DRO recommends legislation after investigating what happened to Donn Spinosa

From the Oregonian, July 23, 2012

Disability Rights Oregon on Friday concluded an investigation critical of the prosecution of a mentally ill Aloha man, twice charged in the 1997 slaying of his ex-wife.

READ – what happened to Donn Spinosa
READ – “The Incarceration of D.S. – An Investigative Report” from Disability Rights Oregon, July 2012

The investigation questioned how the schizophrenic man “came to be held in Washington County Jail for months without treatment and then was committed to the Oregon State Hospital without legal authority even though the legal means existed.”

The advocacy group investigated the case of Donn Thomas Spinosa, 58, who was first charged in the killing of Kathleen T. Relay in 1997. He was found unable to aid and assist in his own defense; his charges were dismissed and he was civilly committed to the Oregon State Hospital.

Spinosa’s charges were refiled in 2010 after Washington County District Attorney Bob Hermann learned that the state hospital planned to release him. A judge again found him unable to aid and assist last year and returned him to the hospital on an order that Disability Rights Oregon says was not legal.

Among other findings, the advocacy group says in its report that Hermann’s re-indictment of Spinosa was “inhumane and wasteful”; laws and resources assuring Spinosa’s appropriate treatment were not used; and the state hospital made decisions “without clear standards, accountability or understanding of the treatment options available in jail” that led to Spinosa returning to jail after 14 years in the hospital.

The report concludes that Spinosa’s “unnecessary transfers back and forth between the state hospital and jail left him without adequate mental health treatment for long periods of time, with little or no justification.”

Responding to the report, Hermann said in an email, “This advocacy group has a role in the system and certainly a right to express its opinions. … In addition, advocacy and safety for the victims impacted by this murder remain a priority.”

Last October, when Judge Thomas Kohl dismissed the aggravated murder case against Spinosa, he signed an order for a “mental illness magistrate hold,” supposedly sending Spinosa to the state hospital indefinitely.

The order elicited ethics complaints in December, filed by retired Lane County Judge Jim Hargreaves. In complaints to the state bar against Hermann and defense attorney Robert Axford, Hargreaves said the law does not allow for the magistrate hold. He also filed a complaint with the judicial fitness commission against Kohl.

The state hospital asked Kohl to dismiss the order, which he did in May. In June, Spinosa’s civil commitment was renewed.

Disability Rights Oregon launched an investigation last year after reading about Spinosa’s case in The Oregonian. Bob Joondeph, the group’s executive director, said in December the organization wanted to know why a judge would skip the civil commitment process and impose an order that doesn’t exist within the law.

The investigation report concludes that Hermann, Axford and Kohl acted outside the law with the “mental illness magistrate hold.” The legislature makes law, the report says, and in Spinosa’s case, it was the attorneys and judge who “essentially created a new law that allows for a person with mental illness to be detained without the elements of due process.”

The investigation report lists several recommendations to address the problems the group identified.

“Changes are in order to assure that citizens are not punished for having a severe mental illness,” Joondeph said in a statement.

Among those, the group recommends that patients who have been previously found unlikely to regain capacity to assist in their own defense should not be re-indicted without further evaluation to see if they have regained ability.

The also group recommends a change in the law to permit notification to authorities when a patient who could be re-charged with a crime is being released from the hospital. But the law should not violate the defendant’s right to keep personal health information protected, the report says.

The report, which refers to Spinosa as “D.S.,” says Hermann and jail staff violated his privacy rights by providing information regarding his mental health and behavior in the state hospital.

Hermann defended the way Spinosa’s case has been handled, saying in an email, “The aggravated murder of Kathleen Relay remains an open case. Donn Spinosa remains the only suspect. Law enforcement continues to perform its role by keeping a close eye on Mr. Spinosa’s situation and progress to ensure that the public remains safe as well as Mr. Spinosa himself. … To date the public and Mr. Spinosa have remained safe.”