Written and submitted from behind bars.
In June 2014 I was tried and wrongly convicted of murder in Deschutes County, a result of having defended myself and my family in our home on February 4, 2013. In 2018, my conviction was vacated by the Oregon Court of Appeals, and I am currently being held in Deschutes County Jail, awaiting retrial at the end of October of this year. (edit: now scheduled to begin March 17th, 2021)
My original conviction was based in large part on numerous incidents of misconduct carried out prior to and during trial by then District Attorney Patrick Flaherty and Deputy DA Mary Anderson and Kandi Gies, all of whom were prosecutors on my case at that time. Mr. Flaherty stepped down as lead prosecutor when he lost his reelection bid in 2014, bringing on Ms. Gies as her co-counsel. The state is currently represented by Anderson and Gies. The misconduct I wish to report includes the withholding of evidence, witness tampering, and a pattern of deceit, dishonesty, and misrepresentation of the law and the facts and evidence in my case. In reference to the Oregon Rules of Professional Conduct, I believe that at a minimum, three occurred: violations of rules 3.3 a (1 and 3 motivator and 3.4 a, B, and E; 3.8 a and B; 4.1 A; and 8.4 a (1 – 4); among the most egregious examples are:
– DA Flaherty withheld portions of video/audio surveillance footage taken of me, my ex-wife Rachel, her son Trent, and nephew Cameron at Bend PD the night of the incident. Some footage was initially handed over, but the existence of the rest was denied until an unsigned whistleblower letter from someone in the DA’s office was sent to judge Dehoog in October 2013. The letter indicated that Flaherty had been hiding evidence and had “ordered” officers at Bend PD not to write any reports about a segment of the footage where Rachel spoke with Trent about what he had heard that night at our house. We are currently trying to determine the identity of the letter writer. Anderson has stated that she believes she knows who it is, but has been unwilling to provide us the name. (Letter attached)
– When Rachel was preparing to take a polygraph administered by Chris Kaber on 2/7/13, Flaherty entered the room with one of his interrogators and proceeded to accuse Rachel of being a liar. Kaber gathered his equipment and excused himself. (See attachments)
– Prior to and throughout trial, Flaherty, Anderson, and Gies portrayed the decedent (David Ryder) as a peaceful, nonviolent individual (e.g. Transcript of Proceedings page 112, 294). They claim that there was nothing to indicate that Ryder was physically or sexually aggressive, despite extensive evidence of his assaultive and sexually deviant behavior, most of which was not allowed in at trial: See his arrest records for assault and resisting arrest, witness statements describing his violent and sexually aggressive acts, and his own Internet postings where he bragged openly about assaulting people and fantasized about raping intoxicated males. (Attached)
– Anderson and Gies assassinated my character at trial, portraying me as dishonest, gay (TR 1474, 1782), transient, and as someone whose life was going nowhere (TR 295). They called me a “storyteller” and referred to my testimony as a “story” about 50 times during their closing arguments. They also compared me to a misbehaving dog and a lying child beginning in voir dire (Voir Dire transcript pg 12, 24, and TR 1675 – 76). When Rachel was on the stand, Anderson said to her, “You lied about a number of things” (TR 1283), and Gies talked to the jury about “the defendant’s lies.” (TR 1799)
-Anderson stated that wounds on my neck were likely self-inflicted (TR 1711). She said this at trial, despite the fact that my DNA was found under Ryder’s fingernails prior to trial, Anderson acknowledged that Ryder inflicted wounds when speaking to my former attorney Walter Todd, but she was dismissive, saying: “Those are just love marks.” Both Anderson and Gies stated repeatedly that there was no evidence of an assault or even a threat from Ryder and that I never complained about having any pain (TR 1709, 1783) I’d complained of soreness in my neck and right forearm to Officer Michael Jabor on 2/5, 6 PM (TR 987 – 88). Also, prior to his attempt to strangle me, Ryder tried to force himself on me sexually and there is physical evidence of this as well. (see attached DNA reports).
– Anderson and Gies claimed that nothing was knocked over in the home (TR 1793 – 94), despite the fact that police photos show that several items were knocked over on the coffee table in the living room where the initial assault occurred (see attachments). Both prosecutors actually stated that there were “no injuries” (TR 1692), that it was “not physically possible” (TR 1793) for the assault to have occurred as I described, and that Ryder was in a “defensive position” when shot, with his arm bent in front of his face and no soot “in the joint where you bend your arm” (TR 1788). See attached photos along with reports by forensic scientists Michael Howard and Kenton Wong. Ryder was charging at me when the gun was fired, and not only does the physical evidence show this, but I’ve also passed a polygraph on the matter. It is noteworthy that Anderson and Gies as good as acknowledge that Ryder assaulted me, yet I am still charged with murder. They offered me a deal for Manslaughter 2, which I declined.
– Prosecution alleged that Ryder was trying to leave my house when he was shot (TR 1789). The physical evidence shows the opposite, as he had moved past two exits, his shoes, wallet, and his key while advancing in the direction of my bedroom. Also, police documented a live shotgun round on the floor of my kitchen walkway, proving that I racked the gun in front of Ryder as a warning as he came at me (see attached diagrams and photos)
– Anderson and Gies stated at trial that I didn’t care about my family (TR 1785), claiming among other things that I never asked how Trent and Cameron were doing. On the video/audio recording from Bend PD, I can be heard asking Rachel over the phone about Trent, Cameron, and herself. (See attached pages from our call transcripts: “Luke Wirkkala in room 309 page 16 and “Rachel – Holding Cell” page 60) In spite of this, the prosecution asked Officers Elliott, Hatoor and Emerson on the stand if I had inquired about the boys and all said no. (TR 375, 756). They both said no, as both were off shift at the time this occurred. Significantly, the officer who did observe me lying on the floor, Detective Knea (“Luke Wirkala in room 309” page 13), was not asked this question when he was on the stand. All of the video footage just mentioned was among that which was withheld by the DA’s office until after the whistleblower letter surfaced.
– Anderson and Gies misrepresented statements made by Rachel, Trent, Cameron, and myself. They falsely claim that I had stated Ryder grabbed the barrel of the gun (TR 1729), that he was “standing” during the initial assault (TR 1680, 1793), and that I “pushed off the floor at some point (TR 1689). They told the jury that no one in the house heard any yelling or arguing or any type of attack in the living room (TR 1793). Trent and Cameron both stated that they heard yelling/(TR 1033) swearing/screaming (TR 1031, 1211). Cameron heard Ryder’s comment to me, “I fucking hate you,” though he mistakenly thought I had said it (TR 1033). The prosecution also distorted what Cameron said about the kitchen light being off (TR 552, 557-8, 1704).
Rachel heard me give Ryder the warning, “I’ll kill you,” as he came at me in the kitchen walkway. Rachel’s phrasing had been, “I’m gonna kill you,” (TR 1309) but Gies said it in her closing as “I’m going to fucking kill him (TR 1791. She (Rachel) heard that.” On the phone at Bend PD I told my parents that I was in jail accused of murder. (TR 742) while I also phrased it as “I’m in jail for murder” (I felt that I was being viewed as a murder suspect based on my interaction with Detective Knea), in her closing, Gies said to the jury, “You won’t find the word accused in that transcript.” (TR 1800)
– Prosecution downplayed Cameron’s autism at trial. Cameron couldn’t remember if it was light or dark out when Rachel, Ryder, and I returned from the bar (TR 549 and “Police Interview with Cameron” page 6), he didn’t know if it was light or dark out when he was driven to Bend PD (TR 566), he couldn’t distinguish between whispering and music (TR 554), he didn’t hear the shotgun blast (TR five and 79) and originally thought that Ryder was stabbed with a knife (“Cameron Rumler) transcript page 22 – this was his first interview with Detective Bob Jones, and Cameron’s actual last name is Crownover). Cameron couldn’t tell the difference between sadness and anger (“Cameron Rumler” 9), answered most of his questions on the stand with “I don’t remember,” and admitted at trial that memories get “jumbled” in his head (TR 554, 571). In spite of all of this, and more, the prosecution portrayed Cameron as a reliable witness (TR 1700 – 02). Anderson also lied here (TR 1701) about Cameron hearing me say, “I’m gonna kill you.”
– Prosecution attacked the credibility of Dr. Suzanne Best, who evaluated me in 2014. Gies said at trial: “Dr. Best’s report was based in 99% on defendant’s self-report.” (TR 1784) Dr. Best drew on police reports, witness statements, and hours of video and audio footage before she ever met with me. (TR 1105, 1139)
– Anderson in her closing lied about the testimony of DNA expert Dani Tsuboi. Anderson said that, “momentary contact… It’s not consistent with the DNA result,” and referred to that result as “a full-profile DNA.” (TR 1706)Tsubuoi specifically said that this swab resulted in a “partial profile” of my DNA, and that the duration of contact can’t be determined by DNA analysis (TR 719, 723).
– Claimed I was more intoxicated when leaving The Hideaway sports bar around 8:30 PM than after six more hours of drinking (1721, 1782 – 83 TR). Also greatly exaggerated how much I’d drank at the bar (TR 1625), and stated that intoxication was not an issue in this case (TR 212). The DAs claimed I’d drank 19 full beers, but there weren’t even that many total beers purchased (TR 1624). Rachel and I had two 12 ounce glasses of beer each, then three 64 ounce pitchers were shared over the course of the day, with pint glasses, that comes to 12 full beers (16 oz) for a grand total of 16, which I only drank a portion of.
– Gies told the jury in closing the Ryder’s 65 coworkers didn’t complain about his behavior (TR 1796). They actually did quite strenuously, especially when you look at officer Hagan’s initial interview (attached).
– Prosecution muddied the waters on Oregon law concerning self-defense and the use of lethal force. Gies told the jury: “The court gave you some instructions, including when physical force can be used to protect yourself. This is physical force, not deadly force.” (TR 1786) also, “Intentional Killing Is Murder.” (TR 1783) The jury instructions were unclear on the fact that a person can legally use lethal force to defend oneself and others
– In her closing, Gies used the phrasing, “When Defendant murdered Ryder” at least three times (TR 1788, 1792). Anderson also did this several times, making statements like, “after this murder occurred” and “the defendant intentionally caused the death of David Ryder. Murder. That is why we are here.” (TR 1713, 1666)
– DA claimed I loaded the gun while in the bedroom (TR 1800). Nothing indicating that. Ammo box was closed and neatly placed on lower shelf of my nightstand (see attached photos). Rachel did not testify that she witnessed me loading it. (TR 1288)
– Several times during trial, Gies and Anderson did little reenactments of Ryder’s assault on me, with Detective Bob Jones (large man) playing my role, and Gies and Anderson (small women) playing the role of Ryder. In actuality, Ryder was 2 inches taller than me and outweighed me by 50 pounds. (TR 1686, 1690-91, 1777, 1798 – 99)
– At release hearing on 5/22/20 prosecution continued to lie about established facts. In the “State’s Offer of Proof in Support of Maintaining a No Bail Hold,” finding 3 restates falsehood that I was living at my “then girlfriend, Rachel Rasmussen’s home.” Richard and I were renting the house together, my name is on the lease, and the DA has had a copy of said rental agreement since before the first trial (see attachments). Finding 46 states falsehood that “officers found a box of open ammunition.” See above bullet point and attached photos. At hearing, Anderson lied about me having pajamas on before the assault, claiming this indicated that Ryder could not easily leave. Rachel testified that I put pajamas on when retrieving the gun (TR 1294). Anderson also continues to portray Cameron as a reliable witness and distort his statements (see above bullet points). Finding 65 states that Cameron heard whispering, but he testified that he didn’t know if it is whispering or music (TR 554). Finding 71 says that Cameron heard, “I fucking murdered him.” At trial, Cameron did not use the word murder.
– Anderson also continued falsehood at hearing that Ryder was trying to leave my house when shot, erroneously stating that his feet and body were pointed towards and “aligned” with the front door. Ryder’s feet were located at the beginning of my kitchen walkway, clearly showing that he was advancing towards me in the direction of the bedroom. (See attached photos and diagrams)
– At trial, prosecution tried to say that there was not enough space between the couch and coffee table for the assault to have occurred as I described. They repeatedly stated that Ryder was “between the coffee table and the couch,” which I never said. He was seated on the couch with the coffee table in front of him (TR 1679-81, 1683, 1006 at 85, 1691, 1781). See attached photos and diagrams.
Prosecution alleged that Ryder was trying to leave my house when he was shot (TR 1789). The physical evidence shows the opposite, as he had moved past two exits, his shoes, wallet, and his key while advancing in the direction of my bedroom.