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Flood watch issued December 20, 2014

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Judge sides with DA in arson case

Wasco County Circuit Judge Janet Stauffer ruled Monday against a defense attorney’s request that several crime scenes in Tygh Valley be preserved until his investigator looked them over.

David Susens of Morris Smith Starns and Sullivan, a gorge law firm, is the attorney for defendant Corey Allen Chuck, 21, of Tygh Valley. Chuck, who is lodged in the regional jail on a $37,500 cash bail, has been accused by Wasco County District Attorney Eric Nisley of first-degree arson at a residence on North Eagle Point Road in Tygh Valley. He also faces prosecution for first-degree burglary with the intent of criminal mischief.

In addition, he has been charged with illegally entering another dwelling on North Eagle Point and one on North Sentosa Road to engage in theft.

Chuck is also facing penalties for reportedly breaking into a Frontage Road residence for the purpose of criminal mischief.

According to his indictment, Chuck was found to be in possession of stolen brewing supplies and ingredients at the time of his March 2 arrest, the same day that the fire occurred.

Susens asked Stauffer last week to stop activity at these sites until they had been visited by his forensic expert.

He also wanted the judge to direct law enforcement officials and the state fire marshal to turn over “fragmentary” notes taken during their respective investigations.

“It is our hope to be able to conduct an

independent investigation as to the cause of this fire,” he said.

Firefighters have determined the blaze that destroyed the home was human-caused but Susens argued that it was vital to his case to review every potential piece of evidence.

“I think this case, and maybe arson cases in general, present special circumstances that give the court more leeway,” he said.

Nisley countered that all evidence of value — both to prepare his case and aid the defense — had already been collected. He told Stauffer March 20 that it was his obligation to not only seek justice for victims but protect the constitutional rights of a defendant.

“If we don’t provide evidence to the defense, we don’t get to use it in the prosecution,” he said.

He said the court did not have authority to restrain victims from use of their property for an indefinite period of time.

“These poor people who had their house burned, or broken into and damaged, are not parties to this criminal case,” he said. “If they can’t fix or restore their property, it’s an affront to their rights.”

If Susen’s motion were granted, Nisley said the victims would not be able to move forward with their lives.

He said the issue involving notes from a crime scene has already been litigated at the state and federal levels.

As an example, Nisley outlined a 1977 case in Oregon involving the arrest of a drunk driver.

The officer recorded his observations of the defendant in abbreviated form in pencil on the back of his traffic citation booklet. He later wrote a report from those notes and then erased them.

Although the defense won a challenge in lower court against that action, the court of appeals later determined that the officer was in the right.

“Requiring preservation and availability of fragmentary notes intended only as a touchstone for memory would be more likely to discourage police officers from taking notes, with a consequent reduction in accuracy, than to promote the statutory goals,” wrote the appellant judges in their decision.

“Furthermore, it would be unfair and misleading to allow cross examination of a witness based on fragmentary or cryptic notes which were never intended to express a complete statement.”

Nisley told Stauffer the 9th Circuit Court, which has jurisdiction over Oregon and eight other states, had rendered the same opinion after hearing a 1976 appeal involving similar issues.

Susens countered that the local court could determine the extent that evidence should be transferred in the Chuck case. He said it was important to ensure that nothing had been omitted which could clear his client of wrongdoing or impeach a witness that Nisley intends to call at a trial.

“Victim’s rights don’t restrict a defendant’s rights,” he said.

He also cited numerous cases dating back as far back as 1976 to show that precedent existed for his request. He said the legislature had passed a law a little more than two months ago to expand the rights of people who had been accused of a crime.

“The court’s issuance of an order would protect defendant’s rights by potentially preventing the destruction or modification of important physical or documentary evidence whether accidental, negligent or otherwise,” wrote Susens in a legal brief.

Nisley said any move by state officials on behalf of suspects still had to adhere to the boundaries set out by existing law.

He said Susens had failed to demonstrate where the court was given authority to preserve evidence in a way that was harmful to victims.

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