Tuesday, January 8, 2013

More truths and untruths about sentencing -- Part 2

In my last post I discussed the problems with the Commission on Public Safety's process:
  1. It was largely hand-picked group of like-minded people;
  2. There was no opportunity for public comment or participation;
  3. Judge DeMuniz never allowed a straight "up or down" vote on ANY of the recommendations;
  4. DeMuniz insisted the Commission would merely pass on the report rather than vote to endorse.
Point 4 is important because it is up to the legislature to enact the Commission's recommendations. Without a vote from the commissioners, legislators cannot tell which parts of the report are widely and diversely supported and which are attached to a great deal of controversy, and therefore will require a lot of work to pass or defeat.

An example of the latter is the proposals to dramatically alter Measure 11, which voters passed by a 2 to 1 margin in 1994 and then in 2000 rejected its repeal by a 3 to 1 vote.

Virtually all second-degree Measure 11 charges (including Assault 2, meaning stabbing someone; and Robbery 2, using an unloaded gun to rob a store) can already be treated by a judge as a non-mandatory sentence even if the district attorney disagrees. Even the "tough" Measure 11 sentences for these crimes are roughly 5 to 6 years. The Commission proposes to dramatically reduce the sentences to 3 years as well as to provide the convicted with an array of early-release options, something that Measure 11's truth-in-sentencing specifically attempts to avoid.

Throughout the almost year-long Commission process the well-known Pew Foundation's Center on the States, which works to "reform" sentencing policy across America, provided much of the research support.

Early in the process the staff of the Commission adopted a Pew report claiming that as many as 26 percent of the approximately 14,000 men and women in prison in Oregon are in fact "low risk" inmates who probably don't even need to be in prison. The sole district attorney on the Commission, John Foote, asked for and was provided a list of their names.

Here is the list of every one of the almost 900 inmates, along with their crime, criminal history, and sentence.

Twelve on the list were convicted from Clatsop County. As did all the other district attorneys with their own lists, I pulled each defendant's file. Pew's "low risk" inmates include a man who pled guilty to murder and is doing 30 years, another who was convicted of manslaughter in thefirst degree and is doing 12 years, and a bunch of repeat drunk drivers and repeat felon property offenders.

I've listed all 12 below, with brief descriptions.

The bottom line remains:
You have to work really hard to get into prison in Oregon. We have a balanced judicial system that doesn't need the overhaul of the Commission on Public Safety.


The document linked above is a 74-page report that begins with with a three-page cover letter from Clackamas County DA John Foote follwed by 69 pages that provide the specifics each defendant, arranged alphabetically by county. Here are the 12 from Clatsop County that Pew's Center on the States considers "low risk."

1.            Christopher Fitzhugh – SID #18578382 – Risk Estimate 12.5%  Case # 10-1228. Convicted of Murder and Assault 2 – Sentence 30 years Measure 11, 25 + 5 years of the 70 months for Assault 2 consecutive with murder – Sentencing 9/13/11. Defendant brutally beat if not tortured long term domestic associate to death and while no actual convictions multiple prior arrest in Gulf Coast as he had been beating women since he was 15.

2.            Kenneth Middleton – SID #7060306–  Risk Estimate 12.8% Case No. #10-910. Convicted of Manslaughter 1, Assault 2, Recklessly Endangering x3, Reckless Driving and DUII. Sentence, Measure 11,  13 years – 10 years on Manslaughter 1 (after jury trial) 3 years of Assault 2 consecutive, remainder concurrent despite our requests. Defendant killed a motorcyclist and badly injured his daughter with a BAC of .22. His record included 2 misdo Assaults in Alaska  in 1996, 4 Contempt of Court convictions, one DUII diversion in 1996 and a DUII conviction in ’98.

3.            Jerry Miller  – SID #17571972 Risk Estimate 17.2%  – Case No. 11-1063 – Defendant pled guilty to level 8 DCS – Substantial Quantity of meth (1/4 pound of meth found)  Defendant stipulated to 6-A on grid. Received on 4/8/11 28 months DOC (likely eligible for AIP) Previous convictions include DCS/Meth in 2011, 3 felony PCS from (all in 2006, 2 Theft 1s, Assault 4 x 2, Felony Attempt to Elude and Hit and Run, False info to Police Officer and 2 counts Malicious Mischief (WA state)

4.            Brian Smith -  SID 18412055 – Risk Estimate 14/1%  - Case #10-1191. Convicted by plea to Felony DUII – Sentenced on 1/18/11 to 14 months DOC. Defendant admitted about 12 beers refused everything. Blood test .13 about 90 minutes after driving. Previous convictions include, Theft 2 x 2, Burg 2, and 4 prior DUIIS from 2006-2009.

5.            David Schmidt  SID #18485787, Risk Estimate .17%  - Case # 10-1192. Convicted by plea to Felony DUII – Sentenced on 3/8/11 to 13 months DOC. Defendant did not realize he was driving wrong way on Highway 30 and blows .16. Previous convictions include so-called “Negligent Driving” In WA in 2001 and 3 DUIIs from 2001-2009

6.            Jennifer Ames – SID #19239268, Risk Estimate 8.3% - Case # 11-1197. Convicted by plea of Theft 1 as Repeat Property Offender, 2-E on grid. Sentenced on 12/16/11 to 13 months DOC concurrent to WA state state prison time currently being served. Defendant and co-def had written dozens of bad checks totaling over $2000. Prior Convictions included Theft 2 x5, Theft 3 x 2, Escape 1, Unlawful Issuance of Bank Draft x3, (WA),  and felony Theft with Intent to Resell (WA)

7.            Jason Graham  - SID # 13561974, Risk Estimate 11.6% Case # 10-1138. Convicted by plea of Theft 1 as 3-E, Defendant was Repeat Property Offender, Sentenced on 2/25/11 to 13 months DOC. Previous convictions include Theft 3 x 3, Theft 2, Theft 1, Bail Jumping x 2, Possession of Firearm (WA felony), and PCS x 3.

8.            Nancy Merritt SID # 8461946, Risk Estimate 14.8%, Case # 11-1089. Convicted by Plea to Felony DUII Defendant was 6-C on grid.  Search warrant reveals a .13 BAC.  Sentenced on 7/29/11 to 15 months DOC. Previous convictions include PCS and 4 DUIIs, 3 from ’08-‘08

9.            Jose Alfaro-Arciga,  SID # 6335784, Risk Estimate 9%, Case # 11-1137. Convicted of Attempted Assault 2 as LIO of charged Assault 2 for stabbing room-mate, Sentence grid 10-F,  Defendant sentenced to 24 months DOCC with 50 more months DOC if revoked. Previous record includes Theft 3, Illegal Entry into US, DUII x 4, Reckless Driving, Burglary 1, and Felony Poss of Forged Instrument x 2

10.          Kelly Knispel (female)  SID # 6234824, Risk Estimate 8.4%, Case # 10-1058. Convicted by plea to Burg1 (level 8 occupied dwelling) 9-G on grid. Sentenced on 4/20/11 to 30 months DOC ( we were advised by DOC she was to be released LESS than 12 months later on 4/5/12). Previous convictions include Assault 4, DUII x 3, Felony DWS, and Improper Use of 911.

11.          Derrick Baker  SID# 5999874, Risk Estimate 17.8%, Case # 11-1048. Convicted by plea to Felony DWS. Defendant is stopped and tells off duty OSP trooper who knows him “ I know I am VERY suspended.”  Defendant is correct. He has 16 pending suspensions, most for MV crimes. Sentenced on 7/29/11 as 6-A on grid to 25 months DOC. Previous convictions include DUII x 4, (including Felony DUII in ’06), D CS, PCS,  Public Indecency x 3 , Assault 4 x 2, Assault on Public Safety Officer, False Info to Police, Criminal Mistreatment 2,  Resisting Arrest, Harassment x 3, and Burglary 1.

12.          Dana Elorriga, SID# 4642136, Risk Estimate 14%, Case # 09-1374. Convicted of Felony DUII as 6-A on grid. Defenad nt ignored lights and siren, drove home, refused all tests. Search warrant BA was .18$. Sentenced on 2/18/11 to 13 months DOC. Previous record includes DUII X 4 (plus DUII diversion) and Harrassment.


  1. It would seem that the District Attorneys have a lot to do with the light sentences for felons. Consider that you let an Astoria City Councilman off from prosecution for several felonies with a contribution to a charity and a promise not to err again. Consider that you held a case of a child abuse under the desk until the statute of limitations had tolled. Consider... consider... Their may even be a few DUII cases in that mess.
    Perhaps you should spend more time prosecuting criminals and less time in the political area?

  2. If you are referring to former Astoria City Councilman Jim Wilkins, yes he was allowed into the same diversion program over 15 years ago that anyone with his lack of record would get. Ask him how he was treated. He feels like he was persecuted and he was recalled.
    I am very proud of the record of the DA's office, most of the day to day work done by an excellent staff of 6 Deputy DAs, 6 trial assistants, 2 victim co-ordinators, two child support agents, and a superb office manager. I would put our record up against that of almost any office.
    I allow anonymous people like you to make undocumented claims because under the light of day they don't hold up. NOBODY either gets prosecuted or get s free pass because of who they know or who they are. Part of my job is to advocate for change or even just enforcement of existing laws. This blog is managed off-site and after working hours.
    So, which of the inmates I listed we helped send to prison would you, ANON, let out?

  3. I cannot imagine you would say anything else. Fortunately, you are too smart to actually believe Jim got the same as "everyone else", Jim once said Willis Van Dusen would never be prosecuted for DUII in "his town". And, You must say that the other cases you did not mention were handled in the best interests of justice rather than the best interests of the defendants and their connected friends.
    In the end, you are the guy who won the election and that is the only measure for elected official.
    Your errors will not be presented until you have moved on. This is the sad comment on American government today.

  4. Look, "Anon", you seem to be implying, off-topic, that I have granted special treatment to a favored few. I haven't deleted your accusation although I came up with a specific if old example. No one in Astoria seems shy about talking trash about me, so please name the people who got special treatment or shut up.

  5. This comment has been removed by a blog administrator.

  6. I agree. Please provide a method for us to obtain written immunity from criminal and civil prosecution and liablility for naming names, and I will be happy to do so.

  7. What a bunch of malarkey. Truth is an ultimate defense. If you name names and facts, and your are truthful, you could not be sued for libel or slander, nor criminally prosecuted for the same. Which completely ignores the fact that an opinion that someone was prosecuted or treated "lightly" is not slander, because it is an opinion.

  8. This comment has been removed by a blog administrator.

  9. Come on, truth is a absolute defense? Certainly that used to be the case when lawyers did not have to write their own code of "ethics". Today, truth is intrepreted by the particular folks who want to subscribe to it. Truth? Long ago sacrificed at the alter of lawyerism.

  10. Ok, so Josh is saying that City Counselor Jim Wilkins got the same treatment as anyone in Clatsop County who was accused by the police of soliciting prostitution and using drugs? And that treatment was a plea to a crime and a donation to charity, but if Wilkins was not caught commiting other crimes in a year, his case was dismissed, and sealed, and he could legally say that his crime never happened?
    No wonder the crime rate here is so high.

  11. Personally, I'd say the crime rate being "so high" may have more to do with the lax punishment than what the DA is or isn't doing. But, you seem to be content to argue that somehow he should be able to disprove of something that you won't name with any specificity. A child abuse case hidden under his desk? Wow. That's so descriptive that anyone should be able to know exactly what you are talking about, as long as they happen to reside in your head. Seats in the peanut gallery are cheap for a reason. You bemoan the way of "American government", but are obviously not willing to risk anything to make it change. Pipe up or pipe down, but don't just blow smoke.

  12. So, an Anon writing as Anon criticizing an Anon for writing as Anon. This guy sure is piping up.
    First, the lax punishment is a factor of the plea bargains, which are all done with the permission of the DA. Anyone who thinks someone other than the DA lets drug dealers and panders off with a slap on the wrist is, simply, wrong.
    Second, I should think the accusation of a child abuse case being kept under the desk of an assistant DA until the statute of limitations tolled would be sufficient to warrant an investigation. Do you think there are so many cases treated this way that one must be cited in particular to make a case? Please just say yes. Give me the name and number of the Attorney General's investigator and I will call him and provide the details. Promise.

  13. You apparently misuderstand. I am not criticizing you for writing as anonymous. I am criticizing you for saying you have facts, but you won't reveal the facts. I'm not saying name yourself, I'm saying put some facts in. What ADA held a case under the desk until the statute of limitations expired? What are the facts of that case? Who was it done to protect? Did the parents of the child raise a fuss, or were they the suspects? Why did child protective services or law enforcement agencies not raise a fuss? What law enforcement agency requested the filing of charges? Was it a grand conspiracy involving all the agencies that would be involved in such an investigation? None of that is asking you to name yourself.

    Secondly, I think your claim that there is too high a crime rate may need to be examined? Too high compared to what? Are you saying that the crime statistics in this DA's district is higher than in other DA's districts in Oregon? Or are you saying the crime rate as a whole in Oregon is too high? What are we comparing?

    As for your opinion on sentencing, there are several factors that do not include the DA. First, and foremost, is the legislature. Only the legislature can pass laws that will reduce the crime rate. Secondly, a judge does not have to accept a plea bargain. He can reject it. So, in that sense, the judge must also be involved in the actions which offend you. Additionally, in most states, a defendant can plead "blind", which means he does so without a plea bargain and the judge sets his sentence.

    While Measure 11 did strengthen the punishments of some crimes, it is still weaker than what some states have. If you want to look for lower recidivism, etc., then look at the states who have the lowest rate of recidivism and see what their laws are.

    In each state, as in each society, there is a choice to make. You can either lock people up for long periods of time, and pay the money to house them, or you can have them back on the street sooner or later where they can commit more crimes. The choice is whether you want it to be sooner or later, and if it's later, how much are you willing to pay to have repeat offenders removed for serious lengths of time?

  14. Oh. I forgot. It took me all of one Google search (Oregon Attorney General) and two clicks on that website to find where you could contact them. I suppose that never occurred to you?

  15. Look, this is a completely ANONYMOUS forum.
    People say incredible trash about me which is false and....nothing happens.
    IF you actually believe that during the almost two decades I've been DA that either 1) someone has escaped prosecution because of who they are or 2) someone was charged who would otherwise NOT have been because I don't like them - name the cases, or SHUT UP and I'll delete all these off-subject comments.
    If I'm so mean why weren't people like Richard Lee, Jeff Hazen, Ann Samuelson, or any of the current characters in the City "persecuted?"

  16. Josh, Lee, Hazen and Samuelson were persecuted. None of these three people were in the "City" (Lee and Hazen live in Lewis and Clark and Samuelson was living in Jewell).
    But, why don't you just go ahead and erase all the comments. Even better, simply don't allow them. These daysy you increasingly only get defensive to questions in any case. That serves no one, even you.

  17. Josh, you seem to be criticizing the Commission of Public Safety. Were you not a recent past member of the Commission? What happened? Has the Commission changed so much from the one you were on?

  18. First off my office never prosecuted Samuelson, Hazen, the Mayor or any member of the Astoria City Council. If I'm so vindictive you'd think I could be a little creative. I DID prosecute Richard Lee before he was a county commissioner for running an unlicensed puppy mill. It was a county ordinance and normally not my job but the then county aspdministration ASKED me to handle the 2-day trial before a visiting judge who there out the charges on a hyper technicality.

    As to my strong disagreement with the Oregon Criminal Justice Commission, yes I have been/am very critical of their actions,,they were once a genuine broad -based advisory group of many viewpoints. Now it ha become the echo chamber for the Governor's Office.

    For one last time, if one of these "Anons" wants to accuse me of either using my office to unfairly prosecute someone with whom I disagree or conversely that I gave a pass to friends NAME THEM. Councilman Wilkins was no friend and for years he blamed me for his recall with which I had no involvement whatsoever.

  19. Wilkins, Elfering, Lingstadt, Roman, Forrester.

  20. Okay, let's go through these trying to preserve some privacy:
    Wilkins - given a conditional discharge 15 YEARS ago
    Elfering - Never Prosecuted
    Lingstadt -Not prosecuted
    ( none of above are friends of DA)
    Roman -what?? - he says I help make him more money
    Forrester - something happened with him over 20 years ago before I was DA. Gerttula was.
    'Nuff said.
    This topic is CLOSED here.

  21. Several inquiries (apparently made by the same anonymous) has asked about Circuit Court DUII stats. The Circuit Court has a large (and hard working) jstaff and a publicly-accessible court terminal (my office has a hard time getting even judicial orders from Muni Court with one part-time employee)
    But using our internal DACMS (DA Case Management System) I ran all DUII cases filed by my office in calendar year 2012.
    It took a couple hours because we don't have an IT Analyst -
    305 DUII cases files
    119 DUII diversions
    84 guilty pleas or convictions
    3 not guilty verdicts
    30 no file/insufficient evidence (a critical check and balance to ensure someone doesn't end up having to hire a lawyer when for example they blew .04, were not taking drugs but got a citation anyway)
    41 pending cases (not unusual since cases often take more than a year to resolve)
    Approximately 5 cases were submitted to our office by APD officers but were sent to Muni court when Judge Norblad's stayed his order.
    Note that NO Munivipal Court DUII citation is endorsed (or initialed or signed) by the city prosecutor as required by ORS 131.005 - EVERY DUII filed by the DA's office is so endorsed which verifies a review of the case. The result is that in about 10% of cases the Deputy DA does not think there is enough evidence to ensure a defendant is likely guilty. This review saves a citizen having to make an un-necessary court appearances or hiring a lawyer.