Oregon State Bar to prosecute Washington County district attorney, defense attorney on ethics violations

Published by The Oregonian, September 27, 2012

The Oregon State Bar will prosecute Washington County’s district attorney and a defense attorney on ethics violations stemming from their handling of a mentally ill man’s aggravated murder case.

Kateri Walsh, a state bar spokeswoman, said the decision came Saturday when the State Professional Responsibility Board reviewed the bar’s investigation into the allegations against District Attorney Bob Hermann and defense attorney Robert Axford.

Retired Judge Jim Hargreaves filed complaints regarding the two attorneys with the state bar in December. He also filed a complaint with the judicial fitness commission against Judge Thomas Kohl.

READ – Ethics complaints filed against Washington County district attorney, judge and defense attorney

Kohl signed an order for a “mental illness magistrate hold” in October, supposedly sending Donn Thomas Spinosa, 59, to the state hospital indefinitely.

Twice accused in his ex-wife’s 1997 killing in Aloha, Spinosa has never been found mentally fit to stand trial. Doctors have found Spinosa, diagnosed with schizophrenia, unable to care for himself and dangerous to others.

In his complaint to the state bar, Hargreaves said the law does not allow for the magistrate hold.

“Such an order is entirely without legal foundation in Oregon and stripped Mr. Spinosa of all his rights and protections,” Hargreaves wrote in the complaint.

Hargreaves’ complaint says Hermann, Axford and Kohl agreed to an “undeniably invalid order” to sidestep the law.

Hermann and Axford both told the state bar they believed the order was valid and did not intentionally violate the law.

READ – Washington County district attorney, defense attorney respond to complaints of ethics violations, misconduct

The state hospital asked Kohl to dismiss the order, which he did in May. Spinosa remains in the state hospital under a civil commitment, last renewed in June.

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.

READ – The Incarceration of D.S. – An Investigative Report, by Disability Rights Oregon

At the end of that investigation in July, the advocacy group said in a report that Hermann, Axford and Kohl acted outside the law with the “mental illness magistrate hold.” The legislature makes law, the report said, 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.”

A three-person trial panel appointed by the Oregon Supreme Court will hear the bar’s case against Hermann and Axford, Walsh said.

READ – Jury finds man guilty of murdering Washington County judge’s daughter, March 26, 2009