The Dalles police officer terminated after being disqualified as state witness

“As public officials, the public’s trust is imperative and we understand the importance of transparency and accountability. We look forward to continuing to provide excellent service to the public,” Ashmore stated.

Kienlen had been placed on administrative leave back in January, following the initiation of a Wasco County District Attorney-led investigation into the officer.

Ellis had announced days prior to the officer’s firing that he made the decision, following a Feb. 26 due process hearing held with Kienlen and legal counsel, to place the officer on a Tier 1 Brady List — the most severe administrative penalty prosecutors can apply to law enforcement officials.

It was the first time in recent history that a member from law enforcement in Wasco County has been prohibited from testifying as a state’s witness because of their conduct, Ellis said in an announcement.

Ellis said that he made the decision to add Kienlen to the Brady list “because of his intentional and malicious deceptive conduct.”

Such conduct was documented, Ellis said, in a Dec. 3, 2010, letter of reprimand and a Feb. 17, 2011, “Notice of Discipline” letter, the latter of which Ellis said he had discovered in former District Attorney Eric Nisley’s desk just days after Ellis took Nisley’s position as the newly elected district attorney.

Ellis told Columbia Gorge News the 2011 letter had not been disclosed to defense attorneys, a key responsibility of prosecutors under the 1963 U.S. Supreme Court ruling in Brady v. Maryland. Not only does the ruling require prosecutors to disclose evidence which may exonerate a defendant, it also gives prosecutors the sole responsibility to maintain Brady lists, which are indexes of officers who have a documented history of dishonesty.

John Foote, a "longtime friend" of Nisley and retired district attorney who worked for Clackamas County for nearly two decades, reached out to claim Nisley had done nothing wrong in making a decision on the officer in 2011.

Foote said Nisley had already dealt with the incident in 2011..

Foote provided a copy of a public order, signed by Nisley and dated April 12, 2011, which appears to show that Nisley had in fact performed a Brady analysis on Kienlen in the context of ordering the release of documents in possession of The City of The Dalles, and concluded the Feb. 17, 2011 notice is not subject to public disclosure, based on his interpretation that "it is nearly inconceivable to conclude how the general public would perceive such conduct as materially affecting Officer Kienlen's ability to do his job or how it would be central to his duties."

"Generally, the fact that a police officer makes a false statement to a prosecutor does not trigger Brady," Nisley wrote.

"There was nothing improper about what (Nisley) did," said Foote, speaking for Nisley (Nisley confirmed with Columbia Gorge News he authorized Foote to do so).

Ellis used Brady best practices in determining the result of the hearing, according to documents reviewed by Columbia Gorge News. Those best practices categorize the severity of a Brady procedure by tiers. Depending on the tier an officer is assigned, Brady lists can be used by prosecutors to perform various actions, ranging from disclosing information about an officer’s misconduct to the defense, to barring them altogether from testifying or having statements inserted into evidence in a criminal or civil proceeding.

Ellis said the discovery of the decade-old letter raises questions about the integrity of convictions in which Kienlen was a witness, thus sparking a two-pronged investigation in January into the officer and a 10-year review of cases prosecuted by the Wasco County District Attorney’s Office.

The Feb. 26 due process hearing and subsequent decision by Ellis to place the officer on the Brady list marks the conclusion of the investigation; from here, the district attorney’s office is shifting its focus to conviction integrity, Ellis said, and is recruiting help from local defense attorneys, asking them to alert the District Attorney’s office of any closed cases that may need reviewing.

The district attorney’s office is reviewing cases going back to 2011 which put Kienlen was a witness. The office has dismissed eight open misdemeanor cases so far.

Ellis said a grand jury will reconvene to hear a felony case in which Kienlen testified. The defendant in the felony case had previously been released from Northern Oregon Regional Correctional Facility in The Dalles as a result of the case review.

Kienlen’s legal counsel, Sean W. Lemoine from Portland-based Lemoine Legal Services PC, did not return a request for comment by press deadline.

The Inciting Incidents

Ellis said he had opened an administrative investigation into Kienlen’s conduct in January after he discovered a 2011 “Notice of Discipline” letter directed towards the officer in Nisley’s desk. The letter, obtained by Columbia Gorge News, documents the disciplinary measures undertaken by former Police Chief Jay Waterbury in response to revelations of Kienlen’s misconduct, which violated department policy on truthfulness.

According to the 2011 notice, Kienlen had received a written reprimand, dated Dec. 3, 2010, resulting from an incident, which revealed Kienlen was in possession of a Stinger.22 pen gun that had previously been submitted into evidence.

During questioning by his superior and a fellow officer about the incident with the pen gun, Chief Waterbury and Sergeant Steve Baska inquired about Kienlen’s attendance at a week-long conference in Eugene. According to the letter, Kienlen requested a separate hotel room because he did not want to stay with Detective Eric Macnab, to which Waterbury refused. He later requested to drive the city car to stay with a cousin who lives in Eugene, and Waterbury gave the okay.

But Kienlen did not have a cousin in Eugene, officials discovered.

Upon further discussion, Kienlen admitted he used the city vehicle and a city gas card to drive between Eugene and Salem to spend two nights with a partner, whose intimacy with the officer was questioned in the hearing and earlier was a subject to an Oregon DOJ investigation, during the conference, according to the 2011 notice.

The Oregon Department of Justice had initiated a criminal investigation into an affidavit, written and signed by Kienlen, which, according to documents reviewed by Columbia Gorge News, found that there was insufficient evidence to pursue a criminal case against the officer.

The Hearing

Columbia Gorge News obtained Ellis’ March 2 letter, sent to Lemoine and Police Chief Ashmore, detailing the decision to place Kienlen on the Brady list following the Feb. 26 due process hearing.

In the letter, Ellis said the inquiry goes beyond whether the 2011 letter should be disclosed to the defense in future prosecutions. It instead focuses on whether to classify Kienlen as Tier 1 or Tier 2 Brady.

“Tier 1 results in disqualification of a witness due to intentional and malicious conduct. Tier 2 requires disclosure of the Notice of Discipline, but would not require disqualification of a witness due to conduct intended to deceive, but not malicious in nature,” Ellis wrote in the letter.

Lemoine argued Kienlen is eligible for Tier 2, according to the letter, based on his reasoning that Kienlen’s conduct was not malicious in nature.

“However, Officer Kienlen’s conduct clearly goes beyond just a simple off-duty statement,” Ellis countered in the letter. “The Letter of Discipline expressly sets forth violations of the city police policy for truthfulness and being dishonest for the purpose of utilizing city resources, which is a direct nexus to his employment and calls for Tier 1.”

According to the letter, Ellis used a preponderance standard to come to the decision since the hearing was part of an administrative process, as opposed to the criminal standard of "beyond a reasonable doubt." Ellis wrote in the letter that he based the decision off of the preponderance of four key findings in the investigation: 1.) that Kienlen made false statements to his supervisor and fellow officer regarding his need to use a city vehicle and his whereabouts during a training; 2.) that he used city resources under false pretenses, which led him to violate department policy on truthfulness; 3.) by the language used in the 2011 Notice, Kienlen was untruthful and lacked integrity, demonstrating disregard department policies and standards; and 4.) that the discipline letter came just months after the initial written reprimand, “showing persistent dishonesty following an administrative action.”

Ellis also explained Kienlen’s act of invoking his right to remain silent during the DOJ criminal investigation could be used as an admission of guilt in an administrative proceeding, such as this.

Cases Dismissed

As previously reported by Columbia Gorge News, eight open misdemeanor cases have been dismissed as a result of the ongoing case review opened by the district attorney’s office.

Six suspects had a total of nine misdemeanor charges dismissed, including three counts of criminal driving while suspended or revoked, one count of unlawful possession of cocaine, one count of theft in the third degree, one count of theft in the second degree, one count of giving false information to a police officer, one count of reckless driving, one count of criminal trespass in the second degree, and a final count of driving uninsured, a Class B violation.

A defendant in a Class C felony case, Daniel Wood III, was released from NORCOR last month, and Ellis advised that the case will need re-indicted through the reconvening of a grand jury, not yet scheduled. Wood was charged with one felony count of unauthorized use of a vehicle, and two misdemeanor counts of public indecency and criminal trespass in the second degree.

Correction: Columbia Gorge News erroneously labeled the reason why John Foote had contacted us, which was printed as to refute Ellis' claim that Nisley "never disclosed that letter to defense attorneys in Wasco County as clear discoverable evidence to determine its value as exculpatory evidence,” which Ellis said in his March 2 announcement. Foote said he called to say Nisley did nothing wrong in making his decision.

Columbia Gorge News described Kienlen's involvement with a partner as 'romantic.' The decision, made by Ellis, labelled the relationship as going "beyond a close friendship," due to the finding that Kienlen "lied to his supervisor and to his co-workers in order to spend time with (her)... This lack of judgment — risking his career to spend time with her — is exactly the type of bias that Judge Kelly ruled was admissible impeachment evidence."