A retired Lane County judge has filed ethics complaints against Washington County’s district attorney, a circuit court judge and a defense attorney, saying they sent a man to the state hospital on an order for which there is no authority.
Retired Judge Jim Hargreaves filed complaints with the state bar this week against District Attorney Bob Hermann and defense attorney Robert Axford. He has filed a complaint with the judicial fitness commission against Judge Thomas Kohl.
Kohl signed an order for a “mental illness magistrate hold” two months ago, supposedly sending Donn Thomas Spinosa, 58, to the state hospital indefinitely.
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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.
Hermann told Kohl that the state hospital had planned to release Spinosa last year in spite of these findings because it had provided all the services it could. State hospital officials, however, say they only discharge patients who have improved.
Hermann told Kohl that a permanent magistrate hold was necessary because of the “woeful inadequacy of Oregon law” regarding the civil commitment process.
Hermann has said that civil commitments are problematic for prosecutors because they remove a potentially dangerous offender from the criminal justice system.
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 said Hargreaves’ complaint was a “cruel irony” in a case where all parties – judge, prosecutor and defense attorney – agreed to a solution that they believed best protected the public and the defendant.
Arrested days after the May 10, 1997, homicide of Kathleen T. Relay, Spinosa was arrested and charged with stabbing her 20 to 40 times because, police said, she wouldn’t give him money for video poker. He was found unable to aid and assist in his defense and went to the state hospital for treatment.
State law says a defendant who is judged unfit to stand trial can be held for no more than three years to see if their mental state improves.
In 2000, Spinosa’s three years in state hospital care were up, his charges were dismissed and he was civilly committed to the state hospital. The civil commitment was renewed repeatedly until last year, when Hermann says the state hospital alerted him that it was considering discharging Spinosa.
Hermann refiled aggravated murder charges against Spinosa in October 2010, and Spinosa was again sent back to the state hospital. A year later, Kohl found that Spinosa was still unable to aid and assist in his trial.
That’s when Hermann and Spinosa’s attorney, Axford, submitted a joint motion to Kohl asking for a magistrate hold so that Spinosa would remain indefinitely at the state hospital, and the court would have to approve his release.
Hermann filed a memo outlining the case but it cited no law supporting the legality of a magistrate hold. Still, Kohl signed the order for the magistrate hold and dismissed Spinosa’s murder case. The judge’s order also cites no legal authority, but refers to Hermann’s memo.
Asked to cite the legal authority for the order, Hermann said that he, Axford and Kohl all believed the order was valid.
Axford declined to comment. Kohl did not return calls seeking comment.
The state bar has begun investigating the case.
Bob Joondeph, executive director of Disability Rights Oregon, said the advocacy group also launched an investigation after reading an Oregonian article about Spinosa’s case.
Joondeph said the organization wants to know why a judge would skip the civil commitment process and impose an order that doesn’t exist within the law.
“We’re trying to ascertain when everything happened and why,” he said, “in order to find out why a man would be left for eight months in a county jail who’s acutely psychotic without any care.”
Joondeph says Spinosa’s case seems to fall “squarely within the civil commitment law.”
Hargreaves and Joondeph say that Spinosa was civilly committed last month to keep him in the state hospital legally. The hospital says it can’t verify that because it won’t confirm whether any patient is at the hospital.
However, Nancy Griffith, program director of adult treatment services at the hospital, said the hospital only discharges someone from a civil commitment who has shown improvement and no longer meets the criteria for civil commitment.
That appears to contradict Hermann’s statement to Kohl that the state hospital was going to release Spinosa even though he was dangerous.
But Hermann insists that was the case and that Kohl’s order was designed to give the court some “watchdog abilities” so that “this guy isn’t kicked down the street like they were preparing to do before.”