OCVLC Legal Director Rosemary Brewer represented the family of Duncan and Ellen McKinnon at inmate Andrew Metz's murder review hearing before the Board of Parole and Post-Prison Supervision on July 11 at the Oregon State Penitentiary. The only issue for review at the hearing is whether the inmate is capable of rehabilitation within a reasonable amount of time. The inmate has the burden of proving by a preponderance of the evidence that he is capable of rehabilitation.
Mr. and Mrs. McKinnon were murdered by Metz in September, 1991, while vacationing with their daughter in Seaside. As the McKinnons slept in their hotel, Metz entered their room through an open window and viciously stabbed the couple to death. Their daughter, who was staying across the hall, heard the commotion and came out of her room, encountering Metz as he exited her parents' room. Metz had blood on his face and ran down the hallway. The McKinnons' daughter went into the room and found her mother dead, and her father dying. Mr. McKinnon, who was 72 years old, died as he was being transported to a Portland hospital. Mrs. McKinnon was 68. Metz had stolen jewelry and a wallet from the McKinnons. The OCVLC submitted a memo to the Board prior to the hearing arguing that Metz had not shown he was capable of rehabilitation and asking the Board to defer Metz's next hearing for a period of ten years. At the hearing, Brewer read the statements of the McKinnons' daughter as well as their grandchildren. The McKinnons' son Michael presented a statement, as did Clatsop County District Attorney Joshua Marquis, who prosecuted Metz for the murders. Senator Elizabeth Johnson (D-Scappoose) also attended the hearing. The Board is deliberating and will release its decision within the next few weeks. Related News Article OCVLC Legal Director Rosemary Brewer represented the family of one of Gillmore's victims, who was 13 years old at the time of the crime. Although Gillmore was sentenced in 1988 to at least 30 years in prison with a 60-year maximum, the parole board cut the minimum sentence in half. Gillmore was last up for parole in 2010. The Multnomah County District Attorney's Office and OCVLC argued on June 13, 2012, that Gillmore should be kept in prison for 10 years before being considered for parole again. While two of the three parole board members voted to defer another hearing for five years, one member voted to release Gillmore in October of this year.
On April 25, former OCVLC Legal Director Janine Robben was honored at the Oregon Department of Justice Crime Victims' Services Divisioncommemoration ceremony of National Crime Victims' Rights Week.
Janine was recognized for her pivotal role in getting OCVLC off the ground, the first non-profit to provide direct legal representation at no cost to crime victims in Oregon. "Janine set the standard for future crime victims’ attorneys and in the process, helped to make the criminal justice system a little more bearable for crime victims," the ceremony organizers indicated. Also honored at the ceremony for their commendable work on behalf of crime victims were:
On Apr. 6, OCVLC Legal Director Rosemary Brewer presented at the 25th Annual Contemporary Issues in Criminal Justice, sponsored by the Oregon State Bar's Criminal Law Section.
The CLE's central topic was victims as parties in criminal cases. As a presenter in a panel about the impact of victim rights laws on criminal prosecutions in Oregon, Brewer shared with participants her experience representing crime victims in criminal cases and the issues she most often deals with when asserting and enforcing their rights. Other presenters at this webcast-event included: Daniel C. Bennett, Office of Public Defense Services, Salem, Bradley C. Berry, Yamhill County District Attorney’s Office, McMinnville, C. Lane Borg, Metropolitan Public Defender Services Inc., Portland, Lindsey K. Detweiler, Office of Public Defense Services, Salem, Jeffrey E. Ellis, Oregon Capital Resource Center, Portland, Amber A. Hollister, Oregon State Bar, Tigard, Dwight C. Holton, Candidate for Oregon Attorney General, Jennifer S. Lloyd, Appellate Division, Oregon Department of Justice, Salem, Joshua Marquis,Clatsop County District Attorney's Office, Astoria,Kurt S. Muntz, Muntz & Ghio LLC, Salem, Ellen F. Rosenblum, Candidate for Oregon Attorney General and Timothy A. Sylwester, Appellate Division, Oregon Department of Justice, Salem. On March 20, 2012, the OCVLC helped persuade the Oregon State Board of Parole and Post-Prison Supervision that an inmate who had raped and murdered a 16-year-old classmate should serve the maximum time allowable, 228 months, plus an additional 108 months. The inmate, Conrad Engweiler, is one of five men known as the “Oregon Five” who were convicted of aggravated murder as juveniles in the years between 1989 and 1995.
Engweiler was 15 years old when he murdered Erin Reynolds in 1990. At that time, Oregon did not have a sentencing matrix applicable to juveniles convicted of aggravated murder. Engweiler was sentenced to life with a minimum term of 30 years. However, it was later determined that Oregon law did not allow the court to set a minimum term for juveniles, and in 1999 the Board of Parole promulgated a new set of rules designed to apply to juveniles convicted of aggravated murder. Under these rules, the Board of Parole set a minimum term of 40 years for Engweiler. He appealed that sentence, and in 2011 the Oregon Supreme Court ruled that that Parole Board had to hold a hearing for Engweiler to set an appropriate term and an initial release date. This ruling affects all five of the inmates currently incarcerated for committing aggravated murder as juveniles before 1995. Engweiler’s hearing was the first of the prison term hearings for the Oregon Five. At the hearing the three-member board unanimously decided that Engweiler should serve a minimum term of 228 months, the maximum term allowable under the sentencing matrix that was applicable at the time of his crime. In addition, the board has the authority to add 108 months to the sentence if an “aggravating factor” was found. Rosemary Brewer, Legal Director for the OCVLC, argued that two aggravating factors applied: that the inmate knew that the victim was particularly vulnerable and that the inmate’s criminal history was more serious than reflected by the history/risk score. The board found that both of these aggravating factors did apply and added the 108 months. Engweiler is eligible for release in February 2018. There will be a hearing in August 2017 to determine whether he should be released at that time. Engweiler’s release also was opposed by Multnomah County Deputy District Attorney Charles French and by members of the Reynolds family, including Erin Reynold’s father, sister, and brother. The OCVLC argued on behalf of Erin Reynold’s stepmother. Oregonian related news coverage Victim's Family Speaks Out A Multnomah County judge has granted the Oregon Crime Victims Law Center's motion to quash a subpoena that was seeking all of a domestic violence victim's Department of Human Services (DHS) records and mental health treatment records.
The defendant, who is accused of stabbing the victim, had sought an in camera review of any and all records that might be held by DHS relating to the victim, as well as any records of any kind of mental health treatment that the victim may have sought. There was no time limitations on the defendant's request, and the defendant had no actual knowledge of whether the records actually existed. At a lengthy hearing in front of Judge Eric Bergstrom, the defense argued that he was entitled to an in camera review of the the records because he was attempting to show that the victim had "history of violence." Oregon Crime Victims Law Center's Legal Director Rosemary Brewer argued that DHS and mental health records are privileged, and as such, require a showing that there is information in the records that is likely to be material, favorable to the defendant, and admissible as evidence. Referring to Brewer's citing of Kahn v. Pony Express Courier Corp., 173 Or App 127 (2001), the Court denied the defendant's motion for an in camera review and granted the motion to quash on the grounds that DHS records are in fact privileged, as are mental health treatment records, and the defendant did not reach the necessary standard for review. The case was referred to the Oregon Crime Victims Law Center by a victim advocate in the Multnomah County District Attorney's Office. A judge in Yamhill County has limited the release of a sexual assault victim's records after a hearing in which the Oregon Crime Victims Law Center represented the interests of the victim.
The defendant in the case had sought to have the trial judge review all of the victim's medical, mental health, and school records for potential release to him. The Oregon Crime Victims Law Center opposed the release on the grounds that the request violated the victim's constitutional right to privacy and the doctor-patient and psychotherapist-patient privilege, and that the defendant had not shown that there was material in the records that would be favorable and material to his defense so as to overcome that privilege. Legal Director Rosemary Brewer filed a motion asking the court to withhold the records from the defendant. At a hearing on February 7, Judge John L. Collins held that the Oregon Crime Victims Law Center's motion was granted in part, strictly limiting the records that were released to the defendant. None of the victim's school or medical records were released, and only very limited portions of the victim's therapy records were released. The victim learned of the Oregon Crime Victims Law Center through the victim advocates of the Yamhill County District Attorney's Office. The Oregon Crime Victims Law Center (OCVLC) received a $25,000 donation from Vangelisti Kocher LLC.
Richard Vangelisti and Scott Kocher have been strong legal advocates for crime victims in civil cases for many years, and their generous contribution demonstrates a remarkable commitment to making a positive difference in the lives of Oregon crime victims in criminal cases as well. It's this kind of the support from donors that make it possible for the OCVLC to continue offering services at no cost to crime victims in Oregon. Although the OCVLC's core work has been funded by government grants, recent federal funding cuts have made support from private donors increasingly vital to helping the OCVLC continue its important mission. Thanks to the combined efforts of the OCVLC and the Multnomah County District Attorney's Office, a victim of an assault was able to stop an attempt by her abuser to receive access to all of her medical records for the last five years.
The defendant served two subpoenas on the victim, one requesting that she provide her medical, insurance, and driving records from the last five years to the defendant.The other was a "proposed" subpoena that the defendant was planning to issue to all of the victim's medical providers for the last five years.The defendant made no legal or factual arguments in support of the release of these records. The OCVLC submitted a Motion to Quash Subpoenas to the court presenting the argument that the victim had a right to refuse a defense discovery request, that the medical records were protected under HIPAA, and that the defendant could not show that there was information in those records that would be material, favorable, and admissible as evidence at trial. A hearing on this motion was held on Jan. 19 before Judge Jerry Hodson who granted OCVLC's Motion to Quash after finding that the defendant's basis for requesting the records was "conjecture." Newly-hired OCVLC Legal Director Rosemary Brewer represented the victim in this case. On Jan. 18, the OCVLC helped to persuade the Oregon State Board of Parole and Post-Prison Supervision (BPPPS) that an inmate who bludgeoned and then choked to death a Portland man almost 25 years ago should spend at least another 24 months behind bars.
Although the three-member board previously had found that the inmate, Scott Wickee, aka Wickey, was likely to be rehabilitated within a reasonable period of time and had set a release date for April 2012, it unanimously concluded, at a Jan. 18 hearing, that it was not required to release him at that time because he has a severe emotional disturbance that would make him a danger to the community if released. The board set a new release date of April 16, 2014, with another hearing to be held in Fall 2013 to determine whether Wickee’s current psychological status and release plan warrant release at that time. At the hearing, Wickee refused to acknowledge that he and his co-defendant, Kevin Roper, intended both to rob and murder the victim, Eddie Lee “Bobby” Gibbs, when they left Gibbs’ Southeast Portland house together in 1987, despite intense and at times disbelieving questioning from board members. “There were real contradictions,” board chairman Aaron Felton told Wickee about his version of the crime, which Wickee has had almost 25 years to consider. “The story should be clear,” Felton said. “It shouldn’t be ambiguous.” Felton told Wickee that the board also was “deeply concerned” about how he might deal with authority outside prison. “You still need to do some work,” Felton concluded. Wickee and Roper both were convicted of Aggravated Murder and sentenced to life in prison with mandatory minimum sentences of 30 years without the possibility of parole. However, in 2010 the Oregon Supreme Court held that, as a result of the board's 2008 findings that Wickee and Roper were likely to be rehabilitated, it was required to set release dates for them, even though they had not yet served their 30-year minimum sentences. That ruling also affected 28 other inmates, of which Roper was the first to have a hearing scheduled to determine whether his existing release date would be delayed. On Nov. 15, Roper, who had been scheduled for release in March 2012, also was denied release for at least another two years. Wickee's release also was opposed by Multnomah County Deputy District Attorney Charles “Chuck” French and Gibbs' mother and brother. The OCVLC, which represented Gibbs' sister at Wickee’s hearing, also represented her at Roper’s hearing. The Oregon Crime Victims Law Center is pleased to announce Rosemary Brewer as our new Legal Director. A former prosecutor, Rosemary is an accomplished and compassionate attorney with years of experience working with crime victims. We are confident that with Rosemary as part of our team, we will continue to provide the expert no-cost legal services that clients have come to expect from the Oregon Crime Victims Law Center.
Prior to her legal work, Rosemary was a copy editor/ reporter for the newspapers The Atlanta Journal & Constitution and The Oregonian. Rosemary succeeds Janine Robben who stepped down as Legal Director on January 1, 2012. On Dec 31, 2011, Janine Robben ended her service at the Oregon Crime Victims Law Center to spend more time with family and take-on more leisurely endeavors.
Janine leaves "having created a remarkable body of pioneering legal work for Oregon crime victims and a strong foundation for the Oregon Crime Victims Law Center's work ahead," said Former Oregon Attorney General Hardy Myers, who serves as president of the Board of Directors of the Oregon Crime Victims Law Center. The Board of Directors and staff wish Janine a splendid retirement and thank her for all that she has done for crime victims. The Oregon Crime Victims Law Center was honored to have submitted a “friend of the court” brief in an appeal of a private lawsuit in which the Oregon Supreme Court today (Dec. 2) ruled that the State of Oregon is entitled to millions of dollars in punitive damages.
The ruling in Williams v. Philip Morris hopefully will be the final legal step in a 12-year-long effort to get the tobacco company to pay the state’s share of the $79.5 million in punitive damages that a Multnomah County jury awarded in 1999. With interest, the damages currently are estimated at $100 million, of which the state will get approximately $55 million. The jury based the punitive damages award on Philip Morris’ “extraordinarily reprehensible” conduct in concealing the health risks of smoking. The plaintiff, Mayola Williams, was the widow and personal representative of Portland resident Jesse Williams, who died of lung cancer in 1997 after decades of smoking. Philip Morris subsequently argued that the state had released its claim to its share of these damages by entering into a multi-state settlement with tobacco companies that included Philip Morris. (Under Oregon law, the state is entitled to 60 percent of punitive damages awards; however, as a result of an agreement between the state and Williams, the state agreed to accept less than 60 percent. In exchange, Williams’ attorneys argued – with the state – that Philip Morris was not entitled to keep 60 percent of the jury’s punitive damages award. Williams was represented by Portland attorney James S. Coon and the state by Stephanie Striffler, a senior assistant attorney general with the Oregon Department of Justice (DOJ). The Portland-based National Crime Victim Law Institute also filed an amicus curiae “friend of the court” brief in support of Williams. Under Oregon law, the state’s $55-million share must be used to benefit crime victims. Oregon Supreme Court Media Release Oregon Supreme Court Opinion On November 15, OCVLC pro bono attorney Olufunmike "Fumi" Owoso helped to persuade the Oregon State Board of Parole and Post-Prison Supervision that an inmate who bludgeoned and then choked to death a Portland man almost 25 years ago should spend at least another 24 months behind bars. Although the board previously had found that the inmate, Kevin Roper, was likely to be rehabilitated within a reasonable period of time" and had set a release date for March 14, 2012, Owoso successfully argued that it was not required to release him at that time because he has been diagnosed with a severe emotional disturbance that would make him a danger to the community and does not have an adequate plan for what he would do if released. Roper and a co-defendant, Scott Wickee, were convicted in Multnomah County of Aggravated Murder in 1987 in the death of an acquaintance, Eddie Lee "Bobby" Gibbs. Roper was sentenced to life in prison with a mandatory minimum of 30 years without the possibility of parole. However, in 2010 the Oregon Supreme Court held that, as a result of the board's 2008 finding that he was likely to be rehabilitated, it was required to set a release date even though he has not yet served the 30-year minimum. That ruling also affected at least 29 other inmates, of which Roper was the first to go to this level of hearing. Roper's release also was opposed by Multnomah County Deputy District Attorney Traci Anderson and Gibbs' mother and brother. Owoso, who represented Gibbs' sister, compared Roper's behavior at the time of his arrest with the Roper who described the crime in affectless, sometimes contradictory detail before the board Tuesday. "The Kevin Roper who brutally murdered my client's little brother is the same Kevin Roper who sits before us today," she told the board. A short time later, the three-member panel, ruling unanimously, told Roper that he would remain incarcerated and set a tentative release date for March 2014, with another psychological evaluation and hearing to take place before then. "You still have some work to do," board chair Aaron Felton told him. Video of KATU Channel 2 News coverage of Kevin Roper's parole hearing Related KATU Channel 2 News coverage Related Oregonian article
Following a lengthy contested hearing on Tuesday, Lane County Circuit Court Judge Suzanne Chanti upheld the prosecutor’s determination that a homicide victim’s aunt was a “victim” for purposes of affording her crime victim’s rights in a prosecution for aggravated murder.
Anjelica Swartout is accused of smothering her newborn and putting the body in a dumpster after giving birth in a bathroom of a motel where she worked. Swartout’s sister, Jewel Sward, alerted authorities after finding inconsistencies in Swartout’s story about what happened to the baby. Prosecutors designated Sward the “victim” under Article I, Section 42 of the Oregon Constitution, thereby giving her certain rights including the right to attend the entire trial. Swartout’s attorneys filed a motion to disallow the “victim” designation, arguing that Sward did not meet the statutory or constitutional definition of “victim,” and that allowing her to remain in the courtroom throughout the trial would violate their client’s constitutional due process rights because Sward would be able to tailor her testimony to that of others and she could be referred to as a “victim” before any crime had been proven. Defense attorney Eve Oldenkamp also argued that the Oregon Constitution’s delegation to the prosecutor of the authority to designate who is a victim of crime violates Swartout’s federal due process rights as applied in this case. In rejecting Oldenkamp’s argument, Judge Suzanne Chanti made it clear she had done her homework – she referred to the legislative history of Article I, Section 42, and cited to several cases from other jurisdictions in which similar challenges had been rejected. In supporting his reasons for designating Sward as a victim, prosecuting attorney Bob Lane told the court that, among other listed reasons, Sward had given Swartout emotional support during the pregnancy, had been excited about the birth and saddened by the death of the infant, and had planned the baby’s funeral. Another motion filed by the defense asked the court to order Sward to show the jury a tattoo she got after the death of Swartout’s baby showing the baby’s name. Judge Chanti deferred ruling on the motion until time of trial, but indicated after hearing from Sward’s attorney that if she allowed the tattoo to be shown to the jury, a photo of the tattoo would likely be more appropriate “because of privacy and dignity issues.” Sward was represented by Erin K. Olson, a pro bono attorney appearing on behalf of the Oregon Crime Victims Law Center. |
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