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.