Washington County district attorney, defense lawyer accused of proposing illegal order in state bar complaint

From The Oregonian, February 2, 2013

The Oregon State Bar accused Washington County’s district attorney and a defense attorney in a formal complaint this week of proposing a court order that sent a mentally ill man to the state hospital illegally.

Circuit Judge Thomas Kohl signed the “mental illness magistrate hold” in October 2011 for Donn Thomas Spinosa, who is schizophrenic and has twice been indicted in his ex-wife’s 1997 stabbing death.

At the time, District Attorney Bob Hermann called the order an unusual solution to avoid the release of a dangerous person who is not fit to stand trial.

The case came to the bar’s attention after retired Lane County Judge Jim Hargreaves filed a complaint against the attorneys in December 2011, saying the order did not exist within the law. Hargreaves learned of Spinosa’s case in The Oregonian.

Hargreaves’ complaint says Hermann, Kohl and defense attorney Robert Axford agreed to an “undeniably invalid order” to sidestep the law. Disability rights advocates said Spinosa should have been civilly committed to the state hospital, which he was after he returned to the hospital on Kohl’s order. Kohl vacated the order in May.

After investigation, the state bar decided to prosecute Hermann and Axford in September.

The state bar’s formal complaint against the pair says, “There was no non-frivolous basis under the law for such an Order, and the Accused knew there was no such basis.”

The order, according to the complaint, illegally committed Spinosa to custody “for an illegal indefinite period of time” and denied him protections afforded under state and federal law.

The complaint accuses both attorneys of the same two violations of professional conduct, including charges of unmeritorious legal position and conduct prejudicial to the administration of justice.

Responding to the formal complaint Friday, Hermann said in an e-mail, “We are glad to learn the specific allegations. We will be requesting a hearing as soon as practicable and most certainly look forward to the opportunity to respond and refute these claims.”

Axford did not respond to a message seeking comment.

State bar spokeswoman Kateri Walsh said Thursday that Hermann and Axford will both have a chance to respond to the complaint before the case moves forward. Neither a trial panel nor trial dates have yet been chosen, Walsh said.

In responses to Hargreaves’ complaint last year, both attorneys defended their work in Spinosa’s case.

Spinosa’s ex-wife, Kathleen T. Relay, of Aloha, died May 10, 1997. Police said Spinosa stabbed her 20 to 40 times because she wouldn’t give him money for video poker.