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November 29th, 2006 Ian Demsky | News Stories
 

Two Crimes, Two Punishments

Who should get more prison time: an accomplice in a robbery or a drunken driver in a fatal crash?

     
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More than a decade ago, Oregon launched a tough-on-crime reform intended to put the blindfold back on Lady Justice.

Ballot Measure 11, passed by state voters in 1994 and reaffirmed by them in 2000, promised to stop softhearted judges from being too lenient with dangerous criminals and to bring consistency back to the law.

Measure 11 created mandatory minimum sentences for a number of violent crimes. If you were convicted of murder, it got you 25 years. Attempted murder, seven and a half years. If you raped a child, 25 years—no matter what side of the tracks you were from or who the judge was.

It was an extraordinary change—one that most Oregon judges hated because it prevented them from lowering the sentence if they felt the circumstances of the case warranted it.

Measure 11 supporters proudly point out that between 1995 and 2005, Oregon's violent crime rate dropped by 45 percent. While it's unclear how much Measure 11 contributed to the decline, lengthened sentences have made prison building into one of Oregon's biggest growth industries. In 1995, Oregon's prisons could hold about 9,000 people. Today, our capacity is close to 13,000. And by 2012, we're slated to need up to 18,200 beds.

Sitting at a Starbucks in Southwest Portland last week, Steve Doell, head of Crime Victims United, said that without Measure 11 there would have been tens of thousands of additional violent crime victims, "maybe even someone in this room."

"To the people who say violent offenders should get probation or a couple of years in prison, I say, 'We've been down that road. It's a road to nowhere,'" Doell says.

No one would dispute that Measure 11 has had a profound effect on public safety in this state. But 12 years later, it's clear that the consistency in sentencing that supporters rave about has its limitations, too.

"All judges in Oregon, no matter how soft, must impose the minimum sentence for a violent crime when a jury has found the criminal guilty," proponents of the measure argued in the 1994 Voters' Pamphlet.

But there is a fair amount of evidence that the blunt instrument of Measure 11 can occasionally be unfair—that it can lead to sentences that are both seemingly too harsh and also too lenient.

What follows are two recent examples that some feel illustrate both:

* Zack Driver, a 15-year-old kid from a working-class neighborhood near Mount Tabor. His crime? He sat in a car while a buddy robbed a Lents convenience store of less than $150. His sentence? Seven and half years, a term set in stone by Measure 11.

* Cory Sause, a 26-year-old student at Lewis & Clark Law School, from Lake Oswego. Her crime? With twice the legal limit of alcohol in her blood, Sause drove her car head on into another, killing a 21-year-old George Fox University student and severely injuring his 14-year-old brother. Her sentence? At most, five years in prison, though she has a good chance of serving less than three.

Even now, a year and a half after the April 2005 robbery that cost him the remainder of his teenage years, Driver seems more like a kid than an adult.

"I look forward to being Portland's new star for Rock & Hip-Hop when I get out of this mess," Driver wrote to WW from the MacLaren Youth Correctional Facility in Woodburn. And, "Oh, man, I could play Fight Night 2 for hours and Dance Dance Revolution II until my feet get blisters."

The events that sent Driver away for more than half the time he has been alive began when he ran away from home last April and went to stay with an 18-year-old named Kenny Xiong. He knew Xiong because both their families attend the Apostolic Worship Center church in Northeast Portland.

Driver was gone from home less than a week, but that was enough time to set in motion the events that would put him behind bars until 2012.

Driver had been a troubled kid. He had been diagnosed with bipolar disorder and attention-deficit hyperactivity disorder. And, according to his mom, he was abused by a former relative as a young child.

Driver came back home when he learned that someone close to the family had died. Over a stretch of a few weeks, he also lost a grandmother and a great-grandmother.

"In less than a month he'd lost all these people that meant a lot to him," his mother, Sheila Montgomery, testified at his trial last winter. "He's had a lot of heartaches. With everything that was going on, Zack couldn't handle everything."

His stepfather and former Little League coach, Chris Montgomery, told the court: "He was very testing, very defiant. I'm the disciplinarian, the Army dude, the dad Zack didn't want in the house."

Not long after he returned home, a simple request to vacuum the floor of the family's Milwaukie bike shop touched a match to the family's gasoline-soaked emotions.

Both Driver and Chris Montgomery were hot, shoving and name-calling. Eventually, Driver's mom pinned the 220-pound teen on the couch and hollered to her husband to call the police.

She didn't want him to go to jail. "I just wanted my son to get the opportunity to go somewhere and calm down," she testified. "And me to have a chance to get him some help with everything that had been going on in his life."

On the recording of the 911 call from the bike shop, Driver can be heard bellowing in the background.

"He was cursing, saying, 'I can't stand you, let me go!'—as you heard in the tape—'I want to kick your butt. I just want to leave,'" Chris Montgomery said in court. "All kinds of swear words."

"'I'll kick your butt' is not a swear word," prosecutor Kellie Johnson said.

"In my house, it's a swear word," Montgomery replied.

When Milwaukie police showed up, officers told the Montgomerys that Driver hadn't broken any laws. Officer Thomas Garrett said they could take Driver away if he had tried to interfere with the 911 call.

"We said, 'Well, he was [interfering] then,'" his step-dad testified, conceding he didn't believe it was an accurate charge. "[Garrett] said, 'OK.' That's when he took him. We didn't care. We just wanted him in a safe place."

After being handcuffed and placed in the back of a patrol car, things really started to unravel for Driver. He was about to confess to a crime he later said he didn't do.

Driver was taken to the Clackamas County juvenile intake center, where a counselor asked him a series of routine questions. She asked him if he had every threatened anyone with a gun. Astonishingly, Driver said yes—he said he had held up a market about a month earlier, during the time he had run away from home. He told her exactly where it was located: Southeast 92nd Avenue and Holgate Street.

"There was a lot of things going on in my head," Driver later said in court. I can't pinpoint just one thing. It was overwhelming feelings."

Portland police confirmed that there had been an unsolved robbery at the Lents Park Grocery Store and Deli at that location. When two detectives questioned Driver later that evening, he led them step by step through the robbery, giving them details that matched grainy security video from the store. He told them he entered the store with a gun and made the Korean shop owner crawl to the register and open it.

Driver later changed his story, saying he lied about committing the robbery because he didn't want to be sent back home. In fact, he testified, all he had done was go into the store to see if it was empty and then wait in the getaway car.

Driver told the court the real robber was Kenny Xiong, the friend who had opened his home to the runaway. He explained that many of the details in his original confession came from Xiong's recounting of the crime. And Driver passed a polygraph about his participation in the crime, adding weight to his revised story (though the polygraph was not admitted as evidence in his trial).

The robber wore a mask and heavy coat, and the frightened shop owner, who was focused on the gun pointed at him, didn't notice much about the robber's appearance.

Convinced that he was innocent of anything more than a small role, Driver and his family rejected the deals he was offered by the Multnomah County district attorney. They decided to go to trial, knowing if he was convicted he faced a severe mandatory minimum sentence under Measure 11.

Driver's case wasn't helped by the fact that, while Xiong was interviewed by officers, he was never charged.

"I concluded there was no basis to believe Xiong was involved," Detective Rico Beniga told the court. (Xiong could not be reached by WW for comment.)

A jury, however, did believe Driver and found him guilty only of being an accomplice to the robbery, not the primary robber. But under state law, accomplices bear just as much responsibility.

If Driver had been arrested immediately after the crime and police checked the gun and found it was empty, as Driver testified, he would have faced far less prison time and, possibly, probation.

"How is it that you thought that confessing to a crime that you didn't commit—or confessing to a crime at all—was going to get you placed in foster care and not prison?" Driver's attorney, public defender Kelly Skye, asked him on the witness stand.

"Because I don't have a record and I thought that because of that and being a juvenile, they would send me somewhere else instead of prison," Driver replied. Anything, he said, not to go back home.

Prosecutors believed at the time of the trial, and still believe, that Driver was the primary robber.

Despite some initial cooperation between Driver and prosecutors, "he was not able to convince us or anybody that it was Kenny," says deputy district attorney Rod Underhill.

Even so, the judge in Driver's case, Multnomah County Circuit Judge Alicia Fuchs, seemed to indicate some frustration with the limitations Measure 11 placed on her. "It's difficult to have juveniles subject to Ballot Measure 11 in and of itself, but that is a legislative mandate I need to follow because that is what the law is," she said during Driver's sentencing hearing.

Last month, Driver's public appellate attorney filed paperwork notifying the state of his intent to appeal the case.

Whereas Driver went to a public high school, Cory Sause graduated from Jesuit High School, where the cost of tuition would be a good down payment toward one of the Polish Arabian horses from her family's North Bend farm. Her father, Dale Sause, is president of Sause Bros., a privately held, 500-employee ocean-towing company that carries lumber, building materials and fuel up and down the West Coast from Alaska to Hawaii. Her mother, Heidi, was formerly the director of the Center for Entrepreneurship at the University of Portland.

On Dec. 21, 2004, Sause, who was living with her parents at their $1.6 million Lake Oswego home, went to a tanning salon, tried to drop off an orchid to a professor who wasn't home, and had her "Marilyn Monroe blond" hair dyed brown, according to police reports.

She also told police that all she had to eat that day was some yogurt in the morning, some jerky from an elk her dad had shot, and three-fourths of a burrito while at the hairdresser.

At home that evening, she made a Kenny G CD and a PowerPoint Christmas card for a 43-year-old male friend, Chris Marsh. She told police she guessed she'd had two and a half glasses of white wine and champagne. Sause, who weighs 110 pounds, also told police she had taken half a Buspirone, a prescription anxiety medication that includes a warning to patients about consuming alcohol.

At about 9 pm, Sause arrived at Marsh's home. During the hour the two spent together, they exchanged gifts and she showed him the Christmas card on her laptop.

Marsh later told police that they didn't drink together that night, and when he kissed her goodnight, he didn't smell alcohol on her breath, the police report says.

Sause drove her new white Jeep Cherokee—"The car's got a thousand miles on it," she told police—down South Shore Boulevard in Lake Oswego. Police estimated that she was driving at least 42 miles per hour in the 25 mph zone. She failed to negotiate a curve and crossed the center line, striking a Volvo driven by Patrick Kibler, 21, head-on. Kibler and his 14-year-old brother, Scott, were on their way to play a game of pick-up basketball.

Patrick Kibler was a 2001 graduate of Lake Oswego's Westside Christian High School and was enrolled at George Fox as an honors scholar. He was an Abercrombie & Fitch model and engaged to be married. The impact of Sause's car sliced his aorta. He died later that night, at 1 am. At the time of the crash, Scott Kibler was a freshman at Lakeridge High School. The impact put him into a coma for several days, and he continues to undergo treatment for neurological problems.

Blood drawn in the Oregon Health & Science University emergency room showed Sause had a blood-alcohol level that was twice the legal limit of .08 percent.

As Sause was receiving medical treatment that night and early morning, police were investigating the accident scene. Among the items police found inside here Jeep were: a brown Louis Vuitton handbag, a Multnomah Athletic Club bill, a shipping statement from the luxury decor catalog Horchow, some adult magazines and books, including one called Tickle His Pickle, a pair of black stiletto heels, Pink brand tanning accelerator, Gucci sunglasses and a Gucci shopping bag full of sex toys and various intimate lotions.

During police searches of the home and Jeep, they also turned up a cut straw and a blue envelope labeled "Cory" that contained a plastic packet. Both the straw and packet tested positive for cocaine.

Following a grand jury investigation, Sause was charged in September 2005 with five crimes, the most severe being second-degree manslaughter, a Measure 11 crime carrying a sentence of up to six years and three months in prison.

The family hired lawyer Stephen Houze, one of Portland's most expensive and experienced criminal defense lawyers. He has defended everyone from Jayant "Dr. Death" Patel to allegedly errant Trail Blazers.

Houze negotiated with Clackamas County prosecutors and they agreed to let her plead guilty to a lesser, non-Measure 11 charge, avoiding a trial. Between the accident and the sentencing, prosecutors allowed Sause to take trips to Honolulu, Chicago and Seattle.

In August 2006, she was sentenced to up to five years in prison with the possibility of being released after less than three years. Her driving privileges were revoked for eight years.

Sause was uninsured at the time of the accident, according to police reports. That means Kibler's family will have to file a lawsuit to recoup hundreds of thousands of dollars for medical bills and other expenses.

At Sause's sentencing, Kibler's mom said she hoped Sause would join her in speaking publicly about drunken driving. But she cut her statement short when Sause's sister Caitlin laughed out loud.

"I had five more minutes of things I really wanted to say to Cory," Vickie Kibler says. Kibler says she's written letters to Sause but never received one in return. Patrick's grandparents still pray for Sause every day, she says.

Mike Regan, the prosecutor who handled the Sause case, says some people thought Sause got off easy because she could hire a good lawyer while others thought she got too harsh of a sentence because prosecutors were trying to make an example of her. Neither opinion is correct, he says.

"Juries and judges are pretty comfortable sentencing people for a long time if they kill someone intentionally," like with a gun or knife, says Regan, who declined to talk about the specifics of the case. "But for motor-vehicle crimes, jurors and judges often perceive them as accidents.... The defendant becomes a victim, too."

Meanwhile, the Kiblers keep paying Patrick's cell-phone bill so that his friends and family can still call and hear his voice on the outgoing message whenever they want.

Doell, of Crime Victims United, says the disparity in the sentences in the two cases is fair because the law creates greater penalties for intentional acts than negligent ones.

"Nobody gets up in the morning and says, 'I think I'm going to get drunk of out my mind and kill someone today," he says, while participating in a robbery involves a clear choice to commit a serious crime.

Mary Stewart, executive director of Mothers Against Drunk Driving's Portland chapter, disagrees. "When people drink to that level, is it not premeditated?" she asks. "The death of [Patrick Kibler] was 100 percent preventable."

Multnomah County District Attorney Michael Schrunk didn't support Measure 11 and lobbied in Salem for changes to the law even before it went into effect. He thinks that after more than a decade it's time to look at how the law is working.

"There are a lot of difficult questions with Measure 11," Schrunk says. "But it's something that needs constant tending and re-evaluating."

Chiefly, he says, lawmakers need to figure out whether the mandatory sentences are the right lengths.

Clackamas County prosecutor Greg Horner notes that before Measure 11, defendants such as Sause in vehicular homicide cases frequently got sentences of probation; now, even when there are deals, they often get prison time.

Driver's mom, Sheila Montgomery, doesn't see the justice.

"My son didn't kill anybody. He didn't hurt anybody. He got seven and a half years. How is that fair?" she asks.

"When Oregon was intending to be tough on crime, it forgot to be smart," says David Rogers, executive director of Portland-based Partnership for Safety and Justice, which advocates sentencing reforms. The group plans to lobby the upcoming Legislature for changes to Measure 11.

Yet, even with a new Democratic majority in both chambers of the Legislature, perhaps more sympathetic to looking at how well Oregon's tough-on-crime laws have been working, it will take bipartisan support to get the needed two-thirds majority to make any changes to Measure 11.

While Doell lauds the overall success of Measure 11, he acknowledges "no sentencing system is perfect."


Measure 11 crimes, which include 21 offenses ranging from murder to compelling prostitution, have mandatory minimum sentences ranging from almost six years to 25 years.

Juveniles 15 years and older are subject to Measure 11 sentences.

In 2000, Ballot Measure 94 tried to overturn Measure 11. Voters defeated it nearly 3-to-1.

Steve Doell's daughter Lisa, who was killed in 1992, was one of the main examples used in the Measure 11 campaign. The 12-year-old was struck intentionally by a 16-year-old motorist, who received only a three-year sentence.

A 2004 study by the Rand Corporation found that people charged with Measure 11-eligible crimes have increasingly pleaded guilty to lesser "alternative" crimes that do not carry mandatory minimums.

Alcohol-related crashes in Oregon fell from 322 in 1982 to 199 in 2004. The percentage of those crashes involving someone with a blood-alcohol level above the .08 percent legal limit also fell over that time period, from 56 percent to 35 percent.

Zack Driver will probably remain in the custody of the Oregon Youth Authority for his entire sentence. He is currently at the North Coast Youth Correctional Facility in Warrenton.

Cory Sause is at the Coffee Creek Correctional Facility in Wilsonville.

 
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