Sunday, May 29, 2011

The trouble in Umatilla County: Oregon Department of Justice goes after a disgraced district attorney

As mano-a-mano matchups go, John Kroger vs. Dean Gushwa seemed a mismatch.
Kroger is Oregon's ambitious attorney general, a former assistant U.S. attorney and mob prosecutor, with 300 lawyers at his disposal.

Gushwa was district attorney in Umatilla County, whose train wreck of a personal life was thrown into public view last August after one of his girlfriends accused him of rape.

Kroger's people rolled into Pendleton, swiftly labeling Gushwa a drunken menace to society. The core of the Justice Department's case was that Gushwa used his position to intimidate female employees into having sex with him.

"The allegations were very serious," Kroger said. "I would characterize it as an extreme form of sexual harassment as well as intoxication in the workplace."

But after nine months, the case ended in May with a whimper. Gushwa agreed to resign and was found guilty of one misdemeanor -- official misconduct for an unauthorized $6 government discount on a hotel room.

The real losers in the case may be the citizens of Umatilla County.

They were burdened not only with an embarrassing sex scandal of a top public official, but also with a protracted Department of Justice presence in their prosecutor's office that cost taxpayers more than $437,000.

Senior county officials worry that the local DA's office suffered a lack of oversight due to the Justice Department's decision to install a rotating cast of supervisors rather than a single, full-time manager.

The Justice Department's stint in Pendleton reached a low point in January when Kroger's lieutenants mishandled a high-profile murder appeal so badly that a confessed killer serving life in prison walked free.

Dennis Doherty, a Umatilla County commissioner, feels the case continues a pattern in which the Justice Department launches an investigation with hardball tactics and lots of press releases only for the case to fizzle.

"They came in guns-a-blazing," said Doherty, a former county DA himself. "And then, jeez, the only thing they could get him on was getting a cut-rate motel room. Did they ever really have any evidence? The whole thing is pretty pitiful."

The rape charge

A 47-year-old clerk in the DA's office lit the match that sparked the Gushwa inferno. The woman, identified in court documents only as DW, reported that Gushwa, her boss and on-again off-again boyfriend, raped her.

He handcuffed her and brutally forced himself on her, she said.

But it wasn't until eight months later -- after another episode of rough sex in August -- that she finally reported the rape. DW had grown afraid of Gushwa, she told police, and had only continued to see him "because I was lonely." She was also incensed, she added, after learning that Gushwa was involved with Jennifer Roe, another employee of the DA's office.

After seeing Roe's car in front of his house, DW texted Gushwa: "We'll see what the governor has to say about this."

It's not clear whether she ever contacted then-Gov. Ted Kulongoski. But she did call an Oregon State Police trooper, who arranged her interview with Pendleton police.

Some people who knew them both questioned DW's motives. But police took the charge seriously, said Chief Stuart Roberts. They called in the Justice Department, common in cases where a local law enforcement official is accused.

Gushwa agreed to go on paid leave for the duration of the investigation.

Poor decisions

There are few secrets in a small town. And among Pendleton's small legal community, Gushwa's hard-living, hard-partying ways were common knowledge.

Newly divorced after years of marriage, Gushwa was enthusiastically single again. He was involved with three employees of his office, some at the same time.

Gushwa was appointed DA of the county in 2006 after eight years as a deputy and was elected to the post in 2008.

"He was a very engaged, very methodical, very skilled DA," said Roberts, police chief.

Doherty, the county commissioner, never heard a single complaint. "No judge, no employee, nobody else ever came to me -- and I was liaison to the DA's office," he said.

Gushwa admits to some poor decisions in his personal life. "My conduct as far as having relations with employees was stupid," he said. "I've apologized for that."

But all of those "relations" were consensual, he insists.

The Justice Department disagreed.

It didn't charge him with rape, sexual abuse, unlawful penetration, sodomy or any other felonies associated with forcible sex. "Those are very difficult cases to win when there's a prior consensual sexual relationship," Kroger said.

Rather, the state charged Gushwa with five counts of official misconduct, specifically that he used his office to intimidate female employees into giving him "sexual gratification."

"Defendant cultivated a culture wherein he made it very clear to his employees that he was the ultimate authority," Justice Department attorneys wrote in court documents. Gushwa targeted "women who needed their jobs, relied on their paychecks and were either dealing with personal problems or generally vulnerable in their life's position."

State lawyers also cited Gushwa's "drinking problem," stating numerous examples of other people smelling alcohol on his breath or hearing him slur his words at evening crime scenes.

Gushwa denies a drinking problem and says having a few cocktails after work is not a crime.

In early November, Sean Riddell, the Justice Department's top criminal prosecutor, traveled to Pendleton and confronted Gushwa. The two men have much in common -- both career prosecutors, ex-military. With their matching bald pates, they even somewhat looked alike. But this was no collegial meeting.

Riddell demanded Gushwa resign and plead guilty to at least one count. Gushwa had offered to step aside earlier, but now, in the face of Riddell's hard-nosed approach, he refused, maintaining that he never forced anyone to do anything.

It was a highly unorthodox meeting. Riddell was not the prosecutor of Gushwa’s case. Riddell contacted Gushwa directly, rather than going through his attorney, according to Gushwa and his lawyer, David Gallagher. Gushwa recalls a meeting took place Nov. 5, four days before the state filed charges against him.

When Gushwa declined to resign, Riddell vowed that a Justice Department “freight train” would crush him, Gushwa and Gallaher recall.

The Justice Department later upped the ante with 11 counts of contempt of court. It accused Gushwa of violating a court order prohibiting contact with any employee of the DA's office by calling, texting and getting together with Roe. Their relationship had grown more serious and they are now engaged.

On Nov. 15, two Pendleton cops showed up at Gushwa's doorstep, arrested and hauled him to the county jail where he was released after a couple hours. Justice Department lawyers, who heard Gushwa intended to return to the office, also a violation of the court order, requested the arrest.

"It was just a cheap little tactic, pure intimidation," Gushwa said.

Murder retrial bungled

When the Justice Department took over the DA's office, it inherited one of Umatilla County's most notorious murder cases.

On April 6, 2001, Kathleen Blankenship shot her husband, Walt Blankenship, first as he lay in bed and twice more as he attempted to call 9-1-1. She confessed, and a Umatilla County jury found her guilty of murder in 2003. Gushwa, then a deputy DA, worked on the case in a supporting role and still considers it one of his biggest wins. She was sentenced to life in prison.

In 2009, Blankenship won a retrial after convincing a judge she received inadequate legal representation in the first trial.

Blankenship's new attorney, Jack Morris of Hood River, was highly competent and had two doctor's opinions that Blankenship suffered from extreme emotional disturbance at the time she shot her husband. If the jury believed his experts, they could reduce the charge against her from murder to manslaughter.

Gushwa needed to rebut that evaluation and persuaded a psychologist in Buffalo, N.Y., to assess Blankenship. Then Gushwa was sidelined by the sex charges.

Kroger's Justice Department took over prosecution.

Inexplicably, the state failed to get the New York psychologist or any other on board. With the new trial set for February, Justice Department attorney Rachel Bridges asked for more time, arguing that she was swamped with other big cases. She also accused staffers of the Umatilla County DA's office of failing to support her.

Garry Reynolds, a long-time Circuit Court judge who had heard the first Blankenship trial, had already granted the state one continuance. By January, he was out of patience and rejected the request for another.

To the shock of Pendleton's legal community, the Justice Department then agreed to let Blankenship plead guilty to manslaughter.

Reynolds was livid.

"I am completely dismayed by the way this case has gone forward," the judge said from the bench. "It may have come to this place eventually anyway. ... I do not feel that the state of Oregon's interests were protected. ... That it was resolved in the matter that it was resolved is not a service to this county."

Blankenship, originally sentenced to life, got out of prison April 7.

In a letter in the East Oregonian, Umatilla County Senior Circuit Judge Richard Courson said: "It is evident that the "plea deal" was an excuse to try and conclude a "botched prosecution."

Kroger conceded that his department made a "mistake" when it did not get its own psychiatric evaluation of Blankenship. "I'm unhappy with our handling of that case," he said.

Mary Kligel, the victim's sister, watched with her parents in disbelief. "They dropped the ball," Kligel said. "My parents can't move on. I can't move on."

Kligel has little sympathy for Gushwa's own legal predicament. But she says Kathleen Blankenship would still be in prison if he had remained in charge of the case.

"Deep in our hearts, we know that it would have been different if Dean would have handled it."

Slap on the wrist

The more William Perkinson looked at the details of his client Gushwa's case, the more surprised he was that his former Lewis & Clark Law School professor John Kroger would push a case so full of holes.

He saw no evidence of Gushwa threatening his female colleagues to have sex or to remain silent after the fact. Likewise, no evidence of Gushwa returning preferential treatment. "The Justice Department did not hesitate to announce to the press that they were investigating my client for sex crimes," Perkinson said. "They went public long before they had concluded their investigation into the credibility of their star witness. They found themselves in the untenable position of having made the accusations without any good evidence against my client."

Weeks before the case was to come to trial, however, the state stunned Gushwa and Perkinson when it suggested a settlement: drop all the sex-related charges and deal solely with the hotel discount.

And Gushwa must resign.

He accepted. "I felt like they'd already destroyed my effectiveness as DA anyway," he said.

Gushwa was found guilty of the one misdemeanor count. He agreed to quit and the judge put him on probation for three years, during which he can't hold public office.

Kroger denied that settling and dropping the sex-related charges reflected a weak case. It was pragmatic to save money and time and spare the victims a potentially traumatic trial.

"If we had proceeded to trial, we would have reached the same result -- no jail and three years probation," Kroger said.

Gushwa's resignation becomes effective May 31. The Justice Department will remain in control of the Umatilla County DA's office until Gov. John Kitzhaber appoints a new DA.

Roberts, the Pendleton police chief, says the county is better off with Gushwa out. The former DA's personal issues had divided his staff and were beginning to affect his effectiveness, he said.

Kara Davis, a Pendleton public defender, said the Justice Department's case against Gushwa was a classic example of prosecutor over-reach.

"There wasn't anyone who thought (Gushwa) was a choirboy," she said. "It might be unseemly for a prosecutor to act that way. But my feeling is, whether he stays or goes is a decision for us, the people of Umatilla County, to make."

County Commissioner Doherty said he's concerned about the money the state spent and what it got in return. The Justice Department says it spent $148,978 prosecuting Gushwa and $221,957 running the Umatilla County DA's office. Taxpayers also paid Gushwa's salary while he was on leave for nine months, pushing the total tab beyond $430,000.

"It's important to remember that Dean offered to resign last fall, which would have saved us all a lot of money and stress," Doherty said. "But the state had to have its pound of flesh."

By Jeff Manning, The Oregonian



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