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April 23rd, 2014 KATE WILLSON | News Stories
 

Justice Derailed

A 2008 sex-abuse case lingers in federal court as a “manipulative” defendant works the system.

news1_4025_scrollILLUSTRATION: Leo Zarosinski
     
Tags: sex abuse
When someone is charged with a crime, he has a constitutional right to a lawyer. He also has the right to a speedy trial.

Once in a while, a defendant comes along who tries to stretch the limits of those rights. And few have done so in an Oregon courtroom quite like Andrew Franklin Kowalczyk.

Facing federal charges of sexual exploitation of three young girls, Kowalczyk, 39, has for more than six years flouted prosecutors, thwarted judges and derailed, frustrated and even frightened the lawyers appointed by the court to represent him. 

“No one can take on the role of counsel for [Kowalczyk], because he takes steps, such as suing them, that create irreparable conflicts,” U.S. District Judge Michael Mosman wrote last month. “By his own actions, [Kowalczyk] has made appointing him a lawyer impossible and repeatedly demonstrated his intention to use such appointments as a tactical delay.”

It’s worked. Mosman said during a hearing last year that Kowalczyk’s “manipulative history” has created one of the longest pending criminal cases he’s seen in his 18 years on the bench. 

Kowalczyk’s trial date has been postponed 13 times. Kowalczyk says he can’t afford his own attorney, and his defense lawyers alone have so far cost taxpayers $382,000. That’s about the cost of paying for the defense in a death-penalty case.

The most serious federal sex-offense cases take an average of less than nine months to adjudicate, according to court statistics. Even a typical federal terrorism case takes at most 22 months. Kowalczyk’s charges have been pending more than three times that long.

The oddity of Kowalczyk’s case has created difficult legal issues for federal judges weighing his actions and the U.S. attorneys trying to convict him: When does a defendant waive his right to a lawyer, a speedy trial or both?

Mosman ruled last year that Kowalczyk had lost his right to a lawyer only after he fired his eighth lawyer. The judge later appointed a ninth lawyer, who has since left the case.

“The right to counsel is a fundamental constitutional principle,” says Caroline Davidson, an assistant professor at Willamette University College of Law. “Most courts would not do it lightly.”

But the delays continue, putting the government’s case against Kowalczyk at risk.

“There are victims for whom justice is not being served,” says Gary Sussman, one of the U.S. attorneys prosecuting the case. “There is an enormous government resource drain, and memories fade over time. It’s more difficult to prove a case.”

Today, Mosman is preparing to rule whether Kowalczyk—who’s being held in the Multnomah County jail—is mentally competent to stand trial.

Kowalczyk’s father, John, points to his son’s long history of mental-health problems, and says his physical condition has worsened while in jail. He says there is no reason his son would want to delay his own case.

“He’s nowhere near normal,” John Kowalczyk says. “Where he needs to be is in a mental institution. That’s where he would get the treatment and the care that he needs. Prison is just a death sentence for him.”

But a psychologist for the government—and at least one of Kowalczyk’s former defense attorneys—believes Kowalczyk has proven he’s competent to stand trial.

Andrew Kowalczyk, through his father, declined to speak to WW for this story, as did the judges, investigators and defense attorneys.

But court records in Oregon and Washington tell the story of a case that highlights the tension between protecting a defendant’s rights while not allowing him to run amok in the court system—and make his alleged victims suffer even more.

“It matters that it’s lasted such a long time because [the victims] have to be continually reminded of this,” says Lynn Travis, program director for Court Appointed Special Advocates of Portland. “It’s a piece of their lives they don’t get to put to rest.”


IN HIS OWN DEFENSE: Andrew F. Kowalczyk has been serving time in the Multnomah County Jail while his federal trial on sexual exploitation charges has been delayed more than a dozen times.
IMAGE: Multnomah County Sheriff
Andrew Kowalczyk already had a record of assault, weapons charges and child abuse when police arrested him outside the Northwest Motor Inn in Puyallup, Wash., two days after Christmas 2007. Hours earlier, Kowalczyk, a Portland resident, had taken off from police during a traffic stop and eluded them after a high-speed chase.

When officers searched Kowalczyk’s bags, they found counterfeit $50 bills, fake ID cards and a laptop computer. On the computer, they discovered images and videos of a man raping and sodomizing two toddlers and a third girl who appeared slightly older. Police decided the man in the pictures was Kowalczyk.

According to prosecutors, Kowalczyk allegedly raped the children in Oregon and then took the images into Washington, making it a federal crime. He was eventually charged with nine counts of sexual exploitation of a minor. Because of his criminal history, a conviction could send him to prison for life.

A judge appointed federal public defender Francesca Freccero to the case in October 2009, after Kowalczyk was extradited from Washington. Two months later, she filed a three-line motion to withdraw from the case. She said a conflict had arisen and she wanted out. 

Lake Oswego lawyer Matthew Schindler was appointed in Freccero’s place. Schindler had represented more than 200 federal defendants by then and was known for succeeding with difficult clients—half his cases were hand-me-downs from other lawyers who could not handle them.

But Kowalczyk was too much. Schindler—in a sealed declaration later made public by a judge—said Kowalczyk made hundreds of “pointless” demands for records and ordered him to make legal decisions that Schindler thought unwise. Kowalczyk ordered Schindler to fire everyone on his staff. He had to fight off a lawsuit filed by Kowalczyk’s father that accused Schindler of defamation. 

The lawsuit dragged on for two years before an appeals court judge dismissed it in January.

“I have never had to endure anything remotely resembling what I have been through with [Andrew] Kowalczyk,” Schindler, who lasted 10 months as his attorney, wrote in a motion to withdraw. “He is rude, threatening and abusive. Through his letters, he has called me incompetent, lazy, stupid, and has repeatedly expressed his dissatisfaction with my representation.”

Schindler declined to discuss the case with WW.

Kowalczyk’s third set of attorneys, Michael Levine and Matthew McHenry, tried twice to withdraw from the case. U.S. District Judge Garr King approved the motion in 2011 after they had spent five months trying to represent Kowalczyk. Levine later suffered from heart problems that made it difficult to continue on the case. Before that, however, he and McHenry had already sought to separate themselves from Kowalczyk.

“To describe the relationship between Mr. Kowalczyk and current counsels as ‘antagonistic, lacking in trust, and quarrelsome’ would be a significant understatement,” the lawyers wrote in an appeal to the court. 

That’s when Noel Grefenson, a lawyer from Salem, took over. He was Kowalczyk’s seventh attorney, and the trial date had been postponed six times. 

Grefenson had worked as a defense attorney for 23 years, often agreeing to represent unsavory and challenging defendants. He stayed on even after Kowalczyk threatened to stab him in the eye with a pencil, left a message with legal staff saying Grefenson was playing “death-wish games,” and told the lawyer he knew where his family lived and they would never be safe. 

“The degree of my interactions with the defendant far exceeds that of any client that I have represented since joining the bar in 1988,” Grefenson told a judge in 2012. “I felt it was necessary in this case.”

Grefenson knew Kowalczyk wanted to mount a new defense: that he was mentally incompetent to stand trial.

He told the court he’d seen Kowalczyk carry out legal research and prepare complex motions. “I have not seen anything…which leads me to suspect that the defendant is not competent to aid and assist in his own defense,” Grefenson told the court in October 2012.

Grefenson got off the case after Kowalczyk filed a lawsuit and bar complaint against him. (Both have since been dismissed.) Judge King gave Kowalczyk one more chance, appointing veteran Clackamas lawyer Mark Cross to represent him. If he fired Cross or sued him, King said, the court would view that as a waiver of his right to representation. Facing the same treatment as the other attorneys, Cross lasted six months.


The other federal judge on the case, Mosman, ruled in May 2013 that Kowalczyk had exhausted his right to a lawyer. Twice, the U.S. 9th Circuit Court of Appeals has rejected Kowalczyk’s plea for another court-appointed attorney.

Donald True, a Portland clinical psychologist hired by John Kowalczyk, told the court earlier this month that Andrew Kowalczyk is unfit. John Kowalczyk tells WW that his son hears voices, sees things that aren’t there and believes his lawyers have been colluding with the government as part of “Satan’s army” to put him away for life. 

“It doesn’t benefit him to stay in the Multnomah County Jail,” John Kowalczyk says. “He’s gained nearly 200 pounds and has all kind of health issues.”

The government’s psychologist says Kowalczyk’s insanity plea is “disingenuous” and “contrived.” “It is clear that Mr. Kowalczyk is malingering,” clinical psychologist Richart DeMier wrote in an evaluation last June. 

After hearing testimony earlier this month from both experts, Judge Mosman will review the reports and rule whether Kowalczyk can stand trial. 

“The legal test is only these two main issues: Do you understand the charges against you, and can you assist in your defense?” explains Valerie Hans, a professor at Cornell University Law School. “If he’s filing motions without any help, I would guess the judge would look very favorably on that.”

If a defendant is found incompetent, Hans says, he wouldn’t be set free. “It’s not like you’re going to a country club,” she says. “It would be a secure facility dealing with people who have a combination of criminal activity and mental health problems.”

The toddlers Kowalczyk allegedly abused might not recall the crimes or be called to testify. But they are nearly teenagers today and have been kept in limbo by Kowalczyk’s actions.

“Seven years, 13 continuances and nine lawyers—this is appalling,” says Meg Garvin, executive director of the National Crime Victim Law Institute at Lewis & Clark Law School. “You can’t really grapple with the next stage of your life when this stage is not completely over.” 

 
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