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A judge has cleared the way for the state of Oregon to bring Washington County sheriffs deputy Rian Alden to trial in November for an alleged assault of a jail inmate, denying his motion to dismiss the case.

Aldens lawyer Dan Thenell argued during hearings in April that the case should be thrown out, alleging a longtime prosecutor pressured two sheriffs training officers to withdraw their support of Aldens use of force and not testify in his defense.

Thenell argued that the sheriffs office found Aldens use of force to be within policy and consistent with his training.

Alden is accused of slamming a jail inmate against a concrete wall during booking in a 2018 case that prosecutors first dropped and then revived in 2020 when a racist email sent by Alden surfaced.

The county last year paid $625,000 to settle a suit filed by the inmate, Albert Molina, who suffered a fractured skull. County commissioners found that Alden needlessly injured and traumatized Molina.

Washington County Chief Deputy District Attorney Jeff Lesowski argued in court that the allegations raised by Aldens lawyer were intended simply to derail his clients prosecution.

Lesowski told a judge that the prosecution results from a video of the alleged assault depicting a shocking act of police brutality, of a physically imposing veteran law enforcement officer slamming the head of an intoxicated, unarmed and shoeless prisoner against a concrete wall.

It also rests on the medical records that showed Molina suffered an immediate loss of consciousness and a serious brain injury, he said.

The apparent motive for those actions was the victims disrespect for Alden by saluting him in a mocking way and flipping him off, after Alden had been laughing at the victim with his younger deputy colleagues, Lesowski said.

It would be outrageous if the district attorneys office werent prosecuting the jail deputy, Lesowski argued.

Were sitting here with a pretty obvious crime staring us in the face, he told the judge.

Washington County Circuit Judge Beth L. Roberts dismissed Aldens allegations of outrageous government conduct, in a written ruling.

Having considered all the testimony and evidence presented to the court, under the totality of the circumstances, the court does not find that the governments conduct is grossly shocking and so outrageous that it violates a universal sense of justice, the judge wrote in her ruling.

Alden, 41, has pleaded not guilty to second-degree assault and official misconduct. He remains on paid leave. His trial is set for Nov. 2.

The defenses allegations stemmed from June 2020 conversations between Bracken McKey, another chief deputy prosecutor in the District Attorneys Office, and two sheriffs training officers.

Both training officers - Sgt. James Cuthbertson and Cpl. Cade Edwards - signed sworn statements that Thenell filed in court, contending McKey told them he was pursuing Alden so he didnt look soft on crime if he ever ran for district attorney and that their testimony wouldnt look good for the sheriffs office.

But Edwards later recanted his accusations against McKey, saying Thenell had swayed him to sign the declaration that improperly characterized his remarks, according to court records.

The recantation stirred concerns about the honesty of the two training officers.

McKey in no way intended to threaten Cuthberson but gave him a courtesy heads up when he told him by phone that hed have a duty to disclose Cuthbertsons opinion in support of Aldens use of force to Aldens lawyer, and that it may not look good, according to Lesowski.

When considered in light of the damning video and the fact that the Oregon State Police concluded Aldens violence was unjustified, McKeys words were simply a way of stating an obvious fact: This was a very ugly incident that was going to be difficult to defend or justify, Lesowski wrote to the court.

Cuthbertson, who was the use of force manager for the sheriffs office at the time Molina was injured in the jail, testified in court earlier this year that he felt threatened, that if I testified for the defense it wont go well for me. Since that day, things have not gone well. Ive been assigned to a desk. ... Ive been criminally investigated.

Cuthbertson also testified that the sheriffs office teaches a crashing the line technique. If someone is combative or coming at a deputy, the deputy would go forward at them, and meet them to stop that distance. ... We try to overwhelm the person that potentially can be assaultive toward you, he explained on the witness stand.

Cuthbertson testified, though, that when he met with McKey in June 2020 he hadnt yet formed a final opinion on Aldens use of force, and had questions, such as whether Alden experienced an adrenaline rush, or took into account the wall that was behind Molina when he slammed him into it.

Lesowski later wrote to the court that Cuthbertsons testimony suggesting he hadnt yet formed an opinion on Aldens use of force in that June meeting with McKey was not credible.

If Cuthbertson had not expressed an opinion, McKey would have had no reason to call Cuthbertson the next day to tell him that his opinion would need to be disclosed to the defense as exculpatory evidence, Lesowski wrote.

Edwards, the other training officer, declined to testify in court, citing his Fifth Amendment right not to incriminate himself.

The district attorneys office granted Edwards immunity in December for his changing statements, but Edwards lawyer Mark Makler said that didnt absolve him of any potential criminal exposure going forward by the county prosecutors office, or by other state or federal agencies.

Washington County Sheriff Pat Garrett, called by Thenell as a witness, testified that Cuthbertson and Edwards had met with him and the undersheriff together, shortly after the meeting they had with McKey, in which they shared that they felt threatened to not testify in support of Aldens use of force. They shared that McKey said something like, this would not look good for you, Garrett said.

They expressed general concern about testifying for the defense, and we discussed that that was a distinct possibility if called upon by the defense, and we told him that that would be appropriate, Garrett said.

Lesowski told the court that Cuthbertson is not expected to face any discipline and was assured that his job is safe should he testify in support of Aldens use of force.

The state Justice Department ultimately found insufficient evidence to support allegations against McKey of witness tampering or coercion, department documents show.

The Washington County District Attorneys Office said it wont pursue perjury charges against Edwards but that his changing statements could raise potential concerns regarding his truthfulness and credibility if called to testify in future cases. Prosecutors asked state police to investigate Cuthbertson for alleged false swearing. That inquiry is ongoing.

-- Maxine Bernstein

Email at mbernstein@oregonian.com; 503-221-8212

Follow on Twitter @maxoregonian

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Assault case against Washington County sheriffs deputy can proceed to trial, judge rules - OregonLive

The Supreme Court of Pennsylvania recently overturned Bill Cosbys 2018 conviction for crimes of sexual assault. Most have focused on the justness of this outcome. But the courts 79-page opinion also has implications for how witnesses in civil cases navigate the potential risk of self-incriminationincluding witnesses testifying on behalf of a corporation as a corporate designee under Federal Rule of Civil Procedure 30(b)(6).

As we discussed in our blog on invoking the Fifth Amendment in a civil deposition, the privilege can only be claimed if the deponents answer to the question may render them vulnerable to prosecution for a crime. The question must require the witness to confront a substantial and real, and not merely trifling or imaginary, hazardof incrimination.[1] Whether the risk of incrimination is substantial and real is the very issue that has resulted in why Cosby is free today.

Cosbys legal issues started with a criminal investigation in 2005 by then Montgomery County District Attorney Bruce Castor after an alleged victim reported she was sexually assaulted by Cosby in 2004. For a variety of reasons, District Attorney Castor determined that he did not have enough evidence at the time to prosecute Cosby. Prosecutors weigh similar decisions every day, and typically, a prosecutors decision to not proceed with charges is not binding and is subject to reconsideration at a later date. But District Attorney Castor wanted to help the victim seek some justice in a civil case, so he made a promise he could not keephe publicly promised not to prosecute Cosby for that particular crime. Cosbys attorneys then determined that, because he had no reasonable fear of prosecution, he could not invoke his Fifth Amendment right against self-incrimination at a deposition in his civil case. Cosby made multiple admissions of guilt in the depositionin reliance on the promise that he would not be criminally prosecuted.

Whether this promise was enforceable and valid was a hotly litigated issue in the casebut the Supreme Court of Pennsylvania held that whether the promise was properly executed and / or enforceable was irrelevant since Cosby detrimentally relied on it. There was no way to un-ring the bell of his testimony and restore him to a position where he would not have incriminated himself had he utilized his Fifth Amendment protections. So, when District Attorney Castors successor later decided to charge Cosby and used his admissions in the civil deposition against him in the criminal trial, the court held that Cosbys rights to due process and protection from self-incrimination were violated. When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness.[2]

The civil and criminal justice systems interweave and collide in many circumstances, and some conduct, even negligent omissions, can raise both criminal and civil consequences. The complex circumstances of Cosbys conviction and subsequent release serve as an ominous reminder that your attorney needs to understand all aspects of potential incrimination and liability.

[1] Marchetti v. United States, 390 U.S. 39, 453 (1968).

[2] Pennsylvania v. Cosby, Supreme Court of Pennsylvania Case No. 39 MAP 2020 (June 30, 2021).

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What Does Bill Cosbys Overturned Conviction Mean for Your Fifth Amendment Rights Against Self-Incrimination? - JD Supra

American sprinter ShaCarri Richardson received perhaps the worst advice upon failing her drug test for marijuana.

Though she publicly apologized, she wasnt wrong. The United States Anti-Doping Agency's cannabis policies and the federal prohibition of marijuana are wrong and a waste of resources. But this country has a real hard time admitting that.

Richardson's disqualification from the Olympics is a gross injustice and they are taking away everything shes earned. The federal prohibition on marijuana has damaged American lives for half a century; this is the latest and most egregious example of it. Theyve taken a woman who is an American hero and gutted her.

She should be fighting this in court. The United States Olympic Committee is based in Colorado Springs. They are under the jurisdiction of the U.S. District Court of Colorado. Richardsons legal option would be to file a TRO (temporary restraining order) and injunction, seeking that the court order the United States Olympic Committee reinstate her on the team.

She would fight the TRO on grounds of 14th Amendment Equal Protection. Equal protection means that the rules and laws apply equally to everyone. Regarding cannabis, however, the rules are not applying equally to everyone.

For example, I represent 25-year-old Jonathan Wall, whos currently in jail for growing and selling weed. Theres a multibillion-dollar industry in the United States, with many people and corporations growing and selling weed all over the country. Its a violation of equal protection for one person to be able to do something in the United States while another person cannot.

It violates equal protection that Richardson could take one hit of pot and lose everything while other people in the country are making millions of dollars from growing, distributing, and selling it. Yet, while they get rich, she is deprived of everything she has earned.

Second ground would be the Fifth Amendments Taking Clause, which states: "Private property [shall not] be taken for public use, without just compensation."

To take her career and future earnings away from her causes a potential Fifth Amendment violation under the takings clause. Her career was a lifetime in the making. Earning it and going through the Olympic trials and everything else that shes done to deserve a spot on the Olympic team, thats her property. Yet, the government is taking it from her without due process. Its like going to a doctor or lawyer and saying, Were taking your license or coming to your house and saying, Were taking your home because you took a hit of pot in the backyard and cannabis is federally illegal.

This is a gross injustice and that they are taking away everything shes earned.

Its undeniable that the U.S. government has a much easier time punishing people of color than white people. The federal prohibition on pot has been a failed policy. Its been a racist policy. The very roots and motives of the drug war and the federal prohibition on cannabis are racist. This is just a continuation of a policy that is fundamentally racist, in a more high-profile setting.

President Joe Biden said: Rules are rules. But, as we saw in the past, just because something is a rule does not mean its brutally wrong and unjust. Do you want to argue Rules are rules to Jim Crow? Think about the lives that have been destroyed because of the federal prohibition of marijuana.

Rules are rules is one of the most intellectually and morally bankrupt arguments that you could ever offer because this country has a history of using unjust rules to damage people of color. And thats exactly what's happening here.

But it shouldnt be happening here. ShaCarri should be fighting it. As a representative of our country, it would be the most patriotic thing she could do.

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How Sha'Carri Richardson Can Sue Her Way Back Into the Olympics - The Daily Beast

A tentative contract has been reached between representatives of the union representing Columbus police officers and the city that includes a large payout for officers in exchange for somechanges to how alleged police misconduct investigationsare carried out, The Dispatch has learned.

Members of the Fraternal Order of Police Capitol City Lodge No. 9are currently voting on the proposed contract through Saturday night. If the contract is approved by the members of the union, Columbus City Council would then vote on whether to accept the contract perhaps as soon as Monday, the body's last meeting before its summer break.

FOP Local 9 leaders say they will not comment publicly about the tentative contract until after it is voted on by membership, which includes about 1,900 members from officers up to commanders.

Highlights of the new contract:

Mayor Andrew J. Ginther's office did not respond to questions from The Dispatch about where the money for the pay increases and the buyouts will come from. However, sources have speculated to the newspaper that the buyout money will from from federal COVID-19 relief funds.

"We are encouraged to have reached a tentative agreement through the collective bargaining process, but it is important to let the process play out free of interference and for members to cast their vote," Ginther said in a prepared statement.

The new Civilian Police Review Board, approved by 74% of voters in November 2020 and seated by Ginther and City Council earlier this year, was expected to be a sticking point in negotiations. Ginther and other city leaders had said publicly they expected to negotiate language into the contract that would take away some of the police union's power in investigations and give more authority to the review board and newly created Inspector General position.

More: Columbus police union seeks to stop interviews with officers in protest misconduct probe

However, the language in the proposed contract shows no significant deletions from the contract approved in 2018. There is some new language connected to the Civilian Review Board and Office of Inspector General.

More: Read the FOP's 2018contract with the city

According to the tentative contract agreement, the review board will not have subpoena power. Officers can be ordered by the police chief as under previous contracts, or bythe Office of the Inspector General to appear and participate in investigations into allegations of misconduct or behavior that are not criminal in nature.

If an officer is suspected of criminal misconduct, they cannot be forced to participate because of Fifth Amendment rights against self-incrimination.

More: Columbus police union seeks to stop interviews with officers in protest misconduct probe

Civilian Review Board representatives can be present at departmental hearings for officer discipline before the Director of Public Safety, according to the proposed contract. Those hearings would continue to not be open to the public.

An investigator from the Office of the Inspector General can also observe criminal investigations, according to the proposed contract, but neither the Inspector General or the Civilian Review Board can conduct investigations into alleged criminal misconduct.

The proposed contract would requiresuspensions, demotions or terminationsto be kept in an officer's personnel record for eight years, compared to the six years required under the current extended contract. That means if an officer is to receive progressive discipline, a suspension is kept on their record to be used for eight years.

In July, Ginther told The Dispatch that the city would be pushing for increases in the length of times complaints stay in an officer's personnel file andmandatory post-incident drug and alcohol testing after a shooting or deadly use of force.Drug and alcohol testing is included in the tentative new contract.

More: What we know about charges against three Columbus police officers from 2020 protests

In late December, Ginther said the top priority as it related to the Civilian Review Board was to make sure it had subpoena power and the ability to make recommendations to the chief about officer discipline.

The new contract also would increase the ability for body cameras to have a two-minute look-back window with audio. The department's body cameras currently have a 60-second lookback feature that does not include audio.

This lookback feature proved important in the shooting death of Andre Hill, an unarmed Black man, by former Columbus police officer Adam Coy in December. Coy's body camera was not activated at the time of the shooting, but captured video without audio of the incident. Coy has since been fired and indicted on charges of murder, felonious assault and reckless homicide. He has a scheduled status conference hearing Wednesday on his case.

More: Columbus City Council expands body cam requirement for police working with state, feds

When the police union's contract had expired with the city in December 2017, it took until November 2018 for terms to be finalized. That process involved having a fact-finder issue a report about resolving key issues surrounding pay raises, pension premiums and insurance coverage. That contract was ultimately approved by City Council in January 2019 and became retroactive to Jan. 1, 2018. The Columbus Division of Police has continued to operate under the expired contract during the negotiation process, which began in mid-2020, but was stalled by COVID-19.

More: Read the FOP's 2018-2020contract with the citythat members continue to work under

Should either side reject the tentative agreement, the negotiation process would proceed to the factfinding process.

A factfinder would be hired to examine the proposed changes to the contract from each side and issue a report as to resolutions to those issues. The union and City Council would have to vote to accept the changes outlined in the factfinder's report or the process would then go to binding arbitration. An arbitrator would be selected by mutual agreement and whatever the arbitrator decides would be the final contract terms.

Columbus firefighters agreed to take no pay raise in 2021 because of the COVID-19 pandemic, but will receive a 2.5% raise in 2022 and 3.5% raise in 2023, in accordance with the terms of the contract approved in November by International Association of Fire Fighters Local 67, which has more than 1,550 members. The cost of that three-year contract to the city was expected totalmore than $20.1 million.

bbruner@dispatch.com

@bethany_bruner

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Columbus and police union reach tentative 3-year contract calling for 14% raises, buyouts - The Columbus Dispatch

Jul. 20ATHENS A jury that had listened to hours of detailed financial testimony Monday in the public corruption trial of Limestone County Sheriff Mike Blakely was not present to hear the judge warn the final witness of the day that he had a Fifth Amendment right to remain silent and avoid self-incrimination.

It was the sixth day of the trial and the first day in which witnesses were called in the state attorney general's prosecution of the 10-term sheriff on 11 felony counts of theft and ethics violations.

Retired Judge Pamela Baschab had the jury leave the courtroom before issuing the Fifth Amendment warning to Trent Willis, founder and CEO of Red Brick Strategies in Huntsville. Red Brick assisted Blakely in his successful 2014 reelection campaign.

Willis, it turns out based on the colloquy between the lawyers as they argued motions to the judge, is the subject of an investigation involving the disappearance of funds from the campaign account of state Rep. Richie Whorton in 2018, a campaign that Red Brick Strategies managed. A separate investigation involving Willis or his associates was mentioned but not described.

In a whispered sidebar with Baschab while Willis remained on the witness stand, Assistant Attorney General Clark Morris, head of the attorney general's anti-corruption unit, appeared to alert the court to the pendency of the investigations and the possible need for Willis to be advised he had a right not to incriminate himself. Baschab had the jury escorted to the jury room and then placed her head in her hands.

After the jury left, Morris acknowledged the investigations, but said Willis is not receiving any special treatment as a result of testifying in the Blakely case.

Blakely defense attorney Marcus Helstowski complained that information about the investigations was not turned over to the defense despite discovery requests early in the case. Morris said her anti-corruption unit did not know about them because a different unit of the office was handling them.

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"It is embarrassing to our office that this happened," Morris said, and explained that at the time the Attorney General's Office was "siloed" so information on the activities of one unit was not shared with other units.

Blakely's lawyers made a motion that Willis be disqualified as a witness because of the prosecution's failure to notify the defense earlier of the investigations, and that the jury be advised to disregard the testimony that came before he was advised of his rights. The defense also moved for a mistrial, which was denied.

Baschab advised Willis his testimony was suspended until 9 a.m. today, and she advised the lawyers to file briefs outlining their positions on whether he could continue his testimony.

Red Brick Strategies

Before the abrupt end to his testimony, Willis had been providing details on a $4,000 check Red Brick Strategies had issued to Blakely and which, according to other testimony, Blakely deposited into his personal account.

Willis said he reached an arrangement with John Plunk, a lawyer in Athens, and Blakely that Red Brick would handle consulting for Blakely's campaign, which would include designing advertisements, direct mail campaigns and related political work.

Willis said his firm generally works for Republicans. Blakely is a Democrat. Willis said he feared that if campaign disclosures with the Secretary of State's Office showed his firm had received payments from Blakely's campaign account, it would undermine his ability to work with future Republican candidates.

To avoid this issue, Willis said, it was agreed that Plunk would pay Red Brick, rather than the campaign committee. He said it was his expectation that these would be reported as "in-kind contributions" from Plunk to the Blakely campaign, so Red Brick would not appear on the forms.

He said Plunk or a company associated with Plunk made five of the six monthly payments agreed upon at $3,500 each, and he invoiced Plunk for the final $3,500 payment on Nov. 7, 2014, days after Blakely won the election.

Willis said Blakely's campaign committee issued a check for $7,500 to Red Brick on Nov. 14, 2014. In separate testimony, Blakely campaign treasurer Tom Watkins said he issued this check at Blakely's request. According to Willis, Blakely contacted Willis and asked if he could receive a refund for the $4,000 overpayment. Also on Nov. 14, Red Brick issued the $4,000 refund check to Blakely. According to separate testimony, the check was deposited in Blakely's personal account three days later.

Willis testified he signed the check, but Blakely filled in the amount and payee. Asked by Morris why he would give Blakely a blank check, Willis responded he trusted him because "this is the sheriff of Limestone County."

According to phone records, Willis and Blakely spoke twice on Nov. 13, 2014, and eight times the following day.

The testimony was relevant to a count in the indictment alleging that Blakely stole money from his campaign account. Blakely's treasurer testified that if a refund was due, it should have been deposited in the campaign account, not Blakely's personal account.

Campaign contributions

Earlier in the day, the testimony focused on two other campaign contributions.

Blakely was endorsed by the local Realtors organization and received a $1,500 donation from the Alabama Realtors Political Action Committee in December 2014, a month after Blakely had won the election. According to testimony from bank officials Monday, Blakely deposited the money into his personal banking account at Bank Independent, not the campaign account at First National Bank. Blakely's campaign treasurer said he always made the deposits into the campaign account. He said he never reported the PAC contribution to the state because he did not know about it.

Austin Hinds, who is an owner of Austin Hinds Motors in Marshall County, testified he contributed $2,500 to Blakely in November 2017. A copy of the check listed its purpose as "reelection donation." Blakely deposited the check into his personal account, according to banking records. The campaign treasurer testified he did not report the contribution on campaign finance reports because he did not know about it.

In February 2018, campaign treasurer Watkins said, Blakely told him he had received $2,500 in cash as a contribution from Hinds. According to questions by the prosecution, Blakely told Watkins this was just days after one of the sheriff's subordinates was notified that Blakely was being investigated. Blakely gave Watkins a $2,500 check drawn on Blakely's personal account and Watkins deposited it in the campaign account, listing it on state records as a contribution from Hinds made Feb. 2, 2018.

Proceedings began Monday morning with a motion to dismiss filed by one of Blakely's attorneys. Nick Heatherly argued that the charges alleging that Blakely stole from his campaign accounts should be dismissed because Blakely was effectively the owner of the accounts and could not steal from himself. He said the allegations only amounted to violations of the Fair Campaign Practices Act, not theft, and that charges filed under that law were time-barred because they were filed beyond the statute of limitations.

Baschab denied the motion.

eric@decaturdaily.com or 256-340-2435. Twitter @DD_Fleischauer.

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Judge in Blakely trial suspends testimony by witness under investigation - Yahoo News