially created a new law that allows for a person with mental illness to be detained without the elements of due process.”

In September 2013, the Oregon State Bar rescinded the charges against Hermann and Axford. “Most notably, the OSB’s case rested on a belief that Hermann and Axford crafted an order essentially to bypass Oregon’s civil commitment process in order to permanently institutionalize a criminal defendant without due process of law,” the agency said in a statement. However, the OSB concluded that the attorneys had tried to initiate, rather than circumvent, civil commitment proceedings.

Hermann said the OSB had made the right decision, and noted the case had prompted the state legislature to pass Senate Bill 421 in July 2013, which created new civil commitment procedures for people who are mentally ill and deemed “extremely dangerous.”

In other words, the legislature created the law that did not exist when Hermann, Axford and Judge Kohl ordered Spinosa to be held indefinitely at OSH.

Source: The Oregonian

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