The prosecutor's office now threatening to bring criminal charges in the leak of former Gov. John Kitzhaber's emails has an ethical conflict of interest in the case.
It turns out that a nephew of Kitzhaber's is a senior prosecutor in the Marion County District Attorney's office—the same office that this month threatened the leaker of the Kitzhaber emails, Michael Rodgers, with thousands of counts of official misconduct.
Rodgers is the state official who prevented Kitzhaber's office from deleting the emails from state servers.
Rodgers went public this week with his account of why in February he handed WW 6,000-plus emails that Kitzhaber had stored in state computers.
But Kitzhaber's relationship to Matthew Kemmy, the son of one of the former governor's sisters, presents a potential conflict of interest for the Marion County DA.
Kemmy, who has been a lawyer for 18 years, has handled numerous high-profile prosecutions for the Marion County DA, including a 2008 bombing of a Woodburn bank that killed two police officers and resulted in death sentences for the bombers.
Kemmy was on the guest list at the governor's mansion for a 2011 Rose Bowl watching party hosted by Kitzhaber, and was also on the guest list for Kitzhaber's 2014 inauguration.
The criminal investigation into the Kitzhaber email leaks began on Feb. 18, when then-Department of Administrative Services director Michael Jordan called in the Oregon State Police after WW first published excerpts from the emails.
The state data center where the emails were stored is in Marion County, and the district attorney's office there would normally review the evidence and decide whether to bring charges.
Marion County District Attorney Walt Beglau tells WW there is no actual conflict of interest with his office being involved in the case while employing Kitzhaber's nephew.
"People might wonder, 'Did that influence what's going on?'" Beglau says. "But there's no actual conflict here."
Beglau says because of the appearance of a potential conflict, he has asked Yamhill County District Attorney Brad Berry to take control of the case.
Despite that move, Beglau's office is still involved in the investigation into the leak of Kitzhaber's emails.
On May 6, Marion County DA senior Deputy District Attorney Paige Clarkson called Michael Levine, the criminal defense lawyer who represents Rodgers. Clarkson offered Levine a choice, Rodgers says: Rodgers could resign his job as the acting administrator of the state data center, or face criminal charges, one for each of the 6,000 emails he'd leaked.
The fact that Clarkson—rather than a Yamhill County prosecutor—contacted Levine means the Marion County DA's office has not recused itself from the case.
Some prosecutors find that troubling.
Three experienced Oregon prosecutors said on background that, once a county prosecutor's office declares a conflict itself in a case, that office usually steps aside.
"If Marion County filed a conflict notice and continued to be involved, that would be a serious matter and really inappropriate," says one prosecutor who asked not to be identified because his office works with Marion County.
Clarkson, the senior Marion County senior deputy district attorney, acknowledged contacting Rodgers' attorney earlier this month but would not discuss specifics about that communication.
She claims Berry is in charge of the case.
"Yamhill County's DA, Brad Berry, has been reviewing this case at our request. Any charging decision will ultimately be made by Mr. Berry," Clarkson said in statement. "All communication with Mr. Rodgers' attorney was made after full consultation with Mr. Berry."
Berry was traveling and unavailable for comment.
The Marion County DA's continued involvement in the case surprises Tung Yin, a professor of criminal law at Lewis & Clark Law School.
"It sounds like there's an issue there," he says. "Is Marion County recused, or are they not recused? If are recused they should be out of the loop and shouldn't be having any interaction or communication with the suspect's attorney."