Nisley, Wolf bar complaint dismissed

Prosecutors have an ethical obligation to reveal evidence potentially favorable to an accused defendant. In this instance, defense attorneys were unable to use material related to The Dalles Police Officer Kienlen’s demotion due to a violation of the department’s policy on truthfulness while Nisley and Wolf had been aware of the material.

Nisley determined that the material, a Feb. 17, 2011, “Notice of Discipline,” would not be considered admissible in court in a 6-page response, dated April 12, 2011, to a request filed by Hood River-based defense attorney Brian Aaron.

At Nisley’s request, then-Judge Paul Crowley privately reviewed material related to Kienlen’s demotion and found that the material did not satisfy the requirements to be made discoverable, meaning used as evidence in court. Excluded from that private review was the Feb. 17, 2011, letter, but a later letter, dated December of that year, and also signed by Chief Jay Waterbury, was present.

Nisley told Bar investigators that he believed he did not have the 2011 “Notice of Discipline” in his possession at the time of Crowley’s review. The Bar, in their decision, found that “Legally, that is of no importance. Documents in the possession of the police are presumed to be in the possession of the prosecutor.”

Newly-elected Wasco County District Attorney Matthew Ellis found the material in Nisley’s former desk in January 2021. He later held a hearing with Kienlen and determined that the officer would be placed on what is known as a Brady List, barring Kienlen from testifying as a state witness. Kienlen was dismissed from the department days later.

Ellis brought forth the complaint with supporting complaints from Deputy District Attorney Sarah Carpenter and The Dalles-based attorney William H. Howell. Howell had notified the Bar that he did not receive the 2011 “Notice of Discipline” as discovery material during a case in which he performed as defense counsel.

During the investigation, Crowley was contacted and told Lawrence Matasar, Nisley’s counsel, that had he seen the 2011 Notice, he would have ordered disclosure. He stated, “My thought process is ... That if a defense lawyer receives a copy of a letter where the chief of police says that a specific officer is not honest, that could lead the defense to then inquire of the chief whether the chief has an opinion as to the veracity of that officer and that opinion would be admissible in court. So I don’t think the letter itself is admissible … a single act of misconduct is not admissible, but the opinion of the chief of police would be admissible.”

In analyzing the complaint, the SPRB found that the central issue is whether the 2011 Notice of Discipline would have led to admissible evidence that the December letter would not have, and that whether the February 2011 Notice constituted impeachment evidence — that is, evidence that reveals bias, untruthful character, or prior inconsistent statements.

The chief complaint, filed by Ellis and then-Chief Deputy District Attorney Kara Davis (who now works as the Gilliam County District Attorney), argued that the February Notice gave greater detail and indicated that Kienlen’s dishonesty went beyond one incident, and that it provided greater support that Waterbury and at least one other officer found Kienlen to be untruthful.

The SPRB determined that Nisley should have disclosed the February 2011 Notice to defense attorneys. “However, given the Bar’s high burden of proof, and the unique circumstances presented here — namely, that Nisley disclosed exhibits to Judge Crowley that were similar to the Notice in that they could have led to impeachment evidence; and that Judge Crowley’s December Decision found that Nisley did not need to disclose the similar exhibits — the SPRB ultimately determined that there was not clear and convincing evidence that Nisley had actual knowledge that the Notice was required to be revealed by law, and that he nonetheless failed to reveal it.”

When reached for comment, Nisley said via email that he feels vindicated by the decision.

“Mr. Ellis’ repeated claims that I tried to cover up the untruthful statements of Jeff Kienlen were lies,” Nisley said. “He, Ms. Carpenter and Ms. Davis knew I had a judicial ruling that the information was not subject to disclosure and yet they persisted in their claims that I covered it up.

“That said, this isn’t about me, it’s about Ellis, Davis and Carpenter going after the police. Law enforcement shouldn’t have to worry about getting put on the Brady list because they lied and told their kid Santa Claus or the tooth fairy was real. My assertion about Santa Claus and the tooth fairy may seem humorous, but placing a police officer on the Brady List for telling a lie is not why we have the Brady rule,” he added.

As to Wolf, the SPRB found that since Nisley was her superior, and that he provided an analysis as to why disclosure was not appropriate, she did not violate ethical rules.

Wolf, who serves as a deputy district attorney for Hood River County, said in an email that “I am pleased with the Bar’s decision.”

Ellis told Columbia Gorge News that the ruling clears a path for prosecutors across the state to withhold evidence without accountability.

“We are in a position of power as prosecutors with absolute immunity,” Ellis said. “The State Bar is the only organization holding prosecutors accountable … My emphasis is that this is just really bad precedent for prosecutorial misconduct.”

The decision by the SPRB comes days after Ellis announced that he began the process to dismiss or expunge 169 misdemeanor and felony convictions as a result of an independent case review, performed by FA:IR Law Project, involving Kienlen.