As a rare criminal assault case proceeds against a Washington County sheriff’s deputy, his defense lawyer and prosecutors have become embroiled in back-and-forth complaints of ethical improprieties.
The defense lawyer has accused a longtime county prosecutor of witness intimidation and going after the deputy to advance his political ambitions.
Prosecutors contend the defense lawyer is concocting baseless distractions to derail the case in a smokescreen that shows the difficulty of bringing a cop to justice.
The controversy also has ensnared two other sheriff’s deputies who face serious questions about their honesty after backing up their embattled colleague.
It’s all expected to come to a head in early March when defense attorney Dan Thenell is set to ask Circuit Court Judge Beth L. Roberts to dismiss the case against his client, Deputy Rian Alden.
Alden is accused of slamming a jail inmate against a concrete wall during booking in a 2018 case that prosecutors first dropped and then revived last year when a racist email by Alden came to light.
Washington County commissioners authorized the county to pay $625,000 to the inmate, Albert Molina, who suffered a fractured skull and sued the county. The commissioners found last June that Alden “needlessly injured” and traumatized Molina.
Earlier that same month, the Washington County District Attorney’s Office had reopened an investigation into Alden in the alleged assault.
A conversation that occurred in early June is at the heart of the fallout now serving as a backdrop to Alden’s prosecution.
Thenell claims Bracken McKey, a chief deputy prosecutor in the District Attorney’s Office, tried to pressure two sheriff’s training officers to withdraw their support of Alden’s use of force. McKey, Thenell alleges, also wanted to stop the officers from potentially testifying for the defense that Alden’s actions met training protocols.
Both training officers claimed in sworn statements filed by Thenell that McKey told them he was pursuing Alden so he didn’t look “soft on crime” if he ever decided to run for district attorney and that their testimony wouldn’t look good for the Sheriff’s Office.
But in a striking twist, one of the training officers has since recanted his accusations against McKey and said in turn that Thenell had swayed him to sign the declaration that had improperly characterized his remarks, according to court records.
The District Attorney’s Office asked state police to investigate the circumstances surrounding the drafting of the trainers’ original statements.
In the meantime, two people made complaints about McKey to Washington County’s ethics hotline, echoing Thenell’s accusations. One complaint was anonymous and the other came from yet another sheriff’s deputy represented by Thenell, according to county documents.
The county asked the Oregon Department of Justice to investigate McKey.
The Justice Department subsequently found insufficient evidence to support allegations of witness tampering or coercion, department documents show.
District Attorney Kevin Barton, in a letter to the Washington County counsel, called the complaints against McKey “part of a concerted effort by the defense attorney and associates of the defendant to make this prosecution more difficult.”
Barton noted that a number of deputies in uniform appeared at Alden’s arraignment as a show of support.
Thenell scoffed at the idea.
“That’s ridiculous. These are not people covering for another or one of their buddies,” he said. “And I am certainly not going to jeopardize my bar license by concocting a story to defend any police officer or any person whatsoever. It’s just offensive.”
Alden, 41, has pleaded not guilty to second-degree assault and official misconduct. He remains on paid leave. A trial is set for May 18.
A jail videotape caught him smashing Molina against a wall at the Washington County Jail on March 30, 2018. Molina had been arrested on suspicion of riding a bike while intoxicated.
Rian Alden Washington County Sheriff's Office
The video, released publicly by Molina’s attorneys last year, captured Alden directing Molina to stand against a back wall so he could take his booking photo. Molina appeared to salute or gesture at Alden a few times.
Suddenly, Alden rushed at Molina from about about seven feet away. With his arms fully extended, the deputy pushed Molina into the wall, grabbed him by his neck, pinned him to the ground and straddled him, the video shows.
The Washington County District Attorney’s Office didn’t prosecute Alden in 2018. A senior deputy district attorney who watched the video wrote in a decline-to-prosecute memo that it was of “minimal” value. She never sought Molina’s medical records that documented his serious injuries – a major failing, McKey has since acknowledged.
Molina’s attorneys filed a lawsuit against the county in 2019, noting Molina spent 19 days in the hospital, including five days in intensive care.
Prosecutors then last year re-examined the encounter after seeing an article on OregonLive.com about an investigation into Alden regarding an email filled with racists slurs he had sent before joining the Sheriff’s Office.
Andrew Freeman, a senior deputy district attorney, learned on June 1 that Alden had been placed on paid leave over the racist email, according to court records. Slurs and vulgarities filled the Dec. 18, 2003, message from Alden’s personal email account, including a rant that “(expletive) foreigners come here and decide to take our job for less money even though they don’t belong here,” the records show. Someone had recently posted the email anonymously on social media.
Freeman talked with McKey about the need to review all of Alden’s cases because of the bias expressed in his email, according to the records.
Freeman also told McKey of the office’s prior review of Alden’s use of force against Molina.
McKey, examining the Molina case for the first time, asked if he could meet with a member of the Sheriff’s Office to better understand its use-of-force policy.
The Sheriff’s Office had Sgt. James Cuthbertson and Cpl. Cade Edwards meet with McKey on June 3.
Cuthbertson was program manager for the sheriff’s use-of-force training from 2013 through 2020 and had supervised at least five years of Alden’s instruction leading up to his encounter with Molina.
Edwards was next in line as the use-of-force training manager for the Sheriff’s Office.
During their meeting in McKey’s office, Cuthbertson and Edwards defended Alden’s tactics, saying he acted as trained, all three confirmed in court documents.
Alden used a technique called “crash the line” after Molina responded with profanity and said “let’s go” to Alden when the deputy asked him to turn to his side to take a booking photo, Thenell wrote in court documents.
Alden contends Molina took a step toward him in a “fighting stance,” so Alden moved to restrain him and take him off balance by rushing at him, pushing his shoulders and forcing him to step back, Thenell said.
Dan Thenell Thenell Law Group, P.C. website
The video didn’t back up that account, prosecutors said. Molina saluted, then flipped off the deputy at least twice, prosecutors said. Molina appears to take a step forward but stopped and Alden responded by bull-rushing Molina, placing his hands at back of his neck and slamming Molina’s head into the jail wall, prosecutors said.
The next day, June 4, McKey called Cuthbertson to tell him that he had spoken to a state police use-of-force expert who found Alden’s force unjustified.
McKey also told Cuthbertson that he intended to present a case against Alden to a grand jury.
Cuthbertson said he asked Edwards to listen in to the phone conversation, according to both Cuthbertson and Edwards.
On June 5, McKey first presented the case against Alden to a grand jury, which indicted Alden on first-degree official misconduct.
Bracken McKey Beth Nakamura | Staff
Just before 6 p.m. that night, according to court records, McKey received a text message from Thenell.
“Guess who reps Alden,” Thenell wrote.
“You?” McKey responded.
“It’s your lucky day,” Thenell replied.
Three days later, McKey reached out to Molina’s civil attorneys and for the first time got Molina’s medical records that showed he suffered multiple skull fractures and bleeding on the brain, according to McKey.
McKey returned to the grand jury to seek a second-degree assault indictment against Alden.
Thenell has claimed in court documents that McKey pursued the assault charge because Alden wouldn’t plead guilty to official misconduct.
Email exchanges show McKey alerting Thenell on June 9 that he had just received the medical records. McKey invited Alden to testify before the grand jury because he planned to seek an assault charge against the deputy, according to the emails.
Thenell responded that he was wondering if that was the plan and thanked McKey for telling him.
At no time did McKey offer any plea deal on the Alden case to Thenell, according to the district attorney’s office.
The case took a turn in September.
Thenell submitted to the court nearly identical sworn statements signed by both sheriff’s trainers who backed Alden’s use of force.
Cuthbertson and Edwards said in their separate Sept. 1 sworn statements that McKey told them in the meeting in his office on June 3 that he was prosecuting Alden because he hoped to run for a district attorney seat and didn’t want to be perceived as “soft on crime.”
Washington County Sheriff's Office car Washington County Sheriff's Office
“I believe Chief Deputy McKey was threatening Sgt. Cuthbertson as well as myself to intimidate or influence against any contrary testimony we would provide in Dep. Alden’s criminal case,” Edwards’ statement said.
Cuthbertson said McKey told him by phone in the June 4 conversation that if he were to testify for Alden’s defense “it would not look good for Sheriff’s Office that it would not ‘go well for (me),’” according to his statement.
“I told McKey I felt his statement was a threat ... I believe Chief Deputy McKey was threatening me to intimidate or influence against any contrary testimony we would provide regarding Dep. Alden’s criminal case,” Cuthbertson’s statement said.
McKey has vigorously denied that he mentioned wanting to someday run for the district attorney’s seat or that he had made any threat.
The Justice Department looked into the allegations last July and found insufficient evidence to support witness tampering or coercion, documents show.
“There has been no vindictive prosecution, nor was there a secret disclosure of political ambition,” McKey wrote in court records. “There is only an evolving falsehood, spun to fit Defendant’s needs and pushed by defense counsel in an effort to distort the record and mislead this Court.”
McKey said he called Cuthbertson on June 4 to do due diligence. Among the other things he told Cuthbertson then was that he intended to turn over Cuthbertson’s opinion to Alden’s lawyer because it was exculpatory. That means evidence useful to the defense that prosecutors are obligated to share.
The prosecutor said he told Cuthbertson that Alden’s defense lawyer would likely call Cuthbertson as a witness and “that this would not look good for the Washington County Sheriff s Office,” according to court documents.
“This was simply stating the obvious: arguing that Alden’s response was appropriate and justified would be difficult for anyone to do with a straight face and was going to be embarrassing for the sheriff’s office,” McKey said in a sworn declaration.
He said he never threatened Cuthbertson but was doing his job.
Two months later, Edwards dropped a bombshell.
On Nov. 5, he recanted his sworn statement against McKey, according to court documents filed recently.
“After intensive review and considerable thought, I believe that the declaration I signed on September 1, 2020, improperly and inaccurately characterizes the events,” his new sworn statement read.
“I was influenced and persuaded by Mr. Thenell to adopt the wording of the Declaration that was drafted by Mr. Thenell.’'
Mark Makler, Edwards’ attorney, said Edwards has no “independent personal knowledge” related to Alden’s use of force and had an “emotional response to the fact that a guy he works with at the Sheriff’s Office was being prosecuted.”
A still image from surveillance video shows Albert Molina on the ground in the booking area of the Washington County Jail. Jail video posted by Kafoury & McDougal
Edwards “felt wronged” by the decision to revisit the case when prosecutors had declined to pursue it in 2018, his lawyer said.
Thenell, however, doesn’t accept the recantation and has filed handwritten notes he said Edwards took after the June 3 meeting with McKey.
In the notes, Edwards wrote, “The entire meeting felt ‘dirty’ and politicaly (sic) motivated.”
Of the June 4 call that he listened in on, Edwards wrote in notes: “Bracken was trying to influence Cut’s testimony” by telling him that he would be called as a witness and that “it won’t be good for the sheriff’s office” and “to think about what he wanted to do.”
Makler said Edwards did take notes after his meeting with McKey but they reflect more of his “emotional response” to a conversation he probably shouldn’t have participated in.
The District Attorney’s Office said it won’t pursue perjury charges against Edwards but that his changing statements could raise potential concerns regarding his truthfulness and credibility if called to testify in future cases. The District Attorney’s Office plans to ask an outside prosecutor’s office to review Edwards’ changing statements to determine whether any cases he has handled as a deputy need to be dropped over concerns about his honesty, what’s called a Brady review.
As for Cuthbertson, prosecutors asked state police to investigate him for alleged false swearing.
The District Attorney’s Office contends Cuthbertson’s sworn statement veers from his interviews with the state Justice Department investigator or what he shared with sheriff’s officials when he made no mention that McKey had allegedly spoken of political ambitions.
Cuthbertson “was just trying to report everything that he knew at the time” in his Sept. 1 sworn statement, said his lawyer Jim David.
Cuthbertson isn’t a friend of Alden’s and stands by his statement about his conversations with McKey, David said.
The state police investigation hasn’t gone far as none of the officers involved have agreed to talk to investigators.
Thenell calls both the perjury immunity promise and the investigation of Cuthbertson part of “the D.A.’s scheme to prevent certain witnesses from testifying for the Defendant.”
District attorney’s officials responded that it seeks investigations when they learn of evidence of a potential crime.
The Sheriff’s Office removed Edwards from a special assignment on the agency’s Tactical Negotiations Team after his initial statements about McKey were filed in court.
But both Edwards and Cuthbertson remain in the Training Division.
Sheriff Pat Garrett, speaking last June outside the county commissioners' board room, said that his office's internal affairs investigators, trainers and use of force experts were involved in the determination that deputy Rian Alden committed no policy violations in his jail encounter with Albert Molina in 2018. "It wasn’t a rubberstamp,” Garrett said. “There was some spirited debate.” The sheriff called the matter then “a close call.” Maxine Bernstein | Staff
Cuthbertson isn’t training officers, sheriff’s officials said. He’s helping county IT services replace a sheriff’s use-of-force database.
He’s one of several staff members “pulling historical data for a thorough outside review of our office’s policies, procedures, standards, training, evaluation and accountability related to the use of force,” said Sgt. Danny DiPietro, a Sheriff’s Office spokesman.
Edwards works as the use-of-force training coordinator, part of a team of eight trainers, DiPietro said.
Asked if Sheriff Pat Garrett is concerned by Cuthbertson’s continued support of Alden’s use-of-force against Molina, DiPietro said he couldn’t comment “because this matter is an active prosecution and involves personnel matters.”
“We have faith,” he said, “in the justice system in Washington County.”
-- Maxine Bernstein
Email at mbernstein@oregonian.com; 503-221-8212
Follow on Twitter @maxoregonian
Article From & Read More ( The case of an Oregon sheriff's deputy accused of attacking a jail inmate gets uglier - OregonLive )https://ift.tt/3jzYnaC
Case
No comments:
Post a Comment