The Oregon Supreme Court has agreed to review a lower court’s decision regarding a Bend rape case that received national attention in 2012.
The decision in the case could ultimately lead to a retrial in Deschutes County. The high court will hear oral arguments from both sides Nov. 7.
Thomas Bray, 42, was convicted following a sexual encounter with Jennifer Bennett in February 2011. The two met on Match.com and then got drinks before walking back to Bray’s downtown Bend apartment. Bennett later told investigators that over a five-hour period, Bray raped, sodomized and assaulted her, leading to injuries to her jaw, eye, neck, shoulder, back and genitals.
The Bulletin maintained a policy of not identifying Bennett because she was the victim of a sex crime, until an Oct. 1, 2012, story in The Oregonian, where she identified herself, and a subsequent appearance on the “Today” TV program.
Bray appealed, claiming the prosecution erred in refusing to follow a court order to obtain Google search records for Bennett, and that the court erred in not granting a mistrial due to prosecutorial misconduct. The case was prosecuted by former Deschutes County District Attorney Patrick Flaherty and current Deputy District Attorney Brigid Turner.
The appeals court ruled that Turner’s and Flaherty’s conduct was questionable but fell short of misconduct. It also ordered that a Deschutes County judge review a clone of Bennett’s hard drive and determine if any evidence on the computer should have been brought into the trial.
An anonymous complaint filed with the Oregon State Bar seeks sanctions against Flaherty and Turner and uses the appeals court language as evidence. Bray himself has filed a lengthy addendum to the original bar complaint, seeking the same. The bar’s investigation into the conduct of both prosecutors is ongoing.
The Supreme Court has set aside an hour to hear oral arguments by Bray’s attorney, Kendra Matthews, as well as Jennifer Lloyd, who will argue on behalf of the state. Supreme Court spokesman Stephen Armitage said the court will then deliberate and issue a ruling. While he said each case is different, most decisions are issued within six months.
While the appeals process moves on, so does the bar investigation. On March 31, Oregon State Bar Assistant Disciplinary Counsel Theodore Reuter sent a letter to prosecutors requesting further information. The bar is looking into Flaherty’s and Turner’s refusal to comply with a court order forcing the prosecution to obtain Google search records for Bennett, to give to the defense. Flaherty and Turner questioned the court’s authority to issue such an order — a position the appeals court agreed with.
In addition, the bar complaint is looking at questions surrounding Judge A. Michael Adler’s recusal. Adler took over for Judge Stephen Tiktin upon his retirement, but then Adler recused himself after a distant relative of his was said to be a possible witness in the case. Tiktin then came out of retirement to oversee the trial.
The bar is also looking at differences in photographs of Bennett following the attack submitted by the defense and prosecution. The sets of photos were derived from the same digital files, but look substantially different. In the prosecution’s printed photos, bruises to Bennett’s face and neck are much darker.
In his response to Reuter, Flaherty states that he is no longer employed with the district attorney’s office and does not have much of the information Reuter requested. He said he doesn’t recall if Adler gave a reason for recusing himself and that the difference in the photos is likely due to the defense using a more sophisticated printer.
Flaherty did not return a request for comment for this story. One of Turner’s lawyers hired for the bar complaint, Calon Russell, declined to comment.
However, Russell and co-counsel Allison Martin Rhodes, both of Holland & Knight in Portland, filed a response on Turner’s behalf May 19. They argue while Turner did not comply with the court order, it shouldn’t have been ordered in the first place, and she was defending Bennett’s constitutional rights as a victim. They further argue that acquiring the information was more difficult than the defense or judge realized, “perhaps due to the court and defense counsel’s general lack of sophistication around the technology involved in their request.”
In response to a request for internal communication regarding the court order, Turner’s lawyers declined to hand that over, saying it is privileged information and could provide “strategic insight” to Bray’s defense team if a retrial is ordered.
As far as the photos, Turner’s lawyers state she was not involved in the printing of the exhibits, but denies any allegations that the prosecutors doctored the photos.
When asked about Adler’s recusal, Turner’s lawyers state Turner and Flaherty did broach the subject of one of his relatives being involved in the trial with Adler. A search of Bray’s emails turned up a reference to a distant relative of Adler’s with whom Bray claimed to have had consensual sex one time. Turner’s lawyers say this was not used to intimidate Adler into recusing himself, but rather to inform him of the possible circumstance and allow him to make a decision.
“Their decision at that time was to put Judge Adler on notice of the possibility, not tell him how to handle it,” the response reads.
— Reporter: 541-383-0376, firstname.lastname@example.org