Cornelius officials learn that when an officer's credibility is questioned, it has a rippling effect

Editor’s Note: A year ago today, four Cornelius police officers submitted a 15-page letter to the Cornelius City Council calling into question the professional conduct of former Police Chief Paul Rubenstein, then-Assistant Chief Joe Noffsinger and one of their fellow officers, Dustin DeHaven.

For the past two weeks, the News-Times has focused on the ramifications of that letter, starting with an exclusive in-depth interview with Rubenstein for a story in our Oct. 2 issue and then, on Oct. 9, a look at one of the accuser’s own legal problems. This week we continue our coverage with a story about a largely unnoticed subplot.


The News-Times

In the past year, Cornelius residents, city officials and community leaders have watched as members of their city’s police department turned against each other in a series of accusations and counter-claims that resulted in numerous lawsuits and the early retirement of former Police Chief Paul Rubenstein.

The blow-up began on Oct. 16, 2012, when four Cornelius police officers submitted a letter to the city council, accusing Rubenstein of misconduct that included (among other things) covering up a series of lies by Officer Dustin DeHaven while then-Assistant Chief Joe Noffsinger allegedly turned a blind eye.

A recently completed investigation conducted by the Oregon State Police cleared Rubenstein, DeHaven and Noffsinger of any official misconduct and now many in Cornelius would like to move on.

Rubenstein retired in February and Noffsinger still serves the department as a lieutenant under current chief Ken Summers. But for DeHaven, the saga may not be over.

About seven weeks ago, questions of DeHaven’s truthfulness spilled out beyond city hall and into the courtroom of Washington County Circuit Court Presiding Judge Kirsten Thompson.

On Aug. 29, Stacy Duclos, who represents clients for Metropolitan Public Defender, asked Thompson to release documents pertaining to DeHaven’s truthfulness, which Duclos argued is relevant to the arrest of a 48-year-old Cornelius woman charged with interfering with a police officer.

Details of the incident are not known, as Washington County prosecutors denied the News-Times’ request to see the police report. All the newspaper could learn was that DeHaven arrested Duclos’ client and Noffsinger escorted her to a patrol car when he arrived.

Duclos asked the judge to release DeHaven’s personnel file, along with investigation reports and other relevant papers related to DeHaven’s past conduct.

On Sept. 19, Thompson denied the pre-trial subpoena requests, saying personnel records may be kept confidential and that other documents, including the letter sent to Cornelius officials last October, have already been made public.

Duclos’ request stems from a 50-year-old court ruling (Brady v. Maryland) and subsequent cases that require defense attorneys to be given evidence of any untruthfulness of any witness, including law enforcement officers.

Greg Kafoury, a prominent Portland trial lawyer who has handled several lawsuits involving police misconduct, said problems often arise when officers have a strong belief someone is guilty but encounter some kind of a gap in the evidence.

At that point, he said, they have two options: let a suspected crime go unprosecuted or make something up to fill the gap. The latter “happens a lot,” said Kafoury, who is not invovled in any of the incidents linked to DeHaven.

“Once police start down that path,” he said, “there’s no logical end to it.”

The interpretation and execution of the Brady ruling varies between jurisdictions. In Washington County, Summers said, there is an understanding among prosecutors about which officers may have their credibility routinely called into question because of “evidence of untruthfulness.”

The decision about whether the Brady ruling applies to an officer rests with the Washington County district attorney, and in DeHaven’s case, no such decision has yet been made.

According to Roger Hanlon, Washington County chief deputy district attorney, it’s unusual for law enforcement officers in Washington County to end up on the so-called “Brady list” because if they’ve involved themselves in some sort of serious misconduct, they usually lose their job.

Cornelius already has one officer on the “list.” A federal lawsuit against Miguel Monico, one of the authors of the Oct. 16 letter, claims Monico falsely reported a man had “confessed” that a white powder found in his home was cocaine. Tests later proved the powder was harmless. (See “Ruling puts Monico closer to court,” Oct. 9, 2013).

Washington County District Attorney Bob Hermann is allowing his office to use Monico as a witness, while continuing to notify defense attorneys of the federal lawsuit against him.

But just because an officer has been accused of untruthfulness, doesn’t mean jurors will find out every time the officer is called in to testify on a case — particularly if the alleged unthruthfulness is not clearcut.

Although witnesses, including police officers, are subject to impeachment by defense attorneys, judges are often hesitant to allow evidence they’ve decided is unrelated to the case at hand, according to Tung Yin, a professor at the Lewis & Clark Northwestern School of Law.

Still, with Monico already affected by Brady, another officer with credibility issues would be problematic for the already strapped team at the 12-member Cornelius Police Department.

Because the department is so small, Summers said, he is the only one who isn’t routinely on patrol and making arrests. “There are just no desk jobs here,” he said.

Summers is trying to move forward, but concedes that questions about officers’ truthfulness don’t help. “A police department that doesn’t have the confidence of its citizens is useless,” he said.

Still, Summers, who took the reins of the department last November (when, as he put it, “you could cut the tension with a knife”) is optimistic. Workplace morale has improved, he said, with the help of better communication. Monthly off-the-clock meetings with the officers allow them to talk about any workplace issues, which helps develop a “spirit of cooperation.”

Three of the four officers who signed the explosive letter a year ago have told him they would like to move on and put things behind them, according to Summers. “’We can fix this,’ has been the new attitude,” he said.

Summers said he isn’t personally worried about DeHaven’s credibility.

Lewis & Clark’s Yin said it’s important to separate honest mistakes and poor communication from willful lying.

“A lot of the time, we jump to conclusions,” he said. “Intentional falsehoods should be far more troubling.”

The letter and the law

The letter submitted to the Cornelius Council a year ago included a litany of allegations of misconduct, outlined by four officers: Shawn Watts, Doug Schuetz, Mark Jansen and Miguel Monico.

Among them were allegations that Officer Dustin DeHaven’s “malicious lies” threatened “the criminal justice system as a whole.” Below is a summary of the most problematic allegations of untruthfulness and what the News-Times has been able to learn about them through an Oregon State Police investigation and the newspaper’s own research:

n In a June 2012 incident, a 911 dispatcher radioed the Cornelius police station about suspicious activity at a vacant property. In the state police report, Officer Schuetz said he overheard DeHaven radio back to the dispatcher to show that he’d arrived at the scene and — a few minutes later — to go ahead and clear the call, as if it had been taken care of. In fact, DeHaven never left the station, leading Schuetz — who was in a different room and never asked DeHaven about the incident — to conclude he lied to the dispatcher. An investigation by then-Assistant Chief Joe Noffsinger found DeHaven had called dispatch by phone to explain he wasn’t actually at the scene but he planned to go when he had a free minute. Schuetz would have been unable to hear that phone call at the time. But radio and phone logs reviewed by the News-Times support DeHaven’s account.

n DeHaven was also accused of telling Sgt. Watts he didn’t conduct a drug test because he didn’t have a test kit. When Schuetz reminded him that he did have a kit, DeHaven then said he didn’t want to use his last one. Both current chief Ken Summers and former chief Paul Rubenstein see that incident as a harmless misunderstanding — along the lines of ‘I don’t have a kit. I mean not a kit I want to use’ — rather than a malicious lie.

Cause and effect

While some questions about DeHaven’s truthfulness involved internal matters of the Cornelius Police Department, others also involved people he suspected of a crime and the required “probable cause” he had to detain them.

n In April 2010, DeHaven stopped a man and searched his backpack, where he suspected there were drugs.

It’s not clear what probable cause DeHaven had to make the stop and search, but an internal memo written by Forest Grove Officer Jennifer Smith offers a clue.

Smith had contact with the man earlier and wrote that DeHaven asked if she’d seen him riding his bike and whether she suspected he was under the influence of drugs or alcohol (it’s illegal to ride a bike under the influence).

She said she’d told him that while she did think the man might be under the influence she had not seen him riding his bike.

And yet, she wrote, she later learned that DeHaven had written in a police report that Smith had seen the suspect riding a bike, had initiated a stop and determined he was under the influence of drugs or alcohol. “None of those statements were true,” Smith wrote in her memo. A Hillsboro Police investigation into the matter determined the allegation of untruthfulness against DeHaven was “not sustained,” suggesting it was more of a perception issue.

But that wasn’t the only incident raising questions about DeHaven’s understanding of and approach to probable cause.

n Officer Schuetz described another incident in an email to Sgt. Watts, in which DeHaven allegedly ignored Schuetz’s attempts to warn him — and show him in state law — that he did not have probable cause to arrest two men at Fred Meyer. Schuetz wrote, “this was, with difficulty, resolved that night.”

n In another case described by Watts, DeHaven arrested a woman for a misdemeanor and then got consent to search her purse. Watts said he and Schuetz were concerned that there was no probable cause for the search and later discussed it with DeHaven. “Even after reading the case law directly (verbatim) from the reference, Ofc. DeHaven argued that he could articulate a search. It was pointed out to him that he could not justify or articulate a search under this statute...He continued to argue his position.”

n In another incident, Officer Monico claimed that in order to charge a woman with “resisting arrest,” DeHaven wrote in a police report that he’d told her she was under arrest — even though he had earlier admitted he’d failed to tell her that.

Probable cause can be a confusing concept for new officers, said Cornelius Police Chief Ken Summers.

“Officers need to be given guidance early in their careers — there are some concepts you just cannot be taught at the police academy,” said Summers, who doesn’t think DeHaven, a rookie, was receiving that guidance at the time.

These incidents “are not a reflection of his character or integrity,” Summers said.

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