The Oregon Court of Appeals held last year that a prisoner’s release date had been improperly rescinded due to a public outcry, contrary to state law.

Oregon prisoner Sidney Dean Porter was sentenced to life imprisonment for beating police officer Frank L. Ward to death in 1992. Porter’s blood alcohol content (BAC) was more than three times the legal limit at the time of the crime.

On July 18, 2012, the Board of Parole and Post-Prison Supervision (Board) found Porter was likely to be rehabilitated. During that hearing, Ward’s brother forgave Porter and said he should get a second chance at life outside prison.

At a November 2012 hearing, the Board set a June 7, 2013 release date for Porter, which was affirmed at another hearing in February 2013. Despite being notified by the Board, the prosecutor did not appear at the hearings. Nevertheless, on April 3, 2013 the Oregon District Attorney’s Association, Oregon Sheriff’s Association and Association of Chiefs of Police petitioned the Board to reverse its decision.

“I’m not ready for Dean Porter to be released,” said Grant County Sheriff Glenn Palmer. “I never thought I’d see the day he’d get out while I was still in uniform.”

Then-executive director of the Board, Jay Scroggin, explained that he would not reopen the case, finding there was not a compelling enough reason to do so.

“I’m a process guy,” he said. “Is there any chance of having a rehearing at this time? No.”

Refusing to take “no” for an answer, prosecutors and police officials turned to the nine-member House Judiciary Committee. One third of the committee’s members were former police officers, including Chairman Jeff Barker and Representatives Wayne Krieger and Andy Olson, both retired Oregon State Police troopers.

For the first time in the Board’s 108-year history, then-Chairperson Kristin Winges-Yanez and executive director Scroggin were called before the Judiciary Committee to defend the Board’s decision in a parole case.

During the two-hour hearing, prosecutors and police chiefs from across Oregon testified against Porter’s grant of parole. They criticized the Board as being poorly informed, in part because Grant County District Attorney Ryan Joslin had not attended and testified at Porter’s hearings – which was attributed to Joslin somehow not seeing the multiple hearing notices.

“There is a lot of information they simply did not have,” said Washington County prosecutor Bob Hermann, who added Porter should remain in prison. “The public deserves a rehearing on this case. Frank Ward deserves nothing less than that.” Committee Chairman Barker agreed, declaring that Porter’s two decades behind bars were “not all that long for beating a cop to death.”

Sadly, it appeared that Ward’s brother was shamed into reversing his 2012 expression of forgiveness, as he told the Judiciary Committee that he thought releasing Porter would be a betrayal of his brother’s memory and other Oregon police officers.

To their credit, Board Chairperson Winges-Yanez and executive director Scroggin both publicly stood by the Board’s decision to parole Porter during the May 28, 2013 hearing. That evening their boss, Governor John Kitzhaber, also announced that he stood by the decision, noting the parole agency was an “independent Board.”

Not so much.

“I’m writing you to address the Board’s decision regarding inmate Sidney Dean Porter, and to ask you to vacate your ruling and set a new hearing to determine whether or not Mr. Porter should be released from custody,” the Governor wrote to Winges-Yanez on June 3, 2013 – just four days before Porter’s scheduled parole date. “Let me be clear that I am not trying to influence the Board’s final decision but am concerned with the process by which it was made.”

The next day the Board issued an order “on its own motion,” rescinding Porter’s release date and reopening the case for reconsideration. Scroggin said the Board had decided to reopen the case “after consultation with the Governor’s office.”

Representative Barker applauded the Board’s reversal. “It seemed like it was going to be such a travesty to let him out,” he said. “It was a vicious, brutal murder.”

Barker also suggested that people may still hold a grudge against Porter, stating, “We may be saving his life by keeping him in a little longer.” That not-so-subtle threat by a former police officer had chilling implications, given that only police and prosecutors had publicly objected to Porter’s release.

The Board held a hearing on September 30, 2013 to reconsider whether to parole Porter. In a clear show of force, at least thirty uniformed police officers attended that hearing. Many others sent letters. Contrary to his Board testimony a year earlier, Ward’s brother echoed the remarks of prosecutors and officers, criticizing Porter for a lack of “true remorse.”

Relying on the same psychological evaluation it had used at an earlier hearing to find Porter did not suffer from a severe emotional disturbance that rendered him a danger to the community, the Board found on October 15, 2013 that Porter did in fact suffer from a present severe emotional disturbance. It then postponed his release date two years, until June 2015.

Rosemary Brewer, legal director for the Oregon Crime Victims Law Center, who represented Ward’s brother, said her client was relieved by the Board’s decision.

“He felt that this time the board heard the true story of what happened that night” when Ward was killed, she said.

In February 2015, the Board subsequently postponed Porter’s June 7, 2015 release date an additional five years, to June 2020. Days later, Oregon Governor John Kitzhaber was forced to resign from office in disgrace due to unrelated influence peddling, and Porter filed a legal challenge to the postponement of his parole.

On September 21, 2016, the Oregon Court of Appeals held the Board had improperly rescinded Porter’s initial release date. Yet interestingly, the eight-page decision failed to make a single reference to the political drama involving prosecutors and police officials, or the Governor’s unprecedented intervention that precipitated the Board’s decision to reopen and reconsider Porter’s parole.

Once the Board establishes a release date, a prisoner is legally entitled to release on that date unless one of three statutory grounds for postponement exists, the appellate court wrote. “The Board had set a release date for June 7, 2013. Just before, the board summarily ‘rescinded’ and, as a practical consequence, postponed that release date without prior notice of a hearing. The board did so, at that time, without making one of the three determinations necessary under ORS 144.125(1)(1991) for an extension of a release date.”

The Court of Appeals rejected the Board’s argument that OAR 255-080-0012 authorized its decision to rescind Porter’s parole. “By its own terms, that administrative rule does not authorize the board to rescind a release date without a hearing,” the Court held.

Importantly, the appellate court followed Supreme Court precedent providing that “if a release date was scheduled and elapsed without the board first having found a valid reason to postpone release, but the inmate was erroneously not released, later events cannot furnish a basis for postponing release; the inmate is entitled to immediate release.” In other words, the Board lacked the authority to postpone Porter’s June 7, 2013 release date at the subsequent rehearing.

Once his initial release date elapsed, Porter was legally entitled to release. Therefore, the Court of Appeals reversed and remanded the case to the Board with instructions to reinstate Porter’s initial release date and immediately release him. See: Porter v. Board of Parole, 281 Or. App. 237, 383 P.3d 427 (Or. Ct. App. 2016), petition for review denied.

Porter’s attorney, Andy Simrin, applauded the ruling, noting, “Public outcry is not a valid reason for keeping someone in prison.”

Porter, 57, was finally released on March 24, 2017 after the state’s appeal to the Oregon Supreme Court was denied. He had served 25 years of his life sentence. 

Additional sources: Oregonian, www.bluemountaineagle.com

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