The Oregon State Bar has voted to pursue disciplinary action against the Washington County District Attorney and a mentally ill criminal defendant's attorney for causing the man's illegal confinement.

Donn Thomas Spinosa stabbed his wife to death on May 10, 1997, but he was found unable to aid and assist in his defense and was sent to the Oregon State Hospital (OSH) for treatment.

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

The civil commitment was renewed annually until 2010, when Washington County District Attorney Bob Hermann claimed that OSH officials notified him that they were considering Spinosa's discharge. OSH officials deny Hermann's claim.

In October 2010, Hermann refilled Aggravated Murder charges against Spinosa and he was again found unable to aid and assist in his defense and returned to OSH. Washington County Circuit Court Judge Thomas Kohl again found Spinosa unable to aid and assist in 2011.

As we've previously reported, Hermann and Spinosa's attorney, Robert Axford, then filed a joint motion asking Kohl to issue a permanent "magistrate mental illness hold" requiring Spinosa's indefinite OSH confinement and prohibiting his release without court approval.

The only problem is that Oregon law does not recognize, or allow for, a "magistrate mental illness hold."

Nevertheless, Hermann argued that the hold was necessary because of the "woeful inadequacy of Oregon law" related to civil commitment. Hermann admits that he and other prosecutors actually dislike the civil commitment process because it removes mentally ill offenders like Spinosa from the criminal justice system.

Hermann offered no authority for the legality of a permanent mental illness hold, because no such authority exists. Nevertheless, Judge Kohl signed the order 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 legal authority for the order, Hermann declared only that he, Axford and Kohl believed the order was valid. Kohl or Axford declined to comment.

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

Hargreaves notes in his OSB complaints 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. Hermann, Axford and Kohl agreed to an "undeniably invalid order" to sidestep the law, Hargreaves alleged.

An unrepentant Hermann scoffed at Hargreaves's complaint, calling it a "cruel irony," given that he, Axford and Kohl all agreed on a solution that they felt best for the public and Spinosa.

Despite a 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 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."

Hermann and Axford both told the OSB that they believed the order was valid and did not intentionally violate the law. The OSB appears to disagree, as it voted in September 2012 to pursue disciplinary action against Hermann and Axford.

The OSB is pursuing two charges against each attorney, for asserting unmeritorious legal positions and engaging in conduct that is prejudicial to the administration of justice. A three-judge panel appointed by the Oregon Supreme Court will hear the case, said OSB Spokeswoman Kateri Walsh.

If found guilty of the charges, Hermann and Axford could face sanctions ranging from public reprimand to license suspension or disbarment, according to Walsh. Hermann and Axford declined to comment on the pending disciplinary proceedings.

Disability Rights Oregon (DRO) launched an investigation of its own following an October 21, 2011 newspaper story about Spinosa's situation, according to executive director Bob Joondeph.

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

In May 2012, Kohl granted OSH's request to dismiss his invalid "magistrate mental illness hold." It is not clear if Hermann or Axford took a position on that motion.

Spinosa remains confined at OSH under a civil commitment order. We will report on any significant developments in the case.

Source: The Oregonian

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