The bar complaint against Wasco County’s former District Attorney Eric Nisley and former Chief Deputy DA Leslie Wolf has proceeded to its second phase of investigation.
Linn Davis, the Oregon State Bar Association counsel assigned to head the initial screening phase of the bar proceedings, said the case has been referred to the Disciplinary Counsel Office, which will review the filings and determine “whether there is probable cause that a disciplinary violation occurred.
“If necessary, Disciplinary Counsel may conduct a further inquiry,” Davis wrote in a Sept. 1 email, noting that the referral “is not, and should not be construed in any way as, a determination that any improper conduct has occurred in this case.”
According to a bar spokesperson, if the Disciplinary Counsel’s Office does not find probable cause, the case will be dismissed — a decision which can also be reviewed upon request. If the office does find sufficient evidence, the case will be submitted to the State Professional Review Board (SPRB). The SPRB is composed of eight lawyers and two non-lawyer members of the public, and has the authority to dismiss the complaint, admonish the lawyer, or authorize formal charges against the lawyer.
The complaints coming out of the Wasco County District Attorney’s Office allege Nisley withheld information for years that City of The Dalles Police Officer Jeffrey Kienlen was demoted for violating city policy on truthfulness. Wasco County District Attorney Matthew Ellis and Chief Deputy DA Kara Davis, who filed the joint complaint, also alleged Wolf knew about the details of the officer’s discipline and continued prosecuting cases involving Kienlen as a witness, and “did not notify any defense attorneys of the reason for Officer Kienlen’s demotion.”
Case law, including a 1963 U.S. Supreme Court ruling in Brady v. Maryland, and bar ethics require prosecutors to disclose evidence that could benefit a defendant.
Ellis — Nisley’s successor — said in a January announcement that he found a 2011 notice detailing Keinlen’s demotion after having found it “buried in (Nisley’s) desk.” The discovery prompted Ellis to initiate a “significant case review” over cases where Kienlen had testified as a primary witness over the past decade.
Ellis also initiated a “Brady investigation” into the officer. After a hearing, Ellis placed Kienlen on a “Tier 1 Brady list” barring the officer from testifying as a witness. Following the decision, the City of The Dalles fired Kienlen. Last month, Kienlen filed a tort claim notice informing city officials he intends to sue the city over wrongful termination. Circuit Court officials said no suit has been filed to date.
The 2011 “Notice of Discipline” showed that former Police Chief Jay Waterbury demoted Kienlen after it was discovered he lied to his colleague about his whereabouts while attending a conference in Salem. Waterbury discovered he had stayed two nights in a hotel room with Wolf after Kienlen said he would be staying with his cousin.
Kienlen and Wolf have both in separate circumstances denied a romantic element to their relationship.
In 2011, Nisley refused to disclose the letter to a defense attorney, arguing the matter was of a personal nature and was not subject to disclosure under the Brady test. But Ellis took an opposite stance, arguing the notice was “unambiguously Brady material.”
On Aug. 27, Ellis and Chief Deputy DA Davis submitted a further letter to bar counsel stating “both (Nisley and Wolf) were aware the Letter of Discipline existed, but they did more than simply withhold the letter — they actively suppressed its existence from defense counsel, the court, and even within their own office.”
Deputy DA Sarah Carpenter, who worked with Nisley during his time in office, filed a separate complaint against Nisley. She told the bar in late July that “Mr. Nisley kept this information from me, his deputy. Mr. Nisley kept this information from our colleagues in the defense community. Mr. Nisley kept this information from our judges.
“The consequences to our community are incalculable,” she added.
Nisley’s attorney, Lawrence Matasar, said the evidence against Kienlen would not be admissible in court, saying, “Nisley’s decisions not to disclose the Kienlen information was correct, and the Bar Complaints should be dismissed.”
Wolf’s attorney, Wayne Mackeson said a relationship between an officer and prosecutor “however described” is not subject to disclosure under Brady rules, and defers to Nisley’s analysis on the 2011 Notice — “that the Notice of Discipline did not constitute Brady material.”
“There was not a significant risk that Ms. Wolf’s representation of the State... was materially limited by her friendship with Sgt. Kienlen,” Nisley said.
The complaints have prompted questions over the integrity of convictions made while Kienlen was a primary witness. According to the Aug. 27 letter, at least 15 cases have been identified by the DA office for further review or immediate dismissal.
“We are now in the position where we may need to re-litigate or dismiss cases settled years ago,” Ellis said. “The ongoing review has barely scraped the surface of the voluminous cases involving Kienlen.”
Three non-profit defense organizations and programs wrote to the bar on positions ranging from outright support of the complaint to emphasizing the importance of disclosing evidence and the responsibility the bar has to hold prosecutors accountable.
Oregon Criminal Defense Lawyers Association and the Oregon Justice Resource Center did not explicitly take a position in the allegations. OCDLA informed the bar of the importance of “broad disclosure of exculpatory evidence,” while OJRC explained why the bar is often “the final opportunity for a victim of prosecutorial misconduct to hold a prosecutor accountable.”
Oregon Innocence Project supported Ellis and Davis’ position, saying “the facts, as we understand them, form a well-founded complaint.”