Washington County District Attorney, Defense Attorney Respond to Complaints of Ethics Violations, Misconduct

Emily E. Smith, The Oregonian, Wednesday, January 25, 2012

Donn Thomas Spinosa

Donn Thomas Spinosa

Washington County District Attorney Bob Hermann and defense attorney Robert Axford have responded to the state bar regarding ethics complaints, which say they sent a man to the state hospital on a legally invalid order.

Responding to the complaints filed last month by retired Lane County Judge Jim Hargreaves, the attorneys defended their work in the aggravated murder case of Donn Thomas Spinosa.

Judge Thomas Kohl signed an order for a “mental illness magistrate hold” in October last year, supposedly sending Spinosa, 58, to the state hospital indefinitely.

Twice accused in his ex-wife’s 1997 killing, 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.

Hargreaves said in his complaint 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 also filed a complaint last month with the Commission on Judicial Fitness and Disability against Kohl.

ReadPrevious coverage from the Oregonian
ReadJim Hargreaves’ complaint
ReadBob Hermann’s response
ReadRobert Axford’s response

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

In a letter to the state bar Friday, Hermann said, “Quite simply I vigorously deny I was involved in taking a position that was frivolous; that I deceived the tribunal (judge) by not disclosing contrary legal authority; that my actions were prejudicial to the administration of justice; or that I assisted a judge in violating the law.”

Before the order was signed, Hermann told Kohl a permanent magistrate hold was necessary because of the civil commitment process was not enough to keep Spinosa in custody.

In his response to the state bar, Hermann says he received a letter from the state hospital on Aug. 26, 2010, saying Spinosa’s civil commitment would not be renewed and he had “reached maximum benefit of treatment in the hospital and is ready to be discharged.”

In anticipation of Spinosa’s discharge, he said, Hermann refiled charges of aggravated murder, for which there is no statute of limitations. Detectives arrested Spinosa on Oct. 1, 2010, the day his civil commitment expired, Hermann wrote.

Hermann explained to the state bar that he first heard of a magistrate mental illness hold “as a viable legal option” at a Pacific University forum on mental health issues in October last year. Days later, Axford pitched the idea of such an order to resolve Spinosa’s case, Hermann wrote.

“Mr. Axford further advised the parties, I believe on the record, that the mental health staff ‘expert’ in his office had been exploring the concept of the magistrate hold and had even run it by some judges who thought it was a legitimate option,” Hermann wrote.

In Axford’s Jan. 6 response to the state bar, he says fought to protect Spinosa from future reindictment.

“The gravamen of the dispute, I believe, is that I somehow restricted Mr. Spinosa’s liberty interests when my intent was to protect him from future harm that would come if the process were to be repeated.”

Dismissing the aggravated murder charge was the main goal for the defense “to protect Mr. Spinosa from a potential death sentence,” Axford wrote.

He hoped to return Spinosa to the state hospital, he said, where the symptoms of his mental illness seemed to improve.

“To see Mr. Spinosa decompensate in the jail like I did was heartbreaking,” Axford wrote. “He wasn’t eating regularly, lost a lot of weight, rarely showered or brushed his teeth; he wasn’t taking any medications and was essentially being stored in a one-man cell for virtually the whole time.”

The Client Assistance Office of the State Bar conducts an initial review of all complaints. On Wednesday, the State Bar notified Hermann and Axford that the CAO found “sufficient evidence to support a reasonable belief that misconduct may have occurred” and referred the matter to Disciplinary Counsel’s Office for further investigation.