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At around 8 pm on July 2, a man walked out of the Multnomah County Courthouse in downtown Portland. Hours earlier, he had allegedly assaulted a Japanese American family while yelling racist slurs.
His release back onto the streets started a citywide argument that has ensnared Mayor Ted Wheeler and Multnomah County District Attorney Mike Schmidt. The mayor has demanded a “top-to-bottom review of the criminal justice system,” even as Schmidt is trying to scotch the perception he’s soft on crime.
A closer look at what happened shows that officials are balancing a desire to prevent and punish hate crimes with their aim to reduce the number of people the county incarcerates. It’s forcing the criminal justice system in Portland to confront some uncomfortable questions.
We tried to answer some of them.
So what exactly happened that afternoon?
A family on vacation from California was biking along the Eastbank Esplanade on July 2 when a man walked up to them, asked if they were Japanese, and began punching the father in the head. The father later told a judge he was punched over 50 times. Although he declined medical treatment at first, he was eventually admitted to a hospital where he was diagnosed with a head injury. His 5-year-old daughter was also punched in the head, but because she was wearing a bike helmet, she wasn’t injured.
Did police catch the attacker?
Bystanders pointed police to Dylan Kesterson, 34, who was found walking away from the scene. Kesterson was brought to the Multnomah County Courthouse, where he was interviewed, told to call into a court hearing the following week, and then released.
Wait, what? You’re telling me a judge let a man accused of a violent hate crime back on the street?
No, Kesterson never saw a judge that weekend. The determination to place Kesterson under supervision rather than in jail was made by a “recognizance officer,” an employee of the county’s Department of Community Justice working in the court, who interviewed Kesterson immediately following his arrest. Kesterson told the officer that night that he was unemployed and living in a park downtown, according to court records.
The officer made the decision to release Kesterson based on the charges police booked him on. Although the cops had booked Kesterson on a first-degree bias crime, Oregon’s most serious hate crime, he was not charged with assault that afternoon.
Wow, why’d the cops go so easy on him?
Police didn’t have all the evidence at the time they booked Kesterson. It wasn’t until the following day that the father sent officers a screenshot of his hospital records showing a diagnosis of “post-traumatic headaches” and a mild concussion.
Sgt. Kevin Allen, spokesman for the Portland Police Bureau, defends the charges chosen by the arresting officers. “We don’t have any role in pretrial custody decisions, nor is it our place to consider that when we are filling out arrest reports,” he tells WW. “I take issue with the notion that the charges were ‘light.’ Bias crime is a Class C felony”—which means it can get you five years in prison.
What it doesn’t get you is a night behind bars. The court’s release guidelines list charges that trigger an immediate night in jail. A first-degree bias crime isn’t one of them—unless the suspect has a prior conviction.
Those guidelines sound like a relic of a less-enlightened era.
Actually, they were updated the day before the attack.
Multnomah County’s guidelines for when to hold defendants prior to their first court appearance are based on a statewide order issued by Oregon Chief Justice Martha Walters. It says, in general, a defendant charged with a “non-domestic” Class C felony involving violence against a person should be immediately released under supervision.
But that statewide order allowed counties to “identify person-specific overriding circumstances.” In the case of a first-degree bias crime, Multnomah County Presiding Judge Judith Matarazzo ordered that a prior conviction for a bias crime, use of a weapon, or assault would constitute such a circumstance.
These guidelines were rewritten as a result of 2021 bail reform legislation and went into effect July 1.
Whose idea was that?
The legislation, Senate Bill 48, was introduced by Gov. Kate Brown. (Her office did not respond to a request for comment.) But similar guidelines were in place in Multnomah County long before—SB 48 just spread them statewide.
Grant Hartley, who heads the Multnomah County office of Metropolitan Public Defender, says such guidelines are necessary to protect a cornerstone of the American judicial system: the presumption of innocence.
“We can’t just lock people up based on a police report and allegations without sussing out what happened,” he says.
He cite statistics published by Portland State University in 2019 that show defendants who are jailed prior to trial are twice as likely to eventually be sentenced to prison, when controlling for case history, offense severity, and other factors. “What pretrial detention does is create a pipeline to prison,” Hartley says.
Lawmakers and judges were right to base the standard for who should stay in jail on the subject’s criminal history, he adds. “You don’t have much else to rely on.”
That doesn’t satisfy longtime prosecutors who have watched with dismay as Oregon lawmakers have worked to reduce the number of people the state incarcerates.
“An anti-punitive notion has taken over the criminal justice system,” former Multnomah County chief deputy district attorney Norm Frink says. “There’s nobody anymore who’s standing up and saying, hey, this is ridiculous.”
It sounds like hate crimes should be considered a more serious offense.
Well, Oregon overhauled its hate crime laws in 2019. Among the reforms: promoting a crime involving a single assailant, like this one, from a misdemeanor to a felony.
State Rep. Janelle Bynum (D-Happy Valley), a legislator who helped pass that 2019 law, thinks it didn’t go far enough.
“The legislation is still insufficient,” she says, noting that it focuses on violence and property damage. There’s another type of harm, she adds: psychological harm, which can afflict an entire community, not just the victim. “It’s like psychological warfare. It makes you feel unsafe,” she says.
Prosecutors in Kesterson’s case, relying on existing law, focused on the physical toll of the attack. Three days after his arrest, prosecutors added assault charges and filed a motion with the judge, asserting that Kesterson had committed a “violent felony” and was eligible for pretrial detainment.
Three freaking days?
Kesterson was arrested on a Saturday, when the courthouse is closed. Prosecutors didn’t review his file until the next business day, Tuesday, after the July 4 holiday.
This is how the system works, says Elisabeth Shepard, a spokeswoman for the Multnomah County District Attorney’s Office. “Our attorneys frequently work weekends,” Shepard said in a statement. But that doesn’t help if no judges are on duty. “We cannot issue charges when the courthouse is not operating,” she wrote.
How do we fix this?
Two options: Judge Matarazzo could issue new guidelines, or the state Legislature could pass new legislation.
Conversations to strengthen the state’s bias crime statute are already happening at the Capitol.
Randy Blazak, vice chair of the steering committee overseeing implementation of the 2019 hate crime law, said he was aware of at least one proposal: modeling new bias crime legislation on existing domestic violence laws, which severely limit pretrial release for such crimes.
“Allowing a person to walk out after they’ve traumatized an entire community defeats the purpose of the law in the first place,” Blazak says.
But Bynum cautions that change happens faster at the local level. “The Legislature is a much slower, more deliberative body,” she says.
Still, changing the county guidelines could prove just as difficult. Matarazzo didn’t answer when asked by WW through her spokesperson if she planned to revisit them. Instead, she issued a statement deflecting responsibility.
The county’s Chief Criminal Judge Cheryl Albrecht noted that the district attorney’s office had “specifically requested we add enhanced protections for bias crime, and our group adopted those terms with consensus.” (The DA’s office declined to comment on the agreement.)
So, this guy is still on the streets?
No, when Kesterson failed to show up in court last Wednesday, the judge issued a warrant and the cops distributed his mug shot. Kesterson was found that afternoon by an off-duty cop downtown, near the park he had originally listed as his last known address.
After 94 hours of freedom, he is now in jail.
Clarification: This story has been updated to correct the title of the recognizance officer, and clarify that the officer works for the Multnomah County Department of Community Justice.