Double Standards

[July 1st, 2009]

Attorney General John Kroger’s conclusion that he found “insufficient evidence” to charge Mayor Sam Adams may have been the correct legal decision. But details of the five-month investigation have left some lawyers and victims’ advocates unhappy.

Jim McIntyre, formerly the senior deputy district attorney in charge of prosecuting violent crimes for Multnomah County, says Kroger treated Adams with kid gloves.

McIntyre points to investigators’ complaints in early draft reports that “Adams’ lawyers were hampering the investigation” by delaying the handover of electronic evidence from Adams’ computer. And yet, McIntyre claims, the AG was deferential.

In other cases when police officers or other public employees are being investigated, McIntyre says, prosecutors issue subpoenas and execute search warrants. They don’t politely ask for records and then stew when they are not produced for more than two months, as in the Adams investigation.

“If the investigation were being conducted on a police officer or corrections officer, you’d never see the same latitude that was given to Mr. Adams,” McIntyre says.

McIntyre, who now defends cops accused of wrongdoing, says Adams has benefited from a double standard.

“The Portland Police Bureau has fired officers and the Department of Public Safety Standards and Training has decertified others for less than Mr. Adams is accused of,” says McIntyre, citing a conclusion in one of the AG’s draft reports—absent from the final version—that Adams “lied repeatedly about his sexual relationship with Breedlove.”

Kroger told WW in an interview Tuesday (to read excerpts and watch daily video installments, go to wweek.com) that subpoenaing Adams’ electronic devices would have lessened the transparency of his investigation. As for the double standard, he says his job was not to opine on whether Adams lied or suggest punishment but to determine whether there was evidence of a crime. “I can’t editorialize,” Kroger says. He adds that his office spent five months on a case that most district attorneys would dismiss in a day or two.

In 2006, four police officers permanently lost their certification for lying about sexual contact, including kissing a 17-year-old female Tualatin Explorer scout, even though no criminal charges were ever brought. McIntyre says there is no reason Adams should be held to a lower standard.

Erin Ellis, executive director of the tri-county Sexual Assault Resource Center, has a different concern. Ellis says Kroger’s final report set back the rights of sexual assault victims by attacking Breedlove’s credibility.

“Reading that report feels like we’re sliding backward in the way in which we approach these cases,” Ellis says. “It’s the old mindset of blaming the victim, especially in cases that involve a minor.”

(Breedlove was 17 when he and Adams first met and he alleges Adams kissed him twice before he turned 18, including a “minute-long” smooch in a City Hall bathroom. Adams has said he doesn’t recall the kisses. The age of consent for sexual contact in Oregon is 18).

After the sharp criticism of Adams in earlier drafts got deleted from Kroger’s final report, the version Kroger released slammed Breedlove for “prior inconsistent statements, the lack of corroborating witnesses or evidence, his attempt to gain personally from matters related to his involvement with Adams and his prior criminal record.”

Ellis says such an assessment ignores Breedlove’s claims that his statements were “inconsistent” because Adams asked him to lie, and, more importantly, ignores the massive power differential in 2005 between Breedlove, who was a legislative intern, and Adams, then a 41-year-old Portland city commissioner.

Ellis says blaming Breedlove for choices he made well after the 2005 interactions with Adams that were at the center of the investigation, such as posing for the gay porn magazine Unzipped or shoplifting $750 worth of merchandise in Hawaii, is simply unfair.

“This is a classic shell game,” Ellis says. “Shifting blame from the person who is accused to the person who has reported the crime.”

She and McIntyre say sexual assault survivors routinely make inconsistent statements and questionable choices and may not always be the most sympathetic witnesses. None of that should shift focus from Adams’ behavior, they say.

“The community is so caught up in choices victims make. It isn’t about choices the victims make,” Ellis says. “It’s about choices perpetrators make.”

Kroger says his report was not meant as an assessment of Breedlove but rather an explanation of why he would not be a credible witness (and he was Kroger’s only witness). “I either explain my charging decision or I don’t,” Kroger says. “We do not trust Beau Breedlove.”

Of course, Breedlove could have the final word. If he were to sue Adams in civil court, the mayor would be put under oath—a decision Kroger rejected—in depositions or at trial. Adams also could face the same scenario if former mayoral spokesman Wade Nkrumah follows through with his intent to sue the mayor and the city over statements Adams made after Nkrumah resigned in January.