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Cylvia Hayes has claimed her constitutional Fifth Amendment right against self-incrimination while suing to block release of emails related to her state-related activities.

In a lawsuit filed Thursday against The Oregonian/OregonLive in Marion County Circuit Court, the fiance of former Gov. John Kitzhaber also repeatsearlier assertions that she is not a public official.

In an earlier public records order, Attorney General Ellen Rosenblumrejected Hayes' arguments in ordering her to release the records. The order responded to a petition by The Oregonian/OregonLive under the state's public records law.

In her lawsuit, her lawyer, Whitney Boise, adds a new argument. "Under the Oregon and United States constitutions, ordering Ms. Hayes to provide documents that are related to the conduct of public business compels her to admit that responsive emails exist, are in her control, and authenticate that the email relates to state business, violating her right against self-incrimination ... Ms. Hayes' constitutional rights supersede the Oregon Public Records Law."

Invoking Hayes' right against self-incrimination suggests there is a plausible argument that the information could be used as a link in a chain of evidence against her, said Tung Yin, a criminal law expert who teaches at Lewis & Clark Law School. But it doesn't necessarily mean the emails contain "smoking guns"

-- Nick Budnick and Laura Gunderson nbudnick@oregonian.com lgunderson@oregonian.com 503-294-5083 503-221-8378 @nickbudnick @LGunderson

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Cylvia Hayes claims right against self-incrimination to block emails as feds scrutinize Kitzhaber fiancee

Former first lady Cylvia Hayes is asking a court to block release of her emails in response to a Jan. 29 public records request made by The Oregonian newspaper.

Hayes asserted her Fifth Amendment right against self-incrimination in a court document filed Wednesday, Feb. 25, and stated that her Constitutional rights supercede Oregon public records law.

The complaint filed by Hayes attorney in Marion County Circuit Court also restated many of her previous arguments against the records release, which the Oregon Department of Justice rejected early this month. It included the claim that Hayes was never a public official and therefore her emails are not subject to the states public records law.

According to Hayes attorney, Whitney P. Boise, Any functions Hayes performed for the state were unpaid and largely advisory or ceremonial in nature. Hayes is engaged to marry former Gov. John Kitzhaber and for most of Kitzhabers third term, Hayes served as an unpaid adviser on state energy and economic development policy. Kitzhaber resigned Feb. 18 amid state and federal criminal investigations into allegations that Hayes used her position for financial gain.

Private email accounts

The Oregonian newspaper sought Hayes emails concerning state business received or sent by Hayes after Jan. 1, 2011. The newspaper also requested emails specifically containing the phrase first lady or the acronym FLO that Hayes sent, received or was copied.

Hayes used several private email accounts to correspond with public employees regarding state policy, travel arrangements and her private consulting business. She never had a state email account, and instead used a Gmail account with the signature Cylvia Hayes First Lady State of Oregon.

On Feb. 12 the Oregon attorney generals office ordered Hayes to turn over the emails, after The Oregonian filed a petition seeking the records. Hayes opposed that petition and argued that she was not a public official and thus not subject to Oregon public records laws. Deputy Attorney General Frederick M. Boss rejected that argument.

It is clear that Ms. Hayes worked extensively on government matters, and did at least some of that work by email, Boss wrote in the Feb. 12 order.

Records already released to the Pamplin Media Group/EO Media Group Capital Bureau and other news organizations have revealed Hayes directed the work of state employees, including at least one executive level employee.

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Hayes goes to court to block release of emails

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Brain imaging can already pull bits of information from the minds of willing volunteers in laboratories. What happens when police or lawyers want to use it to pry a key fact from the mind of an unwilling person?

Will your brain be protected under the Fourth Amendment from unreasonable search and seizure?

Or will your brain have a Fifth Amendment right against self-incrimination?

These are issues the United States Supreme Court is going to have to resolve, said Nita Farahany, a professor of law and philosophy at Duke University in Durham, North Carolina, who specializes in bioethical issues.

Those legal choices are likely decades away, in part because the exacting, often finicky process of functional magnetic resonance imaging (fMRI) could be thwarted if a reluctant person so much as swallowed at the wrong time. Also, a brain exam couldnt be admitted in court unless it worked well enough to meet the legal standards for scientific evidence.

Still, the progress being made in brain decoding is so intriguing that legal scholars and neuroscientists couldnt resist speculating during a law and memory session earlier this month at the annual conference of the American Association for the Advancement of Science in San Jose, California.

Our brains are constantly sorting, storing and responding to stimuli. As researchers figure out exactly where and how the brain encodes information, the fMRI also becomes a tool that can decode that information. The fMRI can identify the portions of the brain that are active, based on the increased quantity of freshly oxygenated blood they draw. Already, brain decoding can perform a version of that old magicians trick guess what card someone is looking at with better than 90 percent accuracy, University of California, Berkeley neuroscientist Jack Gallant told the group.

Farahany predicts that like most new science, brain decoding will break into the courtroom for the first time through a cooperative witness, someone who wants to use it to advance his or her case.

Stanford University law professor Henry Greely, who moderated the Feb. 13 law and memory session, suggested that a court might be especially open to novel techniques during the sentencing hearing in a death penalty case.

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Nita Farahany: In the future, could brain imaging be used as legal evidence?

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NEWS Dave Chapman says city, county prosecution violates Fifth Amendment by Caelainn Carney and Will Marshall | Feb 12 2015 | 6 hours ago

Charlottesville Commonwealths Attorney Dave Chapman filed a motion of nolle prosequi Tuesday in the case against Jesse Matthew and the disappearance and murder of second-year College student Hannah Graham, thereby handing the prosecution over to Albemarle County Commonwealths Attorney Denise Lunsford.

The motion, which represents a prosecutors willing decision not to pursue charges before the defendant goes to trial or receives a verdict, was filed in order to comply with the Double Jeopardy Clause of the Fifth Amendment.

The clause stipulates that a defendant cannot be tried for the same offense more than once. Specifically, the same evidence cannot be used to try a person repeatedly for a specific crime.

According to the motion filed with the General District Court in Charlottesville, the citys Commonwealths Attorney requested the charge be dropped because Matthew has already been charged with abduction with intent to defile in Albemarle County.

The prosecution of [Mr. Matthew] for [the pending charge] is duplicative and likely to become barred by the Double Jeopardy Clause of the Fifth Amendment, the motion states.

Chapman said the court jurisdictions overlapped between Albemarle and Charlottesville because Matthew was originally charged in Charlottesville, but Grahams body was later found in a field in Albemarle County.

Chapman said trying Matthew in Albemarle was a way of consolidating the relevant evidence and charges in a way that is preferable for the Commonwealth.

[It is] both efficient and appropriate in terms of the law and the justice process, he said.

Miriam Dickler, director of communications for the City of Charlottesville, said this kind of motion is fairly standard. She said there was never a charge for homicide or murder in the City of Charlottesville and the jurisdiction where remains are found is usually the one that takes the case.

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Charlottesville Commonwealth's Attorney files nolle prosequi motion against Jesse Matthew