by Mark Wilson

The Oregon Court of Appeals held that an alleged rape victim was required to turn over her computer for in camera inspection of her internet searches. That is, a criminal defendant's right to access "important and exculpatory" evidence trumps the victim's privacy rights.

In 2011, Bend, Oregon, anesthesiologist Thomas Harry Bray, met a woman, identified only as "J," online. After meeting for drinks, they returned to Bray's apartment. J left five hours later, with injuries to her jaw, eye, neck, shoulder, upper back, and vaginal area.

"Remember how I told you about that doctor?" J texted a friend. "I think he raped me last night." J conducted Google searches of Oregon law to determine whether the incident "counted as rape or not," since she willingly went to Bray's apartment.

J then called police, alleging that Bray "repeatedly spit in her face, slapped her, choked her into unconsciousness, pulled out some of her hair, and raped her vaginally and anally." Bray claimed that J sustained the injuries during consensual "rough sex."

Bray was charged with four sex crimes, strangulation, and assault. "Before trial, Bray sought access to Google records regarding J's search history ...

by Mark Wilson

The Oregon Court of Appeals vacated a probation revocation judgment, finding that the court improperly revoked for the violation of a special condition that was not imposed by the court.

Valora Rivera-Waddle pleaded guilty to assaulting a public safety officer and was sentenced to 60 days in jail and a 36-month term of probation. She was also ordered to pay a $200 fine.

None of Rivera-Waddle's probation conditions prohibited her from consuming alcohol. Nevertheless, her probation officer had her sign three "action plans," agreeing to abstain from intoxicants.

Rivera-Waddle ultimately consumed alcohol on multiple occasions, and the state brought probation revocation proceedings against her. The court revoked her probation and sentenced her to 30 months in prison and a 24-month post-prison supervision term.

The Court of Appeals reversed. Following State v. Maag, 41 Or App 133, 135, 597 P2d 838 (1979), the court agreed with Rivera-Waddle that probation may be revoked only for violating conditions imposed by the sentencing judge at the time of sentencing.

"Although defendant signed 'action plans' requiring her to abstain from intoxicants, that condition was imposed after sentencing by her probation officer pursuant to a catch-all provision that she . . .'abide by the ...

by Mark Wilson

"What's happening at the Oregon Department of Corrections is unconstitutional and its inhumane treatment of people and it has to stop," said Mat dos Santos, legal director for the Oregon chapter of the American Civil Liberties Union (ACLU). "Unless they make significant changes in the way staff approach transgender prisoners, people are going to keep getting hurt and people are going to die. It's that serious."

Michelle Wright, 25, has identified publicly as a woman since 16 years old. That was not a problem until 2013, when Wright was sentenced to the Oregon Department of Corrections (ODOC) for five years.

On October 17, 2016, the ACLU filed federal suit on behalf of Wright, alleging that ODOC officials are deliberately indifferent to her serious medical needs and safety.

In 2013, an ODOC intake officer noted that Wright had seen counselors about her gender, but had not been formally diagnosed with gender dysphoria. An ODOC psychologist made that diagnosis in November 2014, according to dos Santos.

Wright requested hormone treatment, but prison officials refused. Her requests for counseling and feminizing products, such as hair removal cream, were also denied.

One month later, Wright attempted suicide and was ...

by Mark Wilson

Prisons and jails across the country went tobacco-free years ago, to avoid second-hand smoke lawsuits and rising medical care costs. Now, impoverished jails are selling prisoners e- cigarettes, in hopes of profiting off their addiction.

“Hope I can make $45,000 a year and that profit will be turned in to help pay these guards for being understaffed, underpaid,” said Macon County, Tennessee Sheriff Mark Gammons. Another motive is to end jail tobacco smuggling, admits Gammons.

Electronic cigarettes, which eliminate second-hand smoke, range in price from $12 to $200 for the best e-cigarette on the market. “The soaring popularity of e cigarette has made the market much more competitive and all electronic cigarette brands are trying to make a mark in the market with best quality products,” according to DigitalSmoke.org. This new and rapidly growing industry is expected to generate revenue topping $1 million by the end of 2013, estimates DigitalSmoke.org.

On August 6, 2013, the Macon County Jail started selling detainees a $13.50 e-cigarette. Unlike many on the market, the jail version is not rechargeable, forcing prisoners to buy a new cigarette every 500 puffs or so.

“This way anybody that ...

by Mark Wilson

After serving more than ten years on death row, a 60-year old Oregon prisoner had his death sentence vacated and was ruled ineligible for the death penalty, due to an "intellectual disability."

In November, 1991, Gerald Glenn Phillips, 32, and Belinda Fay Flannigan, 30, were shot to death in a Portland, Oregon motel room. Police immediately suspected Flannigan's ex-boyfriend, Michael Davis, 35, but they had insufficient evidence to charge him.

On June 20, 2002, the United States Supreme Court imposed a categorical ban on the death penalty for people who suffer from "intellectual disabilities," commonly associated with an IQ below 70.

Davis was finally indicted for the 1991 double homicide in 2002, and was ultimately convicted. Despite his long and extensive history of "intellectual disability," including IQ scores of 61 and 62, Davis was not evaluated under Atkins and was sentenced to death in 2005.

In September 2016, Davis had his death sentence vacated because he was not evaluated for possible intellectual disability under Atkins, before sentencing. The case was then remanded to the sentencing court for further proceedings.

The court held a three-day Atkins hearing, in which it heard testimony from Davis's three expert ...

by Mark Wilson

The Oregon Court of Appeals reversed a lower court's refusal to appoint counsel on a request for DNA testing, twice. The court instructed that a guilty plea does not foreclose eligibility to file such a request.

Under Oregon law a person who was convicted of aggravated murder, murder, or a sex offense may petition the court that entered the judgment for appointment of counsel at state expense, to assist the person in determining whether to request DNA testing under ORS 138.690 to 138.698. The petition must be accompanied by: (1) an affidavit of indigency; and (2) an affidavit averring that (a) he meets the criteria of ORS 138.690(1), (b) he is innocent of the offenses he was convicted of, (c) the identity of the perpetrator of the crime was at issue during the original prosecution, and (d) he lacks sufficient funds or assets to hire an attorney to represent him in determining whether to file a motion under ORS 138.690. The court "shall grant" a petition for appointment of counsel if those documents are filed and it appears that the person is financially unable to retain counsel. ORS 138.694(2 ...

by Mark Wilson

The California Court of Appeals held that the victim notification requirements of "Marsy's Law" do not extend to the Governor's sentence commutation authority.

Near midnight on October 3, 2008, Esteban Nunez, Rafael Garcia, Ryan Jett, and Leshanor Thomas were refused admittance to a San Diego State University fraternity party. They were angry and decided to fight someone, to show how they "did it in Sac Town."

Nunez and his friends started an unprovoked fight with unarmed victims. Jett stabbed Luis Santos in the heart and he died at the scene. Nunez stabbed two other men, but both lived. A fourth victim suffered a fractured orbital wall.

Nunez and his friends fled to Sacramento, threw their knives in a river, and burned their clothes. When they were arrested Nunez, the son of former Speaker of the California State assembly Fabian Nunez, was charged with the Santos murder and with assaulting both of the men he personally stabbed.

Nunez ultimately pleaded guilty to voluntary manslaughter and two counts of assault with a deadly weapon. On June 28, 2010, he was sentenced to 16 years in prison.

On his final day in office, California Governor Arnold Schwarzenegger "announced ...

by Mark Wilson

Between 2009 and 2014, forty-one states and the District of Columbia enacted 155 laws - 93 in 2013 and 2014, alone - to ease the impact of some “collateral consequences of criminal convictions,” according to a recent report of the Vera Institute of Justice, Center on Sentencing and Corrections. Yet, those reforms do not go far enough to have any meaningful impact, the report found.

During the “tough-on-crime” era of the last 40 years, federal, state and local policymakers sought to extend the punitive reach of the criminal justice system beyond formal criminal sanctions. This resulted in “the expansion, both in number and scope, of a vast network of post-punishment penalties and restrictions (or ‘collateral consequences’) aimed at excluding individuals with criminal histories from many aspects of mainstream life,” the report found. Those collateral consequences were designed to “continue to stigmatize and marginalize individuals - with a criminal record well beyond their sentences. What has resulted is a system to delineate a person’s status as either a law-abiding member of the community at large or as one of those who must forever sit outside it.”

Today, approximately 45,000 laws and rules impose post-sentence civil penalties, disqualifications ...

Two Oregon jail employees who pleaded guilty to 40 criminal charges were sentenced to 36- and 50-month prison terms for having sex with the same prisoner 19 times.

Jill Curry, 38, a civilian jail services technician at the Washington County Jail since 2004, and the wife of a sheriff’s deputy, was apparently bored with her life.

Between May and July 2014, Curry repeatedly let 25-year-old prisoner Jeng-Li Delgado-Galban out of his cell and took him to a supply closet to engage in sex.

Curry told someone she was having sex with Delgado-Galban and that person reported her, according to an affidavit released by law enforcement officials on August 20, 2014. Investigators then secured video footage of Curry and Delgado-Galban entering the closet together at least six times. Curry later admitted to having an improper sexual relationship. [See: PLN, July 2016, p.63; May 2015, p.63; April 2015, p.63].

Delgado-Galban, a reported gang member, was in custody on charges of tampering with a witness, sexual harassment, failure to register as a sex offender, false swearing, harassment, second-degree assault and unlawful use of a weapon. He reportedly testified against Curry before the Washington County Grand Jury.

Following her indictment on ...

The Oregon Court of Appeals held on June 17, 2015 that a true life sentence for “an incorrigible masturbator” was an unconstitutionally disproportionate punishment – a decision subsequently upheld by the state Supreme Court.

Under ORS 137.719(1), certain recidivist sex offenders may be sentenced to a presumptive life sentence without the possibility of parole when convicted of a third felony sex crime. Public indecency is a felony sex crime if the offender has a prior conviction for public indecency or another sexual offense.

In July 2006, Dennis James Davidson’s grandmother caught him masturbating while looking out the window at the neighboring home of a young woman, identified only as “A.” That same month, another neighbor observed Davidson, 39, masturbating on the porch of A’s residence. When Davidson saw the neighbor, he thrust his hips in her direction and yelled “You want some of this?”

After the police arrived Davidson denied the neighbor’s accusations, telling the officers that he knew A, had just been in her home where they had masturbated together, and the neighbor saw him zipping up his pants as he left after the encounter.

During a search of Davidson’s backpack, police found a bottle ...