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DA takes on rape case judge

— The day after Wasco County Circuit Judge Janet Stauffer exonerated a teenage rape suspect last week of all charges (, Wasco County District Attorney Eric Nisley began taking steps to stop her from hearing any new criminal matters from his office.

“I’ve never filed an affidavit (of prejudice) against any judge and I never in my life thought I would,” he said.

In more than 55 motions filed to-date with the court, involving 41 defendants, Nisley writes the state “has the good faith belief that it cannot have a fair and impartial trial or hearing before the judge.” He denies his actions are “payback” for Stauffer’s Aug. 27 ruling that freed a youth accused last year of raping and sodomizing a girlfriend when he was 17 and she was 15.

“This is not about outcomes or results,” he said. “Fairness is a process and I think a judge, above all people, has to look higher than him or herself to the perception people will have of the process. Because if people don’t trust the process, the system breaks down.”

Judge Speaks Out

Nisley’s bid to first have Stauffer removed from overseeing the trial — denied by the state in July — and then seeking to cut her off from hearing future cases has drawn fire from Paul Crowley, presiding judge for the Seventh Judicial District, which encompasses Wasco, Hood River, Wheeler, Sherman and Gilliam counties.

“The citizens of Wasco County overwhelmingly elected Judge Stauffer. They did not elect Mr. Nisley to run the court,” stated Crowley in a written statement issued Aug. 30. “Mr. Nisley’s actions challenging Judge Stauffer are unwarranted. Judge (John) Wolf is unable to hear any criminal or juvenile cases since his wife [Chief Deputy District Attorney Leslie Wolf] works for Mr. Nisley. The combination of the two is devastating to the criminal justice system. At this point, Wasco County citizens are being denied having all new criminal and juvenile cases decided by a resident judge. To say that these actions are not in retaliation of Judge Stauffer’s decision in a recent criminal case strains credibility.”

Crowley said the court attempted reconciliatory steps when Nisley first registered complaints about Stauffer in April. He said in May a sitting Supreme Court justice and a retired senior judge were brought in to mediate differences between the court and prosecutor’s office.

“Judge Stauffer’s response has been to reach out to colleagues to benefit from their experience and wisdom. The district attorney’s response is to pick up his ball and try to bring the entire justice system to a halt,” said Crowley. “This will either come to an end or be challenged in court. In the meantime, justice will be delayed as the direct result of Mr. Nisley’s inability to accept boundaries and to understand that he is not in charge of the court.”

DA’s Argument

Nisley said the court failed to follow through on a mediated plan to hold at least quarterly meetings of the Criminal Justice Advisory Committee, which also includes prosecutors, court officials, juvenile authorities and defense attorneys. He said two meetings have been held to date in 2013 and court officials cancelled the last two scheduled forums.

“I don’t want to do this, I just don’t see that I have a choice,” he said. “I don’t disrespect Judge Stauffer, I think she’s a super nice person. I feel really horrible about doing this. It’s not something that I wanted to do.”

Crowley said the August meeting of the committee was cancelled because nothing of substance was put on the agenda. He said the one suggestion for discussion was having the sound system improved in the courtroom, which was something that could be addressed by county employees. He said the September meeting was cancelled because Nisley had begun filing motions against Stauffer, which nullified the purpose of the gatherings.

“I’m feeling really troubled that we went to a lot of steps to work this out and DA Nisley has decided to play by his own rules,” said Crowley.

Digging In

Stauffer said Nisley’s actions are not going to force her off the bench because she, like he, has been elected to serve the people of Wasco County.

“The bullying tactics of DA Nisley against me personally, and against the judiciary in general, further cripple our already burdened criminal justice system in Wasco County,” she said. “Since I was elected judge I have worked diligently to preserve the autonomy of the court. By filing affidavits of prejudice, District Attorney Nisley has figured out a way that he, alone, can manipulate and control the Wasco County criminal justice system. For all concerned, the effect is unreasonable, costly and unfair, especially to victims and to those accused of crimes.”

Nisley said that he has no plans to alter course at this point. State law does not allow a judge to be replaced once court proceedings have started — one of the reasons he lost his bid to remove Stauffer from hearing the local rape case. So, he has to file a motion to request that she not oversee the cases originating in his office every time a new matter emerges.

Because John Wolf cannot hear criminal matters in Wasco County, Stauffer has been overseeing the majority of cases involving major crimes. Crowley and Judge John Olson travel from Hood River to The Dalles the first two weeks of the month to help out with local matters and Wolf takes the bench in Hood River during their absence.

Crowley said the court will probably challenge Nisley’s intent in filing the motions against Stauffer if the practice continues after Crowley returns from vacation next week. He said the affidavits were put in place to have judges taken off the bench when there was a conflict of interest that they would not declare — not to be used as a “blanket approach” to denying a judge his or her proper role.

Meanwhile, Sherry Smith, trial court administrator for the Seventh Judicial District, said there are going to be some delays in proceedings until the issue is worked out.

“The recent actions of the district attorney’s office have had a profound negative impact on the daily operations of the Wasco County Circuit Court,” she said. “The additional work load created by this action directly affects the timeliness in which all court documents are processed, requires the court to hold additional court proceedings, increases judiciary time and workload and will negatively impact crime victims.”

Point of Contention

Nisley said it was not Stauffer’s decision last week that the state had not proved its case against the rape suspect “beyond a reasonable doubt” that spurred him to action. It was her decision to grant the teen’s request to waive a jury trial and render the verdict herself.

“The minute she granted the waiver, I was done,” he said. “As I stated in my affidavit, I didn’t think Judge Stauffer would be fair. I knew the verdict was already decided before the trial started.”

He said with a career as a prosecutor since 1988, he has lost many trials, motions and hearings that he did not think should have been lost.

“That is the nature of an adversarial system and we deal with that. This situation is different,” he said.

He said a statement Stauffer made in court at a hearing in July 2012 to decide whether the teen would be released pending trial following his arrest showed her bias against the state. She said “the investigation in this matter appears to have been missing something,” which Nisley described as “offensive” because “it suggests she perceived our investigation as sloppy and incompetent.”

He said at another hearing on April 12, 2013, Stauffer ordered the defendant’s release from jail after he violated a court directive not to talk to underage females and then “announced she did not think the state was likely to prevail on appeal or at trial on this case or on the new case (the girl came forward with more allegations after starting counseling) filed against this defendant.”

DA denied

In July, Multnomah County Judge John Wittmayer denied Nisley’s request to have Stauffer taken off the bench for the rape trial. He concluded that the judge was acting in good faith and her July comment about the state’s case did not include an opinion about either the guilt or innocence of the defendant.

“It is merely a comment on what appeared to the judge at that point to be the status of the state’s investigation based on the limited information available to the judge at that time,” wrote Wittmayer in his conclusion. “While such a statement might arguably play no part in any ruling, especially a pretrial release decision, it does not establish that Judge Stauffer has actual bias or that she appears to have bias in this case.”

He said Stauffer’s April statement was a “most unfortunate expression” of opinion on limited information – without hearing all the evidence one would hear at trial – but did not, in his view, establish either actual bias or the appearance of bias.

Summing Up

Stauffer said judges are allowed by law to consider the “character and strength of evidence” when fixing bail, so her comments on the case were not out of line. She said every defendant has a constitutional right to a jury trial, but under the Oregon Constitution but, “an accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone.” She said the judge must discern if the defendant’s waiver request was “knowingly, intelligently and voluntarily made.” Also to be taken into consideration is whether the waiver will speed up the trial process, improve the judicial economy, such as saving jury pay, and the preference of the prosecutor.

By acting as judge and jury, Stauffer said both of the young people in the case were also spared the embarrassment of having more of their sexual messages read aloud in court. She was able to review about 250 pages of information on her own instead of the defense attorney asking the jury to examine passages in his defense of the boy.

Nisley said there is no recourse for a disagreement with any major decision made by the judge, so he has filed motions to disqualify Stauffer from hearing future cases to prevent further disputes.

He said the problems began with the judge shortly after she took the bench in 2010. One of the early points of contention was her refusal to sign a warrant for the arrests of people who have failed to return videos to a local rental store. Stauffer said her career as an attorney included time in the field of collections, so she initially thought the matter was civil in nature and not criminal. Once she was apprised as a new judge of the law, Stauffer said every warrant of that nature brought forward by Nisley has been signed.


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