Bar dismisses ethical complaint against local prosecutors; Hindsight: Judge would have disclosed discipline of TD Police Officer Kienlen
Ellis to push ahead with overturning cases involving untruthful officer
By Tom Peterson
Current Wasco County District Attorney Matthew Ellis
Former Wasco County District Attorney Eric Nisley
Wasco County District Attorney Matthew Ellis is pushing forward on overturning more than 150 cases against locals involving testimony or evidence provided by former Police officer Jeff Kienlen despite a recent Oregon State Bar opinion that found no “clear and convincing” evidence of wrongdoing by former prosecutors.
Ellis and four other attorneys leveled multiple ethical violations against former Wasco County District Attorney Eric Nisley and former Deputy District Attorney Leslie Wolf surrounding an alleged lack of disclosure in 2011 of documents and information detailing the untruthfulness of former The Dalles Police Officer Jeffrey Kienlen.
Former Wasco County Deuputy District Attorney Leslie Wolf
Those allegations of ethics violations were dismissed in January by the Oregon State Bar’s Professional Responsibility Board, according to a letter written by Assistant Disciplinary Counsel Allison Wilkinson.
Central to the complaint about Nisley and Wolf was the fact that Nisley did not give Kienlen’s Notice of Discipline to then-presiding Judge Paul Crowley in December 2011 for review. Defense attorneys claimed the information should be disclosed and were intending to use the information to discredit Kienlen in cases against their clients.
It is the very notice that Ellis said he found in his desk when moving into the District Attorney’s office after being elected in 2020. It is the same notice Ellis used, in part, to bar Kienlen from testifying after taking office.
The Notice of Discipline is in reference to Kienlen telling the police chief he was going to stay with a cousin while on training in February of 2011 when, in fact, he drove from Eugene to Salem and spent two nights with Wolf at Comfort Suites Hotel.
Chief Jay Waterbury wrote, in part, the following in the notice of discipline to Kienlen dated Feb. 17, 2011:
“Your statement to me regarding your cousin in Eugene was false,” wrote Waterbury. “You also told Detective Macnab you were staying with a cousin near Salem, which was false.
I find that you have violated policy W.1.100.040 – Truthfulness. The integrity of police service is based on truthfulness. If you are not truthful, you have no integrity. Without integrity you can’t be a good police officer. You are a Sergeant, yet you tell your officers falsehoods. Because of things like this, you can’t wonder why you have lost respect of the officers. When you lie to me, I look at the person that is supposed to be a leader of our officers and wonder, where did I fail? Disappointment is huge.”
In all analysis, Wilkinson wrote that the Professional Responsibility Board did not find “clear and convincing evidence” to support the ethical violation claims against Nisley and Wolf and dismissed the “grievance.”
The clear and convincing standard of proof requires the truth of the facts asserted is highly probable, a rung lower than the burden in criminal cases, where there should not be any doubt in the mind of a reasonable individual that the defendant is guilty of the crime.
Ellis, Senior Deputy District attorney Sarah Carpenter, Kara Davis, and defense attorneys Brian Aaron, William Howell brought the ethical complaint.
The stakes of the decision were significant in three ways.
First, had the allegations been confirmed, Nisley and Wolf were facing reprimands which can include suspension of a law license all the way to disbarment.
Second, Nisley has stated that “Ellis could not wait to see the results of his complaint before dismissing 167 cases for "dishonesty" when the evidence of dishonesty is not and would not have been admissible against Jeff Kienlen.”
Third, The Oregon State Bar is the only agency in Oregon that can hold a District Attorney accountable as they have immunity when trying cases on behalf of the state. Meaning, a DA’s power is only checked if held to account by the Oregon State Bar’s Professional Responsibility Board.
“The Bar opinion is frustrating, as the State Bar is the only avenue of accountability when it comes to prosecutorial misconduct,” Ellis said in an email on Feb. 20. “None of the people harmed by the failures of the previous administration will be able to file a lawsuit against Nisley or Wolf, as prosecutors have absolute immunity in the courts when it comes to prosecutorial discretion, whether it be in charging cases or withholding evidence that could negate a defendant’s guilt. This ruling is a missed opportunity for the Oregon State Bar. Elected officials are rarely held accountable for misdeeds in office, and this could have been a statement that the Oregon State Bar takes prosecutorial misconduct seriously. Circling back to the first point (overturning cases), I still have an ethical and moral duty to clean up this mess.”
“I am pleased with the bar’s decision,” said Wolf in an email sent Feb. 16. CCCNews asked Wolf questions about a notice of discipline written by Waterbury as well as Kienlen’s truthfulness, to which she did not respond.
Generally, Nisley and Wolf have maintained that the specific incidents involving Kienlen were singular in nature, had no effect on his police work and did not rise to the level of discoverable evidence, an opinion one judge concurred with at the time of review in 2011.
Since the OSB opinion release, Nisley has publicly questioned Ellis’ timing and decision to try and exonerate defendants convicted with Kienlen’s input.
Ellis, who beat Nisley at the polls in 2020, investigated and then prohibited Kienlen from testifying shortly after taking office in 2021. With an inability to testify, Kienlen was terminated from The Dalles Police force several days later.
Ellis plans on going ahead with requests to overturn more than 100 cases in which Kienlen participated.
“...the bar’s opinion changes nothing concerning adding Kienlen to the Wasco County District Attorney’s Do Not Call List,” Ellis wrote. “Nor does it change anything regarding overturning over 100 cases. The Bar agreed with me that the Notice should have been disclosed and evidence was improperly withheld.”
Nisley was short on words.
“I think the PSRB opinion answers all your questions except the last one,” Nisley wrote in an email to CCCNews on Feb. 17. CCCNews asked Nisley six questions in total in the email in regard to Kienlen’s truthfulness and Nisley’s handling of Kienlen’s Notice of Dismissal.
The last question CCCNews asked is if Nisley planned to run for District Attorney in 2024.
“To that question, I have no comment,” he said.
Going Deeper
The ethics complaint centered around two issues - the disclosure of Kienlen’s notice of discipline and whether Wolf and Kienlen’s relationship was “just friends” as Kienlen testified under oath in 2010.
In February of 2011, Kienlen was sent to a training in Eugene.
Kienlen had told Chief Waterbury he would stay with a cousin in Eugene. He told Detective Eric Macnab he was staying with a cousin in Salem.
Kienlen, in fact, did not have a cousin in Eugene or Salem.
He used a city vehicle to drive from Eugene to the Comfort Suites Hotel in Salem to spend the two nights in the same room as Deputy District Attorney Wolf on Feb. 8 and 9, 2011 while she was also at training.
Waterbury learned of the events and questioned Kienlen (pages 21-23) in regard to the events and then wrote a notice of discipline which led to Kienlen’s reduction of rank from sergeant to police officer.
Rumors of the events got back to defense attorneys in Wasco County who then asked for witnesses and documents that could be used to discredit Kienlen when he testified at trial against their clients.
Triggering the Kienlen Review
A private review of documents regarding Kienlen’s untruthfulness in December 2011 was preceded by a request from defense attorney John Olson who was defending Kevin Hester on multiple charges in Nov, 2011.
Olson asked for “any and all information, evidence, statements and reports which would be exculpatory.” - evidence that might exonerate his client, such as an untruthful witness.
In the same time period, it became clear that defense Attorney Brian Aaron was going to call officer Josh Jones to testify “regarding his unfavorable opinion of Kienlen’s truthfulness.”
Nisley then filed a motion for a private or in-camera review concerning Kienlen. He gave Presiding Judge Paul Crowley the five following documents for review:
1. Declaration of Eric Nisley, attached to a December 9, 2011, Confidential Memorandum;
2. Copy of Draft Letter to Aaron in State v. Hendon, CR11-191, dated November 28, 2011;
3. Interview of Jones by Waterbury, dated December 8, 2011;
4. Defense Discovery Request in State v. Hester, CR11-259, dated November 15, 2011; and
5. Letter signed by Waterbury, dated December 8, 2011 (December Letter).
Instead of the notice of discipline written by Waterbury on Feb. 17, 2011, Crowley was given a letter written by Waterbury 9 months later on Dec. 8, 2011, three days before the review by Crowley, according to the undisputed facts of the OSB opinion.
Nisley did not provide a copy of the Notice of discipline for the in camera inspection, according to the opinion. “Nisley believed he did not have the Notice in his possession at the time of the in camera inspection,” the opinion states.
Nisley did submit the newly written letter from Waterbury. It states:
“I have been acquainted with Officer Jeff Kienlen since he was hired in January of 1995 by The Dalles Police Department. Since that time I have never had a reason to question his truthfulness in regards to his position with the police department. I have never known Officer Kienlen that closely to make a judgment regarding his personal life.
I promoted him to the position of Sergeant in October of 2007. Part of the promotion process is based on truthfulness.
In early February of this year Officer Kienlen was scheduled to attend a class in Eugene, Oregon. He had asked if he could take a department car because he wanted to visit a cousin of his in Eugene. I gave approval for his request. I later discovered that he didn’t have a cousin in Eugene and he admitted to that. I felt he was untruthful with me to cover up a personal indiscretion.
On February 17, 2011 I demoted Officer Kienlen from Sergeant to Officer for violating a department policy regarding truthfulness.”
Ellis and the four other attorneys maintained the letter was in stark contrast to Waterbury’s Notice of Discipline which stated the following and should have been given to Crowley for review. It states:
“Your statement to me regarding your cousin in Eugene was false, wrote You also told Detective Macnab you were staying with a cousin near Salem, which was false.
I find that you have violated policy W.1.100.040 – Truthfulness. The integrity of police service is based on truthfulness. If you are not truthful, you have no integrity. Without integrity you can’t be a good police officer. You are a Sergeant, yet you tell your officers falsehoods. Because of things like this, you can’t wonder why you have lost respect of the officers. When you lie to me, I look at the person that is supposed to be a leader of our officers and wonder, where did I fail? Disappointment is huge.”
Crowley’s Reviews
In December 2011, Judge Crowley determined the information was not discoverable.
“The reason is that it’s not admissible evidence. The reason it’s not admissible is that the evidence pertains to specific acts of misconduct, not evidence of general opinion or character evidence,” Crowley wrote at the time.
But his opinion changed.
In April 2022, Crowley was contacted by Nisley’s attorney Lawrence Matasar, and Crowley stated had he seen the Notice, he would have ordered disclosure.
“My thought process is . . . that if a defense lawyer receives a copy of a letter where the Chief of Police says that a specific officer is not honest, that could lead the defense to then inquire of the Chief whether the Chief has an opinion as to the veracity of that officer and that opinion would be admissible in court. So I don’t think the letter itself is admissible . . . a single act of misconduct is not admissible, but the opinion of the Chief of Police would be admissible,” Crowley told Matasar.
In a follow-up call, Crowley said he had reviewed Waterbury’s Notice of Discipline from Feb. 17, 2011 and Waterbury’s letter written Dec. 8, 2021. He then stated the following:
“I believe that my focus at that point was it was a single act of misconduct. . . . In retrospect I probably should have disclosed that and allowed the trial judge to make a determination about . . . whether that led to any admissible evidence. . . . Reviewing now Chief Waterbury’s notice of discipline . . . it goes on in my mind at least to more specifically outline on the third page the Chief’s opinion that Officer Kienlen was not an honest person. I definitely would have disclosed the second one. In retrospect, I should have disclosed the first one.”
Clear and Convincing
“Because there was not clear and convincing evidence that Nisley did not have a good faith basis for failing to disclose the notice, there was not probable cause that Nisley violated Rules of Professional Conduct 3.8 by failing to produce the Notice…” OSB Assistant Allison F. Wilkinson wrote in a letter to the complaining attorneys detailing one piece of the decision.
“For similar reasons, the State Professional Responsibility Board determined that there was not clear and convincing evidence that Wolf violated this rule,” Wilkinson wrote.
Special Responsibilities of a Prosecutor
Nisley and Wolf also stood accused of ethical violations for allegedly not making timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused…
This again came back to the disclosure of Kienlen’s Notice of Discipline.
Upon examination of the claim, the Professional Responsibility Board found that “Nisley should have disclosed the Notice” from Waterbury.
In addition, Nisley referenced in materials before the court that he believed a discoverability determination from Judge Crowley would also be a final determination on the merits of the complaint matter - whether concerns of honesty around Kienlen could be used against Kienlen at trial.
“The court (Judge Crowley) did not provide guidance to dissuade Nisley from this view,” the Bar opinion states. Meaning Crawley, for example, did not ask for additional documentation or information into the matter to make a determination.
“Based on these unusual circumstances, a trial panel of the Disciplinary Board may likely find that Nisley had good faith basis to believe that the information would not “tend[] to negate the guilt of the accused or mitigate[] the offense…”…a prosecutor’s erroneous judgment that the evidence was not favorable to the defense should not constitute a violation of the rule if the prosecutor’s judgment was made in good faith,” the opinion states.
The finding of good faith led the Board to find no “clear and convincing” evidence of an ethical violation by either Nisley or Wolf.
Kienlen and Wolf Friendship
In the ethical complaint, attorneys said that Kienlen perjured himself when he testified that he and Wolf were “just friends.”
“We are not alleging, nor is it our business, that Officer Kienlen and Ms. Wolf had an affair, the ethical complaint states,” Ellis said in an email. “However, Officer Kienlen testified under oath [in a 2010 case] that he and Ms. Wolf were friends. He stated repeatedly, “just friends”. Their relationship was clearly of an intimate nature that transcends the average person’s reasonable understanding of the definition of close friends. The contention by defense was that Officer Kienlen was willing to risk his career by twisting his testimony to assist Ms. Wolf in obtaining convictions. This argument has significantly more merit once a person knows that he didn’t just risk his career – he ruined it – to spend 2 nights in a hotel room with her.”
The Professional Responsibility Board did not see it that way.
“Here, there was not clear and convincing evidence that Kienlen lied bout his relationship with Wolf on July 7, 2010, when Kienlen’s affidavit was made in the Garcia-Gonzales case. At that time, the only basis to believe they were in an intimate relationship was rumors. Complainants did not produce clear and convincing evidence supporting that Kienlen and Wolf had anything other than a close friendship in this time period. Both Wolf and Kienlen deny that they have ever had a relationship beyond a close friendship.
Kienlen’s decision to stay in the same hotel room as Wolf in February 2011 was not clear and convincing evidence of an affair or that their relationship was somehow more than close friends, particularly when both parties denied, and continue to deny, that they had an affair. To date, no one has produced any evidence to disprove Wolf and Kienlen’s statements.”
