Juvenile Crimes - Chapter 28

Time to Party?

Coos Bay, Oregon, April 1, 1996, continued…

The timing of my move from Coquille back to Coos Bay allowed Selena to help me find the basement apartment - and to help welcome me into it! I had acquired my brother’s old waterbed that had been sitting around in storage after he moved in with his fiancé and her children (he was to get married in the summer). We didn’t wait for the water to warm up to “initiate” the bedroom - our new-love excitement kept us constantly getting intimate, and the floor was just fine! But we happily made awkward use of the ‘70’s antique waterbed when it did finally heat up, though it took some time and practice to get used to the waves…

At work, word soon came down that relief was on the way! The case flow had been extreme because we were still one attorney short in the busiest court, District Court. While I was trying cases and working my ass off, Peter had been busy finding our new hire. Her name was “Gwen” (as I said I’d called her in Chapter 1). She apparently had a great reputation. How or why, I did not know and never found out, but the office was buzzing with delight at her future arrival. She agreed to start right away in mid-April. Although I had to spend some time training her, I should be feeling less pressure from having fewer misdemeanor trials within a few weeks.

I met her for the first time at the going away party for Kevin, which had been postponed until then. Gwen was invited, of course, as it coincidentally happened on the weekend that she moved to Coos Bay. I was first surprised to find Chuck in attendance, too. It was held in his old loft apartment above the bar in downtown Coos Bay (I never really understood how that happened, either). It was huge and his old roommate accommodating. What also surprised me was that Gwen seemed to know everybody (except me), and they treated her like the party was for her. The booze was flowing for everybody but me, which compounded the weirdness of being at Kevin’s goodbye party. I brought a six-pack of near-beers just to have something in hand and keep the drinking questions at bay. It was nice to have been invited but it wasn’t all that fun – it made me insecure and feeling scrutinized to be the only non-drinker amongst these “professionals” now partying. The reaction from Gwen upon meeting me told me that she had heard something about me already. She was enthusiastic and friendly from the start, but…cautious.

At every party I had been to with law students or young lawyers that included cops – and I’d been to quite a few – the buzzed law students/young lawyers wanted a cop to do DUII field sobriety tests on them to see how drunk they were. Chloe was the silly clown pushing for it this time. Apparently, she thought she was messed up after her three wine coolers. Now, as it would happen with young female law students/lawyers, they tended to ask to the better looking single male cops to do the tests. It became a stupid fucking flirt-game, like stumbling on the walk-and-turn (“catch me!”) but particularly when it came to the horizontal gaze nystagmus test (“follow the pen” eye test resulting in deep eye contact). Chloe found her willing participating officer and it got nauseating for a sober man, so I excused myself and left early.

Budd O’Connell and I were in frequent contact with each other as we navigated through our mutual nightmare of a case. We eventually figured out what we had to do legally - Freddy’s State psych evaluation essentially laid it out for us. As the report clearly presented, Freddy Nelson had a mental disease or defect. The serious question that remained and could end up being the only genuine issue for trial, was whether or not Freddy had the mental capacity to be held criminally liable. If we accepted the opinion of the State’s shrink, Freddy lacked that mental capacity. Should we go to trial, the best “win” Budd could possibly achieve is a “guilty but insane” verdict, thereby denying the State (me) the ability to put Freddy in adult jail under Measure 11, as required by the law. The best “win” I could achieve would be to show at trial that Freddy was mentally competent enough to appreciate the wrongfulness of his actions and was therefore guilty as an adult, to be punished as an adult and go to the State penitentiary.  Contrary to what some of my co-workers may have thought of me, I was not a monster looking to kill this kid for a conviction. And why would I want to put the poor child victim, and his mother, through re-living the trauma by going to a trial that includes the possibility of harsh cross-examination?

Budd and I both gave up any pretense of trying to get a personal “win” and worked hard to find a solution. As repeated in the psych eval, pursuant to ORS 161.295, a person may be found guilty except for insanity if “as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of the law.” We decided that the guilty but insane verdict was the best overall option, but we had to figure out how to get there with the Court onboard. A “guilty but for insanity” verdict would mean that Freddy would be sentenced to the supervision and control of the Oregon State Psychiatric Security Review Board for the length of the sentence he would get without “insanity” being a factor in his guilt for the crime. In other words, ten years per guilty count, consecutive. They could put him in the nuthouse and hold him there for the full sentence if the Board so chose, or they could release him in the community with various levels of “supervision,” …or none at all.

I wasn’t satisfied with what that meant for protecting both the defendant (from his own family perps) and the community at large. Freddy was a pedophile, and I didn’t want him running free in the streets, unsupervised ever, or worse. Budd, for his part, did not want to see Freddy locked up in the State nuthouse, either. He could end up as a sex toy for psychopaths up there. Even if he didn’t, it just wasn’t the appropriate setting for Freddy or the right fix for our problems.

We needed a solution that didn’t appear available in the unique circumstances of a Measure 11 case with mandatory adult prison time for a 15-year-old retarded child molester with massive birth defects and an expected short life span.

The date for our status conference on Freddy’s case approached quickly as we both scrambled to reach out to every resource we could think of – social workers, shrinks, probation departments, attorneys, etc. I was scrambling with all my other job duties, too, caught between felony and misdemeanor courts while training Gwen and managing the rest of my caseload. It got right down to the wire, when Budd came to the rescue, all the way. The morning before our hearing with King Henry, Budd called me with the best news I’d heard since passing the bar exam.

“I found it!” Budd exclaimed with obvious relief.

“What? What do you got for us?” I answered eagerly.