Benton Murder Case Reply

8/20/2019 Benton Murder Case Reply

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PAGE 1 – DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS(MOTION NO. 101)

Kevin Sali LLC5 Centerpointe Drive, Suite 400

Lake Oswego, OR 97035 Telephone (503) 329-3598

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IN THE CIRCUIT COURT FOR THE STATE OF OREGON

FOR THE COUNTY OF CLACKAMAS

STATE OF OREGON,

Plaintiff,

v.

JASON JAY JAYNES,

Defendant.

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Case No. CR1400775

DEFENDANT’S REPLY IN SUPPORT OFMOTION TO DISMISS

(MOTION NO. 101)

STATE OF OREGON,

Plaintiff,

v.

JASON JAY JAYNES,

Defendant.

)))

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)

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Case No. CR1201793

DEFENDANT’S REPLY IN SUPPORT OF

MOTION TO DISMISS

(MOTION NO. 101)


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I. INTRODUCTION

Defense counsel’s opening memorandum (hereinafter the “Memorandum”) sets forth

the law concerning governmental conduct that influences the testimony of a potential

defense witness, and explains why the State’s conduct in this case went far beyond the line

necessary to establish a constitutional violation.

In its Memorandum in Opposition (hereinafter the “Opposition”), the State argues

essentially as follows:

Instead of the legal rules set forth in the Memorandum, this Court should use

the rules that apply when the State seeks to use a defendant’s allegedly

involuntary confession against him, or those applicable to the allegedly

coerced testimony of a prosecution witness;

The State’s treatment of Nick Smith was entirely appropriate, both because

the investigators had powerful reasons to believe that Nick was lying to them,

and because they at no point exerted any inappropriate influence on him; and

Finally, even if the initial treatment of Nick by the Canby detectives was

overly aggressive, from that point onward the other investigators treated Nick

politely, respectfully, and without pressure—so much so that any lingering

effects from the Canby detectives’ earlier conduct completely disappeared.

On each one of these points, the State is flatly wrong.

First , there is no legal basis for the State’s proposed shift to a different legal

framework. The present motion is not based on some novel, untested legal theory requiring

this Court to cast about for the closest legal analog. On the contrary, as outlined in the

Memorandum, there is a large, well-established body of case law applicable to the precise


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situation before the Court. That, and not the State’s proposed alternative, is the legal

framework governing this motion.

Second , the State’s herculean efforts to find something supporting the conclusion that

Nick was initially lying came up completely empty. Every time Nick was asked a question

by the Canby detectives, he answered promptly, forthrightly, and accurately. As set forth

below, the State’s attempted portrayal of Nick’s initial answers as evasive or deceptive

appears to be based largely, as it was back in 2011, on a series of facially obvious mistakes

in interpreting Nick’s time records.

Third , far from being curative, the post-Canby portion of the Nick Smith

interrogation itself went far beyond what the constitutional boundaries allow. As set forth

below, the second wave of detectives not only failed to retract or withdraw any of the Canby

detectives’ earlier threats, lies, or accusations, but themselves subjected Nick to a grossly

excessive process—including sixteen hours of interrogation, over two consecutive days, on

the basic question of whether Mr. Jaynes had ever left the area during his May 28 shift. The

fact that this is presented as the good part of the State’s investigation shows how truly

excessive the admittedly “aggressive” part was.

In the end, the State’s Response does nothing to improve the picture before the

Court. If anything, that picture is now worse. The investigators’ now-conceded lies to Nick

Smith, coupled with the additional evidence discussed below, demonstrate that the complete

story is even more troubling than it initially appeared. And the most disturbing aspect of all

of this may be CCDA’s vigorous endorsement of the tactics used in this case—an

endorsement that will send an unambiguous message to officers working on present and

future cases in this county.


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II. ANALYSIS

A. The State’s Response Largely Ignores the Applicable Legal Standard.

1. The State Focuses on the Wrong Legal Rules.

The State focuses virtually all of its legal argument on the following: (1) the

voluntariness analysis that applies when the State seeks to use a defendant’s own statements

against him; and (2) the analysis that applies when a defendant alleges that a prosecution

witness’s testimony is the product of governmental coercion.1

But the State’s extensive discussion of these rules entirely misses the point. As set

forth in the Memorandum, the present motion is based on the State’s interference with a

witness who would otherwise have provided testimony favorable to the defense. For

convenience, this will be referred to herein as a “ Morrison motion,” after one of the leading

cases on this issue. A Morrison motion is governed by a legal framework entirely different

from those discussed at length by the State.

Accordingly, the vast majority of the State’s legal contentions and characterizations

are simply irrelevant. The issue before this Court is not , for example, “whether, because of

investigators’ conduct, Nick Smith’s trial testimony will be involuntary, rendering the trial

so fundamentally unfair as to violate the defendant’s right to due process.”2 Whether or not

that would the appropriate analysis in a voluntariness or coercion motion, it has no bearing

on a Morrison motion.

Instead, as set forth in Defendant’s opening memorandum, and as uniformly

recognized by appellate courts in Oregon and elsewhere, the key questions relevant to a

Morrison motion are: (1) whether the State treated the witness with “strict neutrality”; and

1 See, e.g., State’s Mem in Opp to Def’s Mot to Dismiss (“Opp”) at 25-42.

2 Opp at 38.


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(2) if not, whether the State’s influence had “some effect” on the content or manner of the

testimony the defendant will be able to present at trial.3

2. The State’s Sole Effort to Distinguish the Governing Case Law Is

Entirely Without Legal or Logical Support.

With respect to the legal framework that does apply to Morrison motions, the State

makes only one attempt to distinguish this case from the broad body of case law cited in the

Memorandum. According to the State, that case law applies only to improper influence that

occurs “during, or immediately preceding, trial,”4 and “does not extend to police interviews

and interrogations of witnesses conducted years earlier.”5

This argument is entirely without legal support. The State cites no case from the

correct line of authority that even implicitly supports its proposed distinction, and in fact the

applicable case law directly contradicts the State’s position.

In United States v. Heller ,6 for example, the improper influence by law enforcement

agents took place several years before the defendant was even indicted , much less brought to

trial.7 The Eleventh Circuit had little difficulty unanimously reversing the defendant’s

3 See Mem at 30-42. The separate issues referenced by the State are not presently beforethis Court because Mr. Jaynes’s motion is based on a legally distinct theory and seeks relief

that is in multiple ways distinct from that typically sought in motions brought under the

theories discussed in the Opposition. Should the present motion be denied in part or in full,Mr. Jaynes reserves the right to file a separate motion on that independent basis at a later

date.

4 Opp at 32.

5 Opp at 34.

6 830 F2d 150 (11th Cir 1987).

7 See id. at 153 (describing the interactions in July of 1979). The case was indicted in 1982,

as indicated by the district court case number, No. 82-00327-CR-DAVIS, and by mediaaccounts. See, e.g., Robert D. Hershey Jr., A ‘$500,000 Apology’ From the I.R.S., N.Y.Times, Feb. 9, 1994, available at http://www.nytimes.com/1994/02/09/business/a-500000-apology-from-the-irs.html.


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conviction on Morrison grounds, and did not even consider the time lapse worthy of

mention.

Indeed, when the appellate court issued its opinion on September 29, 1987—more

than eight years after the improper influence at issue—it noted that even as of that time,

“[t]he conditions under which [the defendant] may be retried, i.e., the steps necessary to

alleviate the effects of the government’s misconduct, is a difficult problem which will have

to be addressed on remand.”8 As noted in Mr. Jaynes’s opening memorandum, this

“difficult problem” appears to have proven insurmountable, as the government ultimately

acknowledged that it could not proceed on remand and dismissed the case.9

The State’s attempted creation of a de facto statute of limitations for improper

influence claims finds no more support in logic than it does in the case law. As set forth in

the Memorandum, a criminal defendant is guaranteed the opportunity, “at least on a par with

that of the prosecution,”10 to “present [his] version of the facts as well as the prosecution’s to

the jury so it may decide where the truth lies.”11

This has consistently been held to include the freedom from any improper

governmental influence that could affect the content, tone, or persuasiveness of the witness’s

testimony.12 In other words, when a defendant has a witness available to testify in his favor,

8 Heller , 830 F2d at 154 n 6.

9 See Mem at 54.

10 United States v. Morrison, 535 F2d 223, 226 (3d Cir 1976) (quoting Western, TheCompulsory Process Clause, 73 Mich L Rev 71 (1974)).

11 Washington v. Texas, 388 US 14, 19 (1967).

12

See, e.g., State v. Huffman, 65 Or App 594, 602 (1983) (describing the standard as beingwhether there is “some effect on the witness’ [sic] testimony, at least when governmentconduct alleged to have interfered with the defendant’s ability freely to present witnesses in

his favor is not outrageous”); State v. Pena, 175 NW2d 767, 768 (Mich 1970) (in reversingconviction based on governmental influence on potential defense witnesses, noting that


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that defendant has the constitutionally guaranteed right to the full persuasive value of that

witness’s testimony—whatever that may be for any particular witness—with the State’s

lawful response being limited to the traditional tools of cross-examination and the

presentation of contradictory evidence.13

For the State’s present position to be correct, it would have to be the case that after

some passage of time following improper influence, the effect of that influence necessarily

dissipates to the point that the content, tone and persuasiveness of the witness’s testimony

are restored to where they were originally.

There may be situations in which the passage of time, along with other

circumstances, sufficiently purges the taint of improper governmental influence. If so, this

would be a highly fact-specific inquiry, and would depend on what happened in the

intervening time. Even in the coercion/involuntariness line of cases relied upon by the

State—which, again, do not govern this Morrison motion—courts, contrary to the State’s

suggestion, have not held that the passage of time per se removes the taint of any improper

government conduct. Instead, the focus is on “the passage of time between [the improper

conduct] and [the witness’s] trial testimony, and whether intervening circumstances

sufficiently insulated his testimony from the effect of the prior coercion.”14

“[t]he manner of testifying is often more persuasive than the testimony itself”); UnitedStates v. Thomas, 488 F2d 334, 336 (6th Cir 1973) (noting the “obvious and considerabledifference between the free and open testimony anticipated of a voluntary witness and the

perhaps guarded testimony of a reluctant witness who is willing to appear only at the

command of the court”).

13 See, e.g., Pena, 175 NW2d at 768 (“A prosecutor may impeach a witness in court but hemay not intimidate him—in or out of court.”).

14 Williams v. Woodford , 384 F3d 567, 595 (9th Cir 2002) (emphasis added).


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In the legally distinct Morrison context, the possibility of a purported “cure” may or

may not be a basis to defeat a defendant’s motion. Courts in that line of cases have been

reluctant to find that prosecutors’ or trial courts’ curative measures were sufficient, possibly

because of a recognition that a quite different dynamic exists in this context.15 Regardless,

even assuming that curative efforts or circumstances may sometimes suffice to defeat a

Morrison motion, nothing of the sort took place here, and in fact what did happen made the

situation even worse—as set forth in detail infra at Part II.B.8.

B. The Factual Picture Is Now Even Worse Than It Initially Appeared.

1. The State Concedes that the Canby Detectives Repeatedly Lied to NickSmith.

At the outset, it is worth noting a pertinent fact that has always been suspected but is

now conceded. As the transcripts submitted with Mr. Jaynes’s motion demonstrate, in their

second interview of Nick Smith the Canby detectives told Nick not only that Mr. Jaynes was

in custody but also that he was directly contradicting Nick’s account, and used this as part of

their tactic to pressure Nick into confirming their theory:

MEAD: Here’s the thing. He’s in custody, he has not

been let loose, he’s singin’ like a bird and he’stelling us you’re leaving stuff out. Now here’sthe difference, you better start telling the truth

or you’re gonna get wrapped up in this where if

you’re just a witness and you just saw a coupleof things, I want to know what those are. I

don’t want any more crap or lies.16

15

See, e.g., United States v. Thomas, 488 F2d 334 (6th Cir 1973) (reversing despite curativeefforts including a governmental assurance that the witness at issue would not be prosecuted, and the witness’s expressed willingness to testify pursuant to a subpoena).

16 Aff of Kevin Sali in Supp of Def’s Mot to Dismiss (“Sali Aff”), Ex 1 at 25.


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The “in custody” part of this statement was, of course, false. As to Mr. Jaynes’s

supposedly contradicting Nick’s account and telling the detectives Nick was “leaving stuff

out”—this has always seemed suspicious, as these alleged statements appeared nowhere in

the reports or transcripts of the interrogations of Mr. Jaynes. The State now concedes that

these too were lies.17

Because of these lies and the other tactics used, after the Canby detectives had

finished with Nick he was under the following impressions:

That the detectives investigating this murder case clearly believed he was

lying;

That he risked becoming “wrapped up in this”—that is, entangled as not a

witness, but (in the State’s own words) “implicated in a murder”18 —if he

continued saying Mr. Jaynes had never left during his May 28 shift; and

That Mr. Jaynes had been arrested for the murder and was giving

investigators information that contradicted Nick’s account.

2. The Supposedly “Good” Portion of the Nick Smith Interrogation WasNot, in Fact, Very Good.

In its Opposition, the State admits that the Canby detectives’ tactics were “overly

aggressive,”19 but holds up the subsequent interrogations by Detectives Sudaisar, Edwards

and Miller as having been “nice, polite and respectful,” and otherwise entirely proper.20 In

fact, the State’s position appears to be not only that these latter detectives’ approach was

appropriate, but that their combination of “time, peace, patience, a distraction-free

17 See Opp at 19.

18 Id. at 30.

19 Id. at 48.

20 Id. at 43-44, 48.


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environment and respect”21 was sufficient to extinguish any lingering effects from the earlier

phase so that Nick felt entirely free to give whatever account he believed to be true.

Does the State’s characterization match the evidence?

a. As of June 6, 2011, Detective Sudaisar and Others Were AlreadyWorking with the Canby Detectives in a Closely CoordinatedInvestigation of Mr. Jaynes’s May 28 Whereabouts.

To begin with, it’s simply inaccurate to attempt to distance the supposedly “good”

set of detectives from the efforts of the admittedly “aggressive” Canby interrogators. In

fact, the various detectives involved in this case were working together in a closely

coordinated investigation of Mr. Jaynes’s May 28 whereabouts.

On June 6, Mead and Scharmota’s first discussion with Nick Smith was from 6:10 to

6:36 pm.22 At this very time, Detective Sudaisar was in the midst of interrogating Mr.

Jaynes. When Mr. Jaynes repeatedly told Sudaisar he was at work on May 28, 2011,

Sudaisar shut him down, telling him to “forget about the alibi.”23

This statement was made at approximately 6:37 pm. At this time, Sudaisar had no

evidence whatsoever contradicting what Mr. Jaynes was telling him about his work

schedule. Indeed, at this precise time his colleagues were gathering evidence fully

supporting what Mr. Jaynes was saying. This included Chevron records showing Mr.

Jaynes’s shift that day, and Nick (so far) confirming that Mr. Jaynes had been at work and

had not left during his shift.

21 Id. at 44.

22

See Sali Aff, Ex 1 at 1, 22.23 This June 6 interrogation of Mr. Jaynes is memorialized in a recording. With respect to

all references in this Reply to that interrogation, at the hearing defense counsel will either play the recording or ask the respective witnesses to confirm the pertinent statements.


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The detectives appear to have been giving each other detailed updates and

coordinating their efforts. For example, Detective Sudaisar was joined by Lake Oswego

Detective Lee Ferguson for the June 6 interrogation of Mr. Jaynes, which lasted from 4:15

pm to approximately 8 pm. The recording of that interview depicts Ferguson taking a phone

call at approximately 7:03 pm—about half an hour after the first Nick Smith session had

ended. During that call Ferguson makes the following statements:

Right. Yeah, what—yeah. What he told us—what he told us sofar was that he only got one ten-minute break that day, and he

went to McDonald’s and had a chicken sandwich on his ten-

minute break, didn’t take a lunch break, nothing. They don’tgive them lunch breaks, or that he didn’t take one that day.

And so, that’s what he told us, but he’s beginning—we’re beginning to pick up the pace a little bit here. And he’s—yeah,

he’s hopefully getting to where he’s to that point.

(Pause)

Okay. That was that—is that that Nick guy, or whatever his

name is?

(Pause)

Right. Okay.

(Pause)

Right, okay. All right.

And so—but—so I mean, it’s interesting that he said the samething that he did, because he said ten-minute break at

McDonald’s. I mean that’s—yeah, so—

. . . .

No, that’s wonderful information. Okay. Thanks, Sir.


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In short, there is no evidence that the Canby detectives were somehow “going rogue”

in a separate investigation unknown to and unmonitored by the other detectives. This was a

closely coordinated effort from the outset, and everyone—including the “good” detectives—

appears to have known exactly what was going on at all material times.

b. During the “Good” Part of the Investigation, the Detectives Do

Nothing to Alter the Impressions Created by the Canby

Detectives, Then Interrogate Nick Smith for 16 Hours Over Two

Consecutive Days.

When the second set of interrogations began on June 9, none of these three

investigators ever made any effort to retract or undo the Canby detectives’ threats,

accusations or lies. Accordingly, throughout the entire series of interrogations Nick never

had any reason to reconsider any impressions created by the Canby detectives regarding the

State’s view of his account or the consequences that could flow from sticking to that

account.

And these later interrogations were themselves far beyond the legal boundaries

described in Mr. Jaynes’s opening memorandum.

The day on which Nick Smith finally changed his account and told the detectives

that Jason had left during his May 28 shift was June 9, 2011. On that day, Detectives

Sudaisar and Edwards picked him up at a Portland location at 1:37 pm.24 They took him to

the Portland Police Bureau Central Precinct, interviewing him during the ride.25 They

arrived at PPB, where Detective Miller began an unrecorded pre-polygraph interview

sometime between 3 and 4 pm.26 This interview apparently lasted several hours, and was

24 See Sali Aff, Ex 1 at 102.

25 See id. at 41-74.

26 Id. at 76, 103.


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followed by the highly questionable polygraph examination described in the Memorandum

(more about that infra). Then another unrecorded interview lasting several more hours, until

10:38 pm, with the detectives then dropping him off at home around 11 pm.27

That means that the detectives’ June 9 interrogations of Nick Smith, which

culminated in the changed account that is the subject of this motion, lasted more than nine

hours.

Nine hours.

And they still weren’t done. They brought him back for a follow-up the next day,

this time spending at least seven more hours with him.28 That’s sixteen hours of

interrogation over two days.

Nick wasn’t being asked to dredge up long-suppressed memories from some time in

his past, or to re-create from memory a complex series of murky, nuanced events. He was

being asked whether his sole co-worker had recently left work for about an hour during a

shift with no explanation, leaving him to man the station by himself. There’s a

straightforward answer to that question, and Nick gave it—repeatedly.

c.

The Governing Law Did Not Permit the Detectives to Do What

They Did—Even If They Thought Nick Was Lying.

Of course, the “good” detectives clearly thought Nick was lying. Did that give them

license to keep asking, and asking, and asking—for nine hours the first day, then another

seven the next?

27

Id. at 109.28 See id. at 113 (report stating that Edwards and Sudaisar picked Nick up “at about 1:00 pm”); id. at 99 (report stating that Detective Miller’s “contact with SMITH” ended at“approximately 2015 hours”).


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Under the law, no. As set forth in the Memorandum, the Oregon and United States

Constitutions require “strict neutrality” in the questioning of witnesses such as Nick Smith,

and government agents may not communicate to such a witness that one account is

preferable to another. And of course, that’s what happened here. There can be no question

that the waves of investigators, both individually and collectively, made it absolutely clear to

Nick that he was expected to agree that Mr. Jaynes had left during his shift.

If from the outset the investigators had really wanted Nick’s own answer to this

question, they could have asked him. After getting his response, they could have confirmed

how certain he was. If they had a “substantial basis” to believe he was lying—which, as

discussed infra, they did not—they could possibly have added a modest exhortation to be

truthful.29 But that’s it. At that point, if the State didn’t like the account he was giving or

the testimony they anticipated from him at trial, their lawful remedies were limited to cross-

examination and the presentation of contradictory evidence.

Of course, they went further. There can be no serious dispute that as the

interrogation stretched well into night of June 9, 2011, the investigators were not in any

sense seeking information from Nick, but instead were seeking to get him to confirm an

account that they clearly preferred.

Again, this Court need not decide where in these sixteen hours the Morrison line was

crossed. That line had been crossed back on June 6 during the interviews with the Canby

detectives, and no subsequent events or communications cured the constitutional violations

that were already established at that point. The June 9 and 10 interrogations, far from curing

the initial harm as the State suggests, in fact entrenched and added to it.

29 See Mem at 35.


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3. The Polygraph Portion of the Story Is Even Worse Than It InitiallyAppeared.

As this Court knows, part of the Nick Smith story involves two highly questionable

polygraph examinations, and the State’s improper use of the purported results of those

examinations to influence Nick’s account. Mr. Jaynes’s opening memorandum set out some

of the issues with those polygraph examinations, and with the State’s bizarre delays and

about-faces in producing the corresponding records.

In its Opposition, the State makes no effort to defend the polygraph exams or the

detectives’ improper use of the purported results. This would in itself be sufficient to

remove any doubt regarding the impropriety of that portion of the investigation. And in fact,

the overall picture is significantly worse than described in the Memorandum—as to both the

examinations themselves and the State’s delays in coming forward with the associated

records.

With respect to the examinations themselves, since submitting the initial motion and

memorandum defense counsel has retained a second expert witness—Dr. David Raskin, a

prominent national expert in polygraphy and related fields—to review Detective Miller’s

work.

30

As set forth in his October 29, 2015 affidavit, Dr. Raskin was completely unable to

find any basis for Detective Miller’s alleged conclusion that Nick failed his first polygraph

exam.31

Recall: this was the conclusion that, Detective Miller told Nick, “indicated to [her]

he was not being truthful about JAYNES being at the Chevron gas station during his entire

30

The first expert consulted by the defense was former Oregon State Police polygrapherSteven Hebner, whom the defense also intends to call at the hearing on this motion.

31 See Aff of David C. Raskin in Supp of Def’s Mot to Dismiss (Mot No. 101) (“RaskinAff”) at 4-6.


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shift on the night of May 28th.”32 As set forth in the Memorandum, after expressing this

purported result to him, she continued to use it to convey to him her belief that he was lying.

She told him she “believed he was not being truthful, and did not believe he was still trying

to, ‘piece this together,’ but rather trying to stall in order to decide what he was going to tell

[her] in regard to failing the test.”33 She added that she “believed he was doubting himself

because he was not being truthful about knowing that JAYNES had left the Chevron station

at some point during his shift on the 28th.”34 And it was only after this series of statements,

backed by the supposed polygraph results, that Nick finally relented and started telling the

detectives that Mr. Jaynes had in fact “‘disappeared’ for some length of time during his shift

on the 28th.”35

But now two highly qualified polygraph experts have looked at the data that

Detective Miller (eventually) turned over, and both are completely unable to discern any

basis for her conclusion that Nick was being deceptive. On the contrary, according to Dr.

Raskin the available data indicated a “definite truthful outcome” on the initial exam with the

critical question of whether Mr. Jaynes had ever left the property during his May 28 shift,

and according to both experts (as will be demonstrated at the hearing) nothing in the

disclosed files shows any basis for Detective Miller’s supposed contrary result.

And on top of that, the story of the polygraph records is even stranger than defense

counsel initially realized. The opening memorandum sets forth the convoluted path by

which Detective Miller finally, after initially claiming that no data files were available,

32 Sali Aff, Ex 1 at 83.

33 Id. at 84.

34 Id.

35 Id.


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produced them to CCDA for disclosure to the defense.36 Upon further review of the record

of this case before the undersigned counsel was appointed, counsel has learned that at first

the State’s position was that even Detective Miller’s reports of the Nick Smith polygraphs

were nowhere to be found, with the State locating and producing them only after repeated

requests from co-defendant Lynn Benton’s defense team.

The pertinent chronology is as follows:

June 9, 2011: Detective Miller conducts a polygraph examination on Nick

Smith. She repeatedly cites her purported conclusion—that Nick’s

“responses were consistent with deception”—in telling Nick she believes he

is lying. After this discussion, Nick for the first time changes his previously

steadfast account and says that Mr. Jaynes did leave the area during his May

28 shift.

October 8, 2013: Having seen passing references to Nick Smith’s polygraph

examinations in the discovery, but not having been provided any of Detective

Miller’s reports or other documentation, Benton’s counsel writes to the State

asking for those materials.37

36 See Mem at 26-27.

37 Second Aff of Kevin Sali in Supp of Def’s Mot to Dismiss (Mot No. 101) (“Second Sali

Aff”), Ex 1 (Dec. 23, 2015 Request for Discovery Sanctions—Exclusion of State Witness

Nick Smith, from State of Oregon v. Lynn Edward Benton, Clackamas County Case No.CR1201792) at 2. The citations herein are to the document filed by the Benton defense

team. The supporting materials cited and/or referenced in that document will be provided tothis Court when available.


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November 8, 2013: A CCDA prosecutor responds in writing that “[w]e have

spoken with Detective Carol Miller who did the polygraphs in this

investigation, and everything in her possession has been discovered.”38

April 30, 2014: The State reports that Detective Sudaisar has spoken with

Detective Miller, and “no other reports/notes etc exist.”39

May 7, 2014: CCDA finally discloses that, in fact, there exist two reports by

Detective Miller documenting the Nick Smith polygraphs.40 These are

produced to the defense the next day.

July 8, 2015: Mr. Jaynes’s counsel asks CCDA for the underlying data from

the Nick Smith polygraph examinations. Having received no response,

counsel repeats this request three weeks later.41

August 4, 2015: CCDA reports that “[a]ccording to Detective Miller, [her

narrative] reports [we]re the only documents she ha[d] retained regarding this

case.”42 Defense counsel immediately responds, asking CCDA for the

detailed information underlying its stated position.43

September 16, 2015: CCDA reports that Detective Miller did in fact retain

the underlying files.44 CCDA produces these to defense counsel, who

promptly provides them to two independent polygraph experts. Both experts

38 Id. at 2.

39 Id. at 3.

40 Id .

41 Sali Aff, Exs 3-4.


43 Id. at 1.

44 Sali Aff, Ex 1 at 146-47.


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are unable to find any basis for Detective Miller’s purported conclusion that

Nick failed his exams.

What is going on here? Has this Court ever seen a stranger sequence of events

involving what would ordinarily be the routine production of a standard set of highly

relevant materials? A set that every police officer in the state would know beyond any doubt

must be maintained and preserved ?

Is it possible that Detective Miller, and/or someone else on the State’s side, realized

that there were problems with the Nick Smith polygraphs and the investigators’ use of them?

As bizarre as that might seem, is there a more convincing explanation for the laborious,

tortuous route through which these clearly pertinent documents finally came to the surface—

particularly given the fact that once they emerged, they cast a serious cloud over this portion

of the investigation? If this isn’t enough to raise an inference that something was amiss,

what would be?

It’s worth considering how this story might look if the subject was a civilian under

investigation for, for example, environmental violations or white-collar offenses. Imagine

that investigators ask the subject to produce a set of records required by law to be

maintained, and the subject responds that they don’t exist. After being repeatedly pressed,

the subject admits that, okay, the documents do exist, and produces them. He’s asked for

the underlying data that went into them—data that is also required by law to be kept. He

initially says that data is gone—then, again only after being repeatedly pressed, produces

that data as well. The investigators present that data to government experts—laboratory

analysts, for example, or forensic accountants—who are completely unable to recreate the

subject’s supposed conclusions, or to discern how he could possibly have thought that the


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data supported those conclusions. What would a prosecuting entity such as CCDA do with

that story? How would a court view it?

However intriguing such questions may be, their resolutions are not ultimately

necessary to the determination of this motion. As set forth in the Memorandum, the

polygraph portion of the story is not essential to this Morrison motion. The constitutional

line was crossed long before Nick Smith ever met Detective Miller, and the violations were

never cured. Moreover, to the extent the Court considers the polygraph portion of the story,

defense counsel need not prove that any of the detectives actually knew that the purported

polygraph result was unreliable or that their use of it to influence Nick was improper. Even

merely negligent government conduct can support a Morrison motion.45

Still, it is at least safe to say that no part of the polygraph story inspires any

confidence in the tactics leading to the change in Nick Smith’s account, and that story

provides ample reason to question whether something more than mere negligence was

implicated. This Court may properly take this into account in assessing the overall

evidentiary picture.

4. There Was Never Any “Substantial Basis” to Believe That Nick SmithWas Lying.

As set forth in the Memorandum, one question in the Morrison analysis is whether

the investigators had a “substantial basis” for concluding that a witness was lying.46

“Substantial” is interpreted strictly in this context, requiring something akin to “a direct

45 See State v. Mays, 269 Or App 599, 619 n 13 (2015) (noting the Ninth Circuit’s holding

that in this context a violation may be based on “the suggestion, procurement, or negligenceof the government” (quoting United States v. Bohn, 622 F3d 1129 (9th Cir 2010)), butleaving this question open).

46 See Mem at 35.


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conflict between the witness’s proposed testimony and [his] own prior testimony”;47 it is not

enough that, for example, one witness’s account differs from another’s.48 Additionally,

even a “substantial basis” to conclude that a witness is lying allows at most a modestly

enhanced warning, and investigators must still avoid improperly influencing the witness’s

account.49

A significant portion of the State’s Opposition consists of a determined effort to

prove why the investigators had a legitimate basis for believing that Nick Smith was initially

lying. This effort falls completely flat.

a. The Other Evidence Developed in the Case Did Not EstablishThat Mr. Jaynes Was Physically Absent from Work.

The State devotes much of its Opposition to laying out the evidence it had gathered

prior to and during the series of Nick Smith interrogations. Most of this evidence relates to

Susan Campbell and (to a lesser degree) Lynn Benton. For purposes of this motion, defense

counsel does not dispute that as of June 6-10, 2011, the State (obviously) had good reason to

believe that Ms. Campbell was guilty. Also for purposes of this motion, defense counsel

does not dispute that available evidence gave the State reason to suspect Lynn Benton’s

involvement.

As to Mr. Jaynes, the evidence relied upon by the State is more equivocal. The State

describes evidence allegedly indicating that Mr. Jaynes knew in advance about a plot,

47 United States v. Vavages, 151 F3d 1185, 1190 (9th Cir 1998).

48 See id. (“That [the witness’s] testimony would have contradicted the testimony of thegovernment's own witnesses does not form a sufficient basis for the prosecutor's warning.”).

49 See, e.g., State v. Gutierrez, 333 P3d 247, 248-51, 255-56 (NM 2014) (criticizing

officials’ conduct in pressuring witness even though that witness’s account differed starklyfrom her prior grand jury testimony); Berg v. Morris, 483 F Supp 179 (ED Cal 1980)(finding due process violation based on improper influence even though witness wastestifying directly contrary to prior in-court testimony).


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involving his mother and Benton, to murder Ms. Higbee;50 that, according to Ms. Campbell,

Mr. Jaynes had helped her obtain the gun used in the murder (this was later contradicted by

a separate witness, although in fairness that evidence does not appear to have been known to

the State at the time);51 that he behaved suspiciously after the time of the murder, including

possible efforts to hide evidence; that he lied to investigators in multiple respects; and that

he knew significantly more about Ms. Higbee’s death and his mother’s involvement in it

than he was letting on.

But even accepting all of that as true, and even assuming for purposes of this motion

that the evidence available to the State was sufficient to create serious suspicion that Mr.

Jaynes had some connection to the murder (or to subsequent efforts to evade detection), it in

no way established that Mr. Jaynes was the actual killer physically present at the crime

scene.

And it was that issue—Mr. Jaynes’s potential presence at the scene at the time of the

murder, which by necessity meant his absence from work at that same time—that brought

Nick Smith into this case. Investigators suspected, albeit without any particularly

compelling evidence, that a second person had assisted Ms. Campbell with the murder and

that Mr. Jaynes was that person. Having learned that Mr. Jaynes was at work that day, the

obvious step was to find out if he ever left during any time corresponding to the murder.

They asked Nick, Mr. Jaynes’s sole co-worker, who said he hadn’t. No evidence gathered

50 The State’s discussion of this issue includes references to a text message sent by Mr.

Jaynes to his fiancée Heather Smith. This text message has been described, quoted and

characterized in several different ways by several different people throughout the course ofthis case. For the record, according to the discovery the text was sent on April 26, 2011, and

read: “I could make 5 grand but i would have to off someone.”51 According to the discovery, Ms. Campbell later indicated that she had in fact obtained that

weapon through a man named John Ragsdale, who on February 17, 2012 confirmed this.See Second Sali Aff, Ex 2 at 1-6.


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by the State up to that point provided any “substantial basis” to believe that Nick was

lying.52

b.

Nick Smith’s Supposedly “Deceptive” Behavior Was Nothing ofthe Sort.

Nor did any such “substantial basis” emerge during the initial contacts with Nick.

The State strives mightily to characterize Nick’s initial responses to the Canby detectives as

showing deception and evasiveness. This characterization is ludicrous.

The first part of Nick’s alleged “deception,” according to the State, was his supposed

evasiveness in answering questions about his work history with Mr. Jaynes. According to

the State, Nick first fails to mention Mr. Jaynes when asked who he has worked with, then

attempts to minimize the number of shifts they have shared.53 Back in 2011, the Canby

detectives seized on these points to suggest to Nick that he was being deceptive; now, more

than four years later, the State persists in this claim. Does it have any merit?

Contrary to the description in the State’s Opposition, the actual question that

Detective Mead asked Nick at the outset of the interview was: “who did you work with

52 It is worth noting that, to the extent that the State’s evidence circa June 2011 was derivedfrom Susan Campbell, the State by that time was already on notice regarding issues with her

reliability. The full scope of the problems with Ms. Campbell and her testimony may not

yet have been known. Still, the State had the clear evidence of her own participation in themurder, hours of rambling statements from her, and a June 2, 2011, letter from her attorney

telling the State that she had “substantial medical and psychiatric issues.” See Second SaliAff, Ex 2 at 7-8. Accordingly, even if Ms. Campbell had provided direct evidence contraryto Nick Smith’s account (which she had not), and even if the contrary account of another

witness could constitute a “substantial basis” for Morrison purposes (which it does not),evidence derived solely from Ms. Campbell would have to be viewed with enhancedscrutiny.

53 See Opp at 14.


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most of the time on your shift?”54 At that time, Nick had worked at the station for about nine

months,55 and based on Chevron records appears to have shared a total of three shifts with

Mr. Jaynes.56 Accordingly, when asked whom he had worked with “most of the time,” he

did not include Mr. Jaynes. Given that this omission was substantively, mathematically, and

in every other conceivable way absolutely accurate, it was hardly a legitimate basis for

suspicion.

To the extent that the detectives genuinely considered Nick’s answers suspicious, it

was apparently the result of their own erroneous reading of the Chevron documents. This is

clear from Scharmota’s subsequent statement, later in the interview, that “looking at [Mr.

Jaynes’s] schedule you’ve been working with him every Friday, Saturday and Sunday night

for the last 3 weeks,” which “concerns [him] a little bit” because “[i]t’s like you were trying

to hold something back here.”57 The State’s Opposition cites this as additional evidence of

evasiveness and deception, noting that “Smith acts surprised at this fact.”58

If in fact Nick was “surprised,” there was a good reason. Scharmota was simply

wrong. As noted above, based on Chevron records Nick and Mr. Jaynes appear to have

shared three shifts as of the time of that interview.

If this seems like an excessive amount of time spent discussing work schedules at the

Gladstone Chevron in 2011, counsel apologizes. That said, the State has seized upon Nick’s

54 Sali Aff, Ex 1 at 1 (emphasis added).

55 See id.

56 According to Chevron records, Nick and Mr. Jaynes worked the p.m. shift together on

May 27, 28, and 29, 2011. On two other occasions their shifts briefly overlapped—once for

about a half-hour during Mr. Jaynes’s “training” shift on May 10, and then for about fifteen

minutes on May 22. See Sali Aff, Ex 1 129-138; Second Sali Aff, Ex 2 at 9-12.


58 Opp at 17.


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alleged incompleteness in answering scheduling-related questions as supporting the Canby

detectives’ belief that Nick was being deceptive. This Court need not rule on the highly

debatable point of whether actually inaccurate answers to such questions might constitute a

“substantial basis” for suspecting deception, because Nick answered every question entirely

accurately. Indeed, far from being a basis to suspect deception, these completely unfounded

accusations of deception may well have added to the overall impropriety of these detectives’

conduct.

Remarkably, this appears to be the best the State can do in its effort to paint Nick as

having initially been deceptive and evasive. Its remaining stabs at this issue are even less

convincing. For example, the State’s Response emphasizes that only in the second interview

did Nick “tell[] the detectives that [Mr. Jaynes] ha[d] admitted to smoking pot.”59 Although

this information is hardly earth-shattering and was not remotely responsive to any question

the detectives had asked, the State now somberly notes that “this is information Smith has

not before disclosed because, ‘It didn’t seem relevant at the time.’”60

In short, neither Nick Smith’s answers to the detectives’ questions nor anything else

in the course of the investigation gave the State a “substantial basis” to believe that Nick

was lying. Counsel respectfully asks this Court so to find after the hearing on this motion.

5. The State’s Purported Explanations for Why Nick Smith SupposedlyLied in His Initial Interrogations Make No Sense.

Late in the evening of June 9, 2011, well into a nine-hour, virtually unbroken string

of interrogations, Nick—after having finally given up and agreeing that Mr. Jaynes had left

59 Opp at 19.

60 Id.


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during his shift—was then asked why he initially told the Canby detectives Mr. Jaynes

hadn’t left.

Relying on various citations from the detectives’ reports of these unrecorded

discussions, the State advances two, at least partially inconsistent, explanations for Nick’s

initial account. One is that Nick “simply want[ed] to make sure he ha[d] all of the facts

straight before telling the investigators what he kn[ew] because he d[id] not want to make a

mistake and give false information”;61 in other words, he was “sorting out what exactly

happened that night,”62 and “ha[d] to put all the puzzle pieces together to see the whole

picture before he w[ould] tell somebody what he s[aw] and that is why he did not offer these

details until now.”63

The other is that Nick “did not like Det. Mead’s aggressiveness and

intentionally provided false information to him as a result.”64

But this makes no sense. The first critical question and answer shows up ten pages

into the transcript of the first interview on June 6:

MEAD: So 100% he did not leave Saturday.

SMITH: He did not leave during his shift at all.65

That’s not evidence of a mind “sorting out what exactly happened that night,” and

it’s not the answer of someone trying to “put all the puzzle pieces together.” It’s a clear,

straightforward answer to a clear, straightforward question.

And as of this point, the Canby detectives had done nothing remotely aggressive

with Nick. On the contrary, as the State itself emphasizes, so far they were treating him

61 Id. at 45.

62 Id. at 25.

63 Id. at 27-28.

64 Id. at 43; see also id. at 27-31 (setting forth this theory).



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“kindly.”66 It was only after Nick repeatedly stated that Jason had been at work all day that

the detectives became “aggressive”—increasingly so. (Indeed, that is in large part the basis

for the present motion—the State violated its duty of “strict neutrality” by dramatically

changing its approach to this witness who was not supporting its case theory.)

Accordingly, neither of the State’s two theories—that Nick was withholding

information while he tried to piece the story together in his head, or that he was lying to the

Canby detectives as a reaction to their aggressiveness—stands up to even minimal scrutiny.

Nor, of course, does anything in the State’s Opposition explain Nick’s steadfast repetitions

of his original account to the “good” detectives on June 9, or what the State itself admits was

his positively enthusiastic attitude towards the initial polygraph examination at a time when

he was still maintaining his original account :

As for the polygraph examination he was about to take, was he

intimidated? Frightened? Anxious? No. Smith tells thedetectives, “I’m excited to do it because I’ve never done it. I

like new things.” In fact, he is surprised the other officers

didn’t just ask him to do a polygraph test right after theirmeeting.67

Admittedly, the State cites Nick himself as the source of its two theories, claiming

that he offered both to the detectives somewhere during the unrecorded evening portion of

the series of interrogations. Assuming that Nick made the statements attributed to him, any

fault lies not with him but with his interrogators. After finally agreeing with the account the

detectives clearly wanted him to give, Nick obviously needed some explanation for why he

had stuck so steadfastly and for so long with the polar opposite story. These explanations,

66 Opp at 14.

67 Id. at 23.


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despite their obvious flaws, may have seemed as good as any—particularly if assisted by

suggestions offered by the detectives during this marathon unrecorded session.

6.

In Any Event, the Question Is Not Which Time Nick Was Telling theTruth, But Whether the State Treated Him with “Strict Neutrality.”

As set forth above, the State’s effort to recast this sordid story is meritless. The

evidence—particularly in light of Nick’s recently signed statement (discussed infra), and the

lack of any credible basis at any point to believe he was lying—compels the conclusion that

he was trying to tell the truth initially, and only changed his account in response to the

influence exerted on him in various forms during his numerous rounds of interrogation.

But even if this Court were to conclude otherwise—for example, that Nick’s initial

statements were false and his later ones true, or that the evidence does not resolve the issue

either way—that would not affect the ultimate constitutional analysis. The constitutional

rule is directed at all governmental efforts to influence a witness’s account, regardless of

which version of the witness’s account the court ultimately believes to have been true—

because “it is the jury’s function—not the prosecutor’s [or detective’s]—to determine the

credibility of witnesses.”68

That rule provides that, if the State finds a particular witness’s

account suspicious or unhelpful, like any other litigant its remedies are limited to

impeachment and the presentation of countering evidence.69 When it goes further and

attempts to reshape the witness’s account—whether to what it genuinely believes to be true,

or to something more helpful to its case—the line is crossed.

68 State v. Wiegers, 373 NW2d 1, 11 (SD 1985).

69 See, e.g., Pena, 175 NW2d at 768 (“A prosecutor may impeach a witness in court but hemay not intimidate him—in or out of court.”).


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What if, instead of a live human witness, Mr. Jaynes’s alibi evidence had been a

surveillance video from Chevron showing him at work throughout his shift? Would it have

been appropriate for the State to destroy that video, or to edit Mr. Jaynes out of it?

According to the State, at least since June 6, 2011, it has been clear that Mr. Jaynes

murdered Debbie Higbee. So he obviously couldn’t have been at the Chevron station during

the time of the murder, and any evidence suggesting that he was must therefore be

unreliable. After all, video footage can be falsified or tampered with, and that must be what

happened here. And letting that video footage get out could muddy the waters of this

otherwise open-and-shut case. A juror seeing that footage might not agree with the State’s

characterization of Mr. Jaynes’s April 26 text message, and might even question the

“heroic” testimony of jailhouse informant Craig Smith.70

Notwithstanding these pragmatic concerns, no one would suggest that it would be

lawful for the State to alter or destroy that video. Was it any more lawful for the State to

repeatedly threaten, lie to, and accuse Nick Smith, and then interrogate him for sixteen hours

until they finally agreed on an account they could go forward with?

It wasn’t—not under the constitutional standards. The Oregon Supreme Court has

explicitly recognized that witness accounts, like physical evidence, are susceptible to

contamination through sources such as investigator influence.71 And the consistent theme of

the Morrison line of cases is that the State has no more license to interfere with witness

accounts than it does to alter any other type of evidence.

70 See Opp at 1.

71 See State v. Lawson, 352 Or 724, 748 (2012).


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7. There Can Be No Dispute That the State’s Unlawful Conduct Had“Some Effect” on the Testimony that the Defense Will Be Able to Presentat Trial.

The State’s Opposition suggests that it is still an open question whether in fact the

State’s conduct has had any effect on Nick Smith’s value to Mr. Jaynes as an alibi witness.

It is not.

First, in its analysis of this part of the legal framework the State yet again misstates

the legal standard. Although the State poses the question as whether Nick Smith will be

“unavailable for trial,”72 courts in Oregon and elsewhere have unequivocally held that that is

not the proper question. Instead, the relevant question is whether the State’s improper

conduct had “some effect” on the testimony the defendant will be able to present at trial.73

As multiple courts have recognized, this includes an analysis of not only the content, but

also the tone and manner, of the witness’s testimony.74

Based on the sequence of events detailed in the Memorandum, there can be no

serious dispute that the State’s conduct has had a material adverse effect on the evidence Mr.

Jaynes will be able to present at trial. Nick Smith, after the State’s unlawful tactics,

presented a new account that was not only stripped of all exculpatory value but indeed had

become powerfully incriminating. He gave this account not only to the investigators, but

also, under oath, to two separate grand juries—thus subjecting himself to a non-

immunizable risk of perjury charges should he ever return to his initial account.75 No one

72 Opp at 1.

73 See Mem at 36-38.

74 See supra note 12.

75 See ORS 136.619(1) (even an immunized witness “may nevertheless be prosecuted or

subjected to penalty for any perjury, false swearing or contempt”).


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can seriously contend that he could simply “shake this off” and present the untainted,

confident testimony he was clearly prepared to give before the State stepped in.

And lest there remain any doubt, along with this Reply defense counsel is submitting

a report, signed by Nick Smith himself, memorializing his most recent statements to defense

investigator Pamela Rogers. In this statement, Nick confirms, among other things, that

while being interviewed he “wanted to tell the truth and thought he was telling the truth the

entire time.”76 He also confirms that he “has no idea why he didn’t pass” his polygraph

examination.77 Notably, this interview took place the same day the State finally produced

the polygraph data, such that at this time Mr. Jaynes’s defense team did not yet know the full

scope of the problems with Detective Miller’s examinations.

Finally—and importantly, for purposes of this aspect of the Morrison motion—Nick

stated that “he honestly doesn’t remember whether Jason ever left the Chevron station, nor

does he recall what he told the officers at the end of the day.”78 This stated lack of memory

is entirely consistent with the scientific evidence on how an interrogator’s conduct can

genuinely affect a witness’s actual memory,79 and demonstrates beyond any remaining

doubt that any testimony Mr. Jaynes might be able to present at his trial will be dramatically

different than what Nick would have offered absent the State’s improper conduct.

76 See Aff of Pamela Rogers in Supp of Def’s Mot to Dismiss (Mot No. 101), Ex 1 at 2.

77 Id.

78 Id.

79 See Sali Aff, Ex 7.


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8. Nothing in the Intervening Years Has Cured the Taint from the State’s

Constitutional Violations.

As noted above, the State contends that whatever may have happened back in 2011,

there are no lingering effects from that period and Mr. Jaynes’s right to the full benefit of

Nick Smith’s testimony has been fully restored. On this point too, the State is wrong.

Indeed, on the contrary, the State’s conduct in the months and years following the initial

influence made the situation worse, not better.

After the initial contacts in June of 2011, neither the investigators nor the CCDA

prosecutors took any steps whatsoever to undo the damage caused by those contacts. No

one, for example, acknowledged to Nick that any of his initial treatment was improper and

would not be repeated. No one took any steps to assure him that the State only wanted his

honest, truthful account regardless of whether it matched the State’s case theory. And no

one ever admitted to Nick that the Canby detectives had been lying to him when, in an

attempt to challenge Nick’s account, they told him Mr. Jaynes was contradicting his story.

To recap, from the summer of 2011 onward, Nick believed—correctly—that the

State, far from exhibiting “strict neutrality,” was deeply desirous of his saying that Mr.

Jaynes had left his shift on May 28, 2011. He clearly understood—with substantial

justification—that sticking to an account inconsistent with the State’s theory could cause

significant adverse consequences to him. He believed—incorrectly, because of the Canby

detectives’ now-admitted lies—that the State had substantial grounds to believe that he was

lying because his statements differed materially from Mr. Jaynes’s alleged admissions.

Finally, he believed—incorrectly—that the detectives had additional grounds to believe he

had initially been lying based on what they claimed was a reliable polygraph result.

This was the state of things as of November 2012. At that time the State, far from

taking any corrective measures, took a step that irrevocably extinguished the possibility of


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III. CONCLUSION

“Bullshit. Don’t. Forget about the alibi.”

Detective Scott Sudaisar, to Jason Jaynes, June 6, 2011.

“Now, let’s talk about Nick Smith. Nick Smith initially was uncooperative. Or—and fromthe police perspective, uncooperative.”

CCDA prosecutor, in court, April 1, 2015.81

These two quotes succinctly sum up the State’s attitude towards Jason Jaynes’s

crucial alibi witness. By June 6, 2011, little more than a week into its investigation, the

State had decided that Jason Jaynes had murdered Debbie Higbee. Nick Smith’s insistent

account that Mr. Jaynes was at work at the time was not only brushed aside, but actively

broken down and reshaped to conform to the State’s theory. As far as the State was

concerned, Nick—who submitted to one interrogation after another, for a total of more than

sixteen hours over three separate days—was nonetheless “uncooperative” until he finally

gave in and agreed with his interrogators’ view of what had taken place.

The State’s insistence in holding fast to its initial theory in the face of contrary

evidence was striking. That said, by itself that insistence may not have crossed

constitutional lines as long as the full evidentiary mosaic remained uncorrupted and Mr.

Jaynes was able to exercise his vital right to present this powerfully exculpatory evidence at

trial.

But, as the record already makes clear and as the evidence presented at the hearing

will make still more so, the State did not stop there. Instead, State agents repeatedly exerted

their influence to get Nick Smith to change his account, and in the end they succeeded. In

doing so, they violated the Oregon and United States Constitutions.



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