A Portland defense attorney and former elected prosecutor stunned a Deschutes County courtroom Wednesday when he resigned to protest a judge’s order and left the courthouse, leaving his client alone at the defendant’s table.
Scott Upham is representing defendant Dylan Todd Sullivan, who stands accused of misconduct with minor students he coached while he was a staff member at La Pine High School.
To date, Upham has filed numerous motions and records requests with the various public agencies involved in the case against Sullivan, which is scheduled to go to trial April 18.
Recently, Upham subpoenaed six local officials, including the district attorney, to testify at trial. Wednesday morning’s hearing was to consider motions to quash those subpoenas, and in attendance were the subpoena subjects themselves, and their respective counsels.
The hearing quickly headed south, with Upham arguing with Judge Randy Miller about the judge’s qualifications to hear the case. Upham said if Miller remained, he would “resign.”
Miller declined and called a recess to research how to proceed. During the break, an agitated Upham left the courthouse and walked out onto the streets of downtown Bend. After the recess, the judge engaged in a brief back-and-forth with the defendant.
“You don’t have any idea where he went?” the judge asked.
“I don’t,” Sullivan said. “I think he went outside.”
“Is he sitting outside, or did he leave?” Miller asked, before addressing the entire courtroom. “Does anyone have a definitive answer to that question?”
No one answered, and Miller said, “My assumption is, and I think it’s a fair one, that he’s decided not to participate today. And that’s at his own peril.”
Dylan Sullivan worked as a substitute teacher and basketball coach at La Pine High School from 2013 to 2014, when he’s alleged to have attempted to persuade two teenage girls to engage in sexual conduct for a photograph. Police also say he “made out” with one of the 16-year-old students in a hotel room during a school sports trip, according to a court document submitted by Upham.
He was living in Lake County and working in a similar position at the time of his arrest in April. Since being retained by Sullivan, Upham has filed numerous motions on his behalf.
The sum of Upham’s filings asserts a broad conspiracy by Oregon law enforcement officials to fabricate and withhold evidence in Sullivan’s case.
“For more than eight months the prosecutor has received many requests to obey (his) discovery obligations,” Upham wrote in a January motion filed in Deschutes County Circuit Court. “However, the prosecutor has decided many times to disobey his duties.”
District Attorney John Hummel was among those present at Wednesday’s hearing. He and two of his deputy district attorneys were subpoenaed to testify in Sullivan’s upcoming trial. Also called to testify were officers with OSP and the Deschutes County Sheriff’s Office.
There is now a range of possible outcomes for Upham, according to the Oregon State Bar’s rules of conduct.
Miller could file a complaint to the bar stating Upham abandoned his client’s cause and he could be reprimanded or suspended. A local hearing may also be held to determine if Upham will be held in contempt of court, either civilly or criminally.
The Oregon Rules of Professional Conduct require defense attorneys to provide their clients competent representation with the “legal knowledge, skill, thoroughness and preparedness reasonably necessary.” And when lawyers have concerns for a fellow attorney’s competency, they have an obligation under the rules to formally or informally report it.
Upham, 72, was Washington County’s district attorney for approximately 20 years before becoming a defense attorney in private practice. He’s listed online as a Portland resident.
He was issued his law license in Oregon in 1972, and has received no formal disciplinary actions, according to the Oregon bar.
Last year, however, a tech executive filed a complaint with the state bar alleging Upham attempted to extort him, made frivolous legal arguments and harassed him by filing multiple lawsuits with similar allegations. The complaint was dismissed for lack of evidence.
On Wednesday, Miller said he’d take some time to research the relevant laws before making a determination.
“I want to think about what to do in this case given what I saw this morning, which was, for the record, odd,” he said.
— Reporter: 541-383-0325, firstname.lastname@example.org