The Most Important Thing the Legislature Didn’t Do

By Marshall Wilde of Albany, Oregon. Marshall has been a criminal lawyer for almost 10 years in Texas, Oregon, and in the military.

Despite all the laudatory comments about the accomplishments of the special session, I’d like to point out that the Legislature didn’t fix a critical error in the law that essentially allows predators to victimize the very young and very old. In September, the Oregon Court of Appeals overturned the convictions of Michael Scott Simons for a number of counts of sexual abuse. Mr. Simons’ crimes were particularly evil, by virtually any definition of the word. As an aide in a nursing home, he sexually molested Alzheimer’s patients who were so far gone that they were no longer able to speak.

When confronted with the deteriorating behavior of some of his patient/victims, Mr. Simons gave a complete, very detailed confession. At trial, the State corroborated the confession by showing motive and opportunity, as well as behavioral changes in the patients that suggested that they’d suffered some sort of trauma. Judge Janet Holcomb of the Benton County Circuit Court found that those circumstances were sufficient to show the defendant did do what he confessed to. It’s worth noting that the last Benton County District Attorney actually resigned because Judge Holcomb was so hostile to the prosecution, so it can hardly be said that she’s in the prosecutor’s pocket. The Court then convicted him of several counts of sexual abuse, as well as some misdemeanors committed against his coworkers, and sentenced him to 98 years in prison.

In most jurisdictions, this is all that would be required. Usually, the State only has to show that some part of the confession can be shown to be true. Generally speaking, it has to be something significant, but not necessarily part of the crime itself. The evidence must be “sufficiently reliable” to show that the defendant is not falsely confessing to crimes he didn’t actually commit.

However, perhaps accidentally, the Legislature adopted a different rule in Oregon. Oregon Revised Statutes 136.425 requires “some other proof that the crime has been committed”, in addition to the confession. The Court interpreted this as requiring corroboration of the crime itself, the “corpus delicti” in legal-speak, rather than just the surrounding facts. Perhaps in an attempt to deflect the inevitable blame for this overly technical reading of the statute, the Court of Appeals invited the Legislature to address this problem in an opinion from the week after it overturned almost all of Mr. Simons’ sentences.

Setting aside all this legalese, why should you care? Well, consider that virtually every crime committed against very young or very old person lacks the kind of specific physical evidence or victim testimony necessary to corroborate a confession like Mr. Simons’. The Court’s interpretation of the statute and the Legislature’s refusal to consider the matter essentially opened season on the very young and very old for sex offenders. It has become essentially impossible to prosecute sex crimes against these particularly vulnerable people. “Just don’t leave physical evidence” might as well be the new mantra in sex offender circles.

And so, I nominate enacting a short bill requiring only that confessions be corroborated with reliable evidence to protect children and the elderly as the most important thing the Legislature didn’t do in the special session.

In closing, I note that the Oregon Supreme Court refused to hear the State’s appeal of the Simons decision. Mr. Simons was released from custody this week. I hear he’s looking for work.

  • Rep. Sara Gelser (unverified)


    Thank you for posting this important piece. It is important to note that sense the Simons decision, another conviction--- for the sodomization of a toddler-- was also overturned on the same grounds. Infants and toddlers, people with Alzheimers or dementia, and people with developmental disabilities (mental retardation) are not going to be able to testify as witnesses when they are victims. The law as it stands leaves prosecutors without all the needed tools to seek justice for these individuals.

    Unfortunately, by the time the issues with the Simons case unfolded, we had passed the deadline for bill introduction for the short session. However, the issue was raised several times in conjunction with HB 3617, which was intended to expand protections for people with developmental disabilities from abuse and neglect.

    I have been working with DA John Haroldson on this issue. The first bill I introduce in 2009 will be a bill to correct this problem in the law which allows those who have confessed to harming the most vulnerable among us to walk free. I hope you will join me, DA Haroldson and others as we work in the coming months to draft a bill which will protect these vulnerable victims.

    In the mean time, it is a tremendous injustice that in the state of Oregon, our vulnerable populations can't find justice through the criminal justice system. It is a sad fact that in this great state, a person who rapes a person with a developmental disabilities is unlikely to be tried, and even more unlikely to be convicted. In the civil system, the civil penalty for raping a person with a developmental disability can be less than the penalty for confining a pregnant pig or animal cruelty. This is a perverse ladder of penalties, which we must change in 2009.

    I am committed to providing leadership in this issue, and am encouraged to see it raised here on Blue Oregon.

  • Rep. Sara Gelser (unverified)

    One more thing.. I raised the issue of rape in regards to people with developmental disabilities (DD) because it is such an overwhelming issue.

    Nationwide, over 80% of women with developmental disabilities will be raped or sexually assaulted in their lifetimes. Half of these women will be victims TEN or more times. That's right--- TEN or more times.

    Among men with DD, about a third will be victims of rape or sexual assault.

    These statistics are stunning, and demand action.

  • Marshall Wilde (unverified)

    Rep. Gelser - Thank you for your comments. I'm glad this did not go unnoticed by some legislators. I commend you for your responsiveness on this important issue, and your attention to concerns of the people as a whole, not just those in your district. While I don't dispute that some discipline was required to make the special session a success, it was a shame that this fell by the wayside.

  • verasoie (unverified)

    Not to diminish this issue, but I gotta say that the most important problem that the legislature didn't address, and that in fact would have on its own constituted an "emergency," would be the tort reform ruling that is leaving all state agencies exposed to massive lawsuits.

  • Insider (unverified)

    The State Senate refused to even discuss tort caps during the February Supplemental Session, even though the House was willing to begin work on this important issue after the Supreme Court ruling.

    Another lost opportunity, thanks to the Oregon Senate.

  • Edward LeClaire (unverified)

    Isn't it great that a concerned criminal attorney would write about such a glaring error in the law? After all, criminal attorneys are only one step away from the guilty people they represent. Hey, wait a minute! The Oregon State Bar lists Marshal L. Wilde as a prosecutor from the Linn County District Attorney's Office.

    See for yourself:

    What's up with that? Why would a prosecutor benignly describe himself as a "criminal lawyer"? I don't know this Marshal Wilde. Never met. But why would a prosecutor write such an obviously prosecutorial pitch and not just go ahead and say: I am a (deputy) district attorney?

    What's the deal? Now this pressing legal matter suddenly looks like another prosecutor who wants an easier job, who just wants to convict on nothing more than a confession and mere opportunity. Sounds like a prosecutor who wants to convict just because the cops said so. That isn't presumption of innocence and proof beyond a reasonable doubt. That isn't justice. That isn't the American way.

    The law at issue protects everybody from being convicted on the basis of a false confession alone. A good read on the topic is John Grisham's "The Innocent Man." (of which I am half-way through).

    And just so everybody knows: I am a criminal defense attorney. I practice law in Portland Oregon. I represent and defend a 'vulnerable population' (i.e., the accused and/or developmentally disabled). The Bar Directory lists me here:

    We should all be very scared of a prosecutor who wants to convict on nothing more than a confession. This looks like a prosecutorial campaign to lower the burden of proof.

    Now let's look at the other post. Rep. Gelser writes that 80 percent of developmentally disabled have been raped! Those statistics are shocking! But then again, nationwide there is a general concept in the law that people who lack mental capacity (read: developmentally disabled) can never legally consent to sex. So even if they say "yes," the law says they said "no". That means sexual activity of and amongst this population is rape or sexual assault by definition. So other than a shocking number, what does this really mean?

    Be suspicious and don't believe the hype.

  • Rep. Sara Gelser (unverified)

    Abuse and Neglect of Adults with Developmental Disabilities:

    This is a great overview, commissioned by the state of California.

    A person with a developmental disability does not have the ability to consent to sex with the care provider she relies upon to feed her, dress her, toilet her, and lift her. When you rely upon other human beings for all or most of your personal care needs, your life depends upon the approval of that person. You do not have equal power in the relationship, and you do not have the ability to consent to sex with such a person.

    It is my understanding that the studies (and the incidence is repeated in multiple studies) suggesting this high rate of sex abuse of individuals with DD is NOT based upon consensual relationships between individuals of equal power in a relationship. These are non-consensual events. Also, the 80% is for rape AND sexual assault-- not just rape.

  • Rep. Sara Gelser (unverified)

    My html skills are not so good.

    Here is the link: Abuse and Neglect of Adults with Developmental Disabilities

  • (Show?)

    Marshall, like verasoie I do not mean to diminish the importance of this issue, but to call it "the most important thing the legislature didn't do" is a bit too much. My nomination for that title is the failure of the legislature to even hold hearings on economic growth and change in Asia, especially China, and what it means for Oregon, and to fund expansion of Mandarin and study abroad in China programs for our public K-12 education system. With less than 1% of our students studying Mandarin, they will not be prepared for a world in which China's economy could be 2-3 times as large as the US economy and with a modernized military to match their economy. This failure could be in the history book in one hundred years. I doubt if your issue, important as it is, will be.

  • verasoie (unverified)

    Dave, man, you are all over with this (dKos, here)--- I can only hope that you are leading by example with this? How's your mandarin?

  • George Seldes (unverified)

    This would be a great opportunity to drop a bill that requires all police interrogations to be video recorded. The average Blue Oregon reader no doubt thinks that a person who confesses to a serious criminal charge is actually guilty of having committed the crime charged; this is not at all the case.

    Given the draconian sentences available and the wholesale use of overcharging as a club to coerce defendants, "confessions" are a better measure of an accused's terror point than anything else.

    So, fine, you want uncorroborated confessions to be enough to send someone away for a long time? Videotape all custodial questioning of suspects -- the technology is cheap and widely available. Then you can show the juries what those confessions really look like.

  • Marshall Wilde (unverified)

    For clarity's sake, I will point out that I have practiced defense work for 4 of those 10 years, quite successfully, and that my military practice consists more or less equally of defense and prosecution. I do not list my professional affiliations, because I do not speak for those organizations, just for myself.

    I do not wish to convict "only on a confession", but rather on a confession with sufficient indicia of reliability, the standard in virtually every other jurisdiction. The requirement of corroboration exists solely to ensure that we do not convict on a false confession. With all due respect to Mr. LeClaire, I think most of us would like to see people who truthfully admit to serious crimes behind bars.

  • (Show?)

    I do know Marty Wilde. Marty is a great Democrat and a law and order man. I'd like to see him run for office someday. I look forward to more of Marty's columns.

  • Vivian Bradley (unverified)

    I am the co-worker who turned Simons in for sexual assult before we even found out about the patients/residents.Initally I was turned away by the police and told "if I would leave Michael alone, he would leave me alone" But that I should "be careful not to make him angry because guy's like this just aren't safe" Contradictory don't you think? I had to push and shove my complaint through the police department because I wanted him arrested for what he did to me! When investigators finally did find out about the patients they began to look at the case seriously. But not seriously enough! The investigator who talked with me, on the day I was told about the patients, told me they knew of approximately 16 women who they were "pretty sure" Michael had molested. I know some of them and I saw the changes in them, but I did not know the reason. When I would mention the behavioral changes(This by the way, all happened before Michael assulted me)I was told that these people did this from time to time or they were slipping into dementia. One woman told me she wanted to tell me something but knew she shouldn't. She came so close. In retrospect, from the timing and condition of these women I know now what she wanted to tell me. Do not underestimate the damage that Simons can and has done. Or the crimes he will repeat in the future. Do Not!! Michael Simons is a sociopath that should not be free in society. That this poorly structured law permits that to happen, is a horrendous flaw in our justice system. The question isn't how did this happen but what can be done about it! Michael Simons did get one thing out of prision..more criminally smart. Next time he won't leave witnesses.If he kills someone I personally don't think it will be the first time. You talk as if you know the things that happened in the time Michael worked at Samaritan Heart of the Valley. You only know a drop in the bucket...believe me. Did you know that because he told the completely inadequate administration that he had trouble driving back and forth to work because of a DUII He was allowed to stay in a room there,for an extended period of time...months! He had clothes and shoes in the closet. He did his laundry there. He LIVED there! Why would someone want to do that? There was also more corroborating evidence that was spoken of here. In taped conversation, that he knew were being taped, he told his grand mother that the things he confessed to were true and she asked him "Michael was it one woman 3 times or 3 different women?" He said 3 different women and 2 co-workers!" I heard this tape. How many times, and in how many ways can this guy scream guilty? To the person who thinks Simon's rights weren't being protected enough, what legal planet do you live on? What more do you want? Completely helpless people cannot stand up and speak for themselves. We have to use our common sense somewhere and be able to discern the maybe's from the obvious. There was a lot of evidence that Simon's was guilty, there might not be next time. As far as "The Most Important Thing The Legislator Didn't Do" Your damn right it is! For those of you who don't think so? Just pray to God it's not your wife, mother, or grandmother that has to look in his eyes and see what I saw. That second when a switch suddenly flips in a persons head and they turn into an animal.By the way, do you know how Simons was spending his Sundays for a couple years before his conviction? You guessed it. He was the sole Sunday Service volunteer in the church nursery. How does that go down?

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