Hummel challenges Flaherty’s handling of Biedscheid case

Hummel contends sentence too light; Flaherty says Hummel lacks prosecutorial experience

By Shelby R. King / The Bulletin


Published Apr 20, 2014 at 12:01AM / Updated Apr 28, 2014 at 02:39PM

After spending several hours drinking at a local bar in 2011, Bret Biedscheid ran over a man who was pushing a bike across a street, killing him. Dodd Hook, while experiencing a diabetic episode in 2009, struck two cars, killing one person. Judy Swift, a woman with a medical condition that impaired her vision, ran a stop sign and T-boned another car in 2011, killing two passengers.

Each of the three defendants was convicted of different crimes and served varying amounts of jail time — from 55 days to one year. But the cases were similar: All three killed others while operating a motor vehicle with varying amounts of negligence, and all three were initially charged with criminally negligent homicide. And they all came through Deschutes County Circuit Court during District Attorney Patrick Flaherty’s first term.

John Hummel, who is challenging Flaherty to become Deschutes County’s next district attorney, has taken issue during the campaign with perceived inconsistencies in Flaherty’s charging practices.

In recent public forums Hummel brought up these cases in particular, contending money and influence got Biedscheid a lighter sentence than Dodd and Swift, who committed similar crimes. Flaherty argues Hummel lacks the insight of an attorney with prosecutorial experience and doesn’t know the specifics of the cases.

Biedscheid spent 55 days in jail, Hook was sentenced to a year and Swift served 121 days (see details of each case below).

Hummel said Flaherty should have aggressively pursued a criminally negligent homicide conviction against Biedscheid, and suggested charging Biedscheid with assault or hit-and-run would have been appropriate and would have resulted in a lengthier jail sentence.

“These are cases that have similar facts with significant differences in penalties,” Hummel said. “The drunk person is the most culpable and should have received the highest penalty.”

The DA’s office handled the Hook and Swift cases as it should have, Hummel said, with Hook pleading guilty to charges of criminally negligent homicide and Swift to second-degree manslaughter . But he said Biedscheid’s plea deal, which dismissed the criminally negligent homicide and instead only required a guilty plea to failing to perform the duties of a driver, was too light. He says he thinks Biedscheid should have pleaded guilty to criminally negligent homicide and served a 16- to 18-month sentence.

“I would have demanded a plea of guilty to criminally negligent homicide with a stipulation to this (16- to 18-month) sentence,” Hummel said. “If the defendant did not accept this offer, I would have taken the case to trial.”

Flaherty defended his choices and stood behind the plea agreements , saying Hummel’s assertion that the three defendants should have received similar sentences demonstrates “that he has no experience as a prosecutor.”

“Having never read the police reports, examined the forensic and medical evidence, interviewed witnesses, worked with detectives assigned to the case, considered the defendants’ history, attended court hearings or taken part in the settlement conferences that were held in each case, no prosecutor (or experienced defense lawyer) would ever venture an opinion about the relative equities of the jail sentences the court imposed,” Flaherty wrote in an email.

When Flaherty took Biedscheid’s case to grand jury, it indicted him on criminally negligent homicide but not on a DUII charge. Flaherty said the grand jury determined the evidence was insufficient to prove beyond a reasonable doubt that Biedscheid was under the influence of intoxicants when he hit Anthony “Tony” Martin on Northeast Third Street. He also said insisting on a conviction of criminally negligent homicide wouldn’t have increased his sentence.

Flaherty stands behind his decision to offer a plea deal, saying the advantages of offering a plea deal outweighed the possible benefits of taking the case to trial.

“The state always ‘loses’ something when we go to trial,” Flaherty wrote. “We lose public safety resources at every level; victims and civilian witnesses experience losses that range from psychological to financial; citizens are required to sacrifice their time and money serving as jurors; other cases destined for trial are delayed which sometimes means that justice is denied.”

Flaherty said experienced prosecutors recognize these risks and understand when, as with Biedscheid, it makes more sense to offer a plea deal.

Hummel also said charging Biedscheid with hit-and-run would have been a “slam dunk.”

“No case is a ‘slam dunk,’” Flaherty responded. “This is not basketball.”

Hummel disagrees.

“It’s guaranteed he would have won hit-and-run at trial, so there was no downside to trial,” Hummel said. “The upside is he might also have gotten a conviction on criminally negligent homicide.”

A conviction on the charge of criminally negligent homicide wouldn’t have automatically led to a stiffer jail sentence.

“The presumptive sentence for the failure to perform duties of a driver is identical to the criminally negligent homicide and we requested the presumptive sentence,” Flaherty said. “The judge imposed a downward departure sentence as he had the unfettered right to do.”

Hummel argues that to get a conviction on the criminally negligent homicide he would have taken the case to trial.

“He could have called as witnesses the bartender and the people who were out with Biedscheid that night,” Hummel said. “And he could have introduced the videotape evidence from the bar that showed Biedscheid drinking.”

The grand jury watched the video and heard testimony from three witnesses. It still determined it was not significant enough to prove “beyond a reasonable doubt” that Biedscheid was under the influence when he killed Martin.

“There was no blood alcohol evidence, no field sobriety tests and no admissions by the driver. Three eyewitnesses testified at grand jury. The grand jury assessed their credibility,” he said. “The grand jury heard expert testimony regarding blood alcohol based upon the number of drinks (the) defendant may have consumed.”

Minus a grand jury indictment for DUII, Hummel said Flaherty could have charged Biedscheid with fourth-degree assault, which is a misdemeanor and doesn’t require a grand jury indictment.

“If Patrick wants to blame grand jury by saying they tied his hands, he could have, on his own, charged fourth-degree assault, which is eligible for a maximum sentence of one year,” he said.

Flaherty said the prosecution asked for a longer sentence, but the length of time imposed is up to the judge.

“Every case is unique because every human being is unique and the facts of each case are unique,” Flaherty wrote. “Prosecutors understand this principle because we apply it every day in carrying out our mission to do justice. And justice requires paying close attention to the unique characteristics of each case when charging, negotiating, going to trial and requesting imposition of a particular sentence.”

— Reporter: 541-383-0376, sking@bendbulletin.com

Crime: Biedscheid, 41, in January 2011 was driving south on Third Street just north of Revere Avenue when he struck and killed Anthony “Tony” Martin as Martin was pushing his bicycle across the street. Biedscheid tapped his brakes briefly after striking Martin, then continued driving. Martin was pronounced dead at the scene. A few days later, Biedscheid’s attorney, Stephen Houze, contacted Bend Police to turn over Biedscheid’s damaged pickup. Houze later acknowledged Biedscheid had been drinking at the Black Horse Saloon prior to the crash, but said his client was not impaired. Biedscheid was originally charged with criminally negligent homicide, but prosecutors later agreed to dismiss that charge in exchange for Biedscheid agreeing to plead guilty to failure to perform the duties of a driver. He was not charged with DUII.

Sentence: Biedscheid served 55 days of his 90-day sentence, is on probation for three years following his August 2013 release, had his driver’s license suspended for five years and was ordered to complete 500 hours of community service.