A Marion County prosecutor suggested in a criminal court hearing last month that a judge should sentence a defendant before the Nov. 8 election so voters could consider his decision when deciding whether to keep him on the bench.
The discussion came at the end of a trial in which a former Woodburn School District teacher and football coach was convicted Oct. 13 of sexually abusing an underage student in Marion County Circuit Court. At the hearing, Deputy District Attorney Brendan Murphy asked Circuit Judge Erious Johnson to schedule the sentencing ahead of the election.
Johnson is running to keep his seat in the race for circuit judge against Amy Queen, a Marion County deputy district attorney and a colleague of Murphy’s. Murphy is endorsing her in the election, according to her campaign website.
Brian Gallini, dean of Willamette University’s College of Law, told Salem Reporter Tuesday that Murphy’s statement conflated the three separate branches of government.
“We ask judges to evaluate the facts and apply the law to that particular case. So trying to kind of integrate the way an election may or may not play out into that process,” he said, “those are just two fundamentally different things, and to conflate the two injects a level of confusion that I think is completely inappropriate.”
Johnson declined to comment Tuesday on the interaction. Murphy also declined, saying in an email Monday that the criminal case remained open.
District Attorney Paige Clarkson wrote in an email to Salem Reporter Tuesday, “This is an open case so neither me nor anyone in my office can comment on this matter in any way.”
Clarkson was re-elected in May over her opponent Spencer Todd, a public defender. She spent over $207,000 on her campaign.
Queen did not respond to a request for comment sent to her campaign email Monday.
Gov. Kate Brown appointed Johnson to the bench on Feb. 2 to fill a vacancy in the circuit court created after Judge Susan Tripp retired in October 2021. Judge’s races in Oregon rarely have challengers, but Queen, who has worked nearly 20 years as a Marion County deputy district attorney, looks to unseat him in the election.
Johnson has received $92,263 in campaign contributions, spent $40,641 on his campaign and has a cash balance of $51,622 as of Tuesday, according to the Secretary of State’s office.
Queen has received $50,116 in contributions, spent $11,570 and has a $38,547 cash balance.
Gallini said any complaint about Murphy’s statements would have to be filed through the Oregon State Bar.
The dean said he would be surprised if any formal discipline was issued about the matter, but said Murphy’s statements amounted to trying to inappropriately influence the public about an election.
“Just as a cultural norm, it’s inappropriate to even suggest because these are, generally speaking, public proceedings,” he said of Murphy’s statements. “It invites the public to draw conclusions that are totally improper.”
The jury on Oct. 13 found 41-year-old Nicholas Federico, of Salem, guilty of eight counts of sexual abuse and two counts of luring a minor, according to court records.
Following the verdict, Johnson ordered Federico be taken into custody. His attorney, Zachary Stern, asked Johnson if they could schedule a sentencing hearing for Nov. 14.
Murphy said that Federico is entitled to at least 48 hours in jail and should be sentenced as quickly as possible because the victim in the case had been waiting since 2019 to see the case resolved.
“And then I will be frank with the court,” Murphy said. “I do know that there is elections pending. I do believe that this court should sentence this defendant because it is informative for the electorate. I don’t want to be disingenuous about that. I do think that that is important to the state. I think it informs the public about this court’s view on what the appropriate sentence would be, and so if we would ask that this court sentence this defendant –”
Johnson interrupted him. “Hold on, counselor Murphy. Let me process that,” he said, before pausing for about ten seconds. “So you’re trying to remind me that I have an election to kind of push this along?”
“No, your honor,” Murphy replied.
“Did I hear that wrong?” Johnson said.
Murphy said, “Your honor, that is not how I characterized it.”
“Did I hear that wrong?,” Johnson repeated. “I know what you said, but is it out of bounds that that’s how I heard it?”
Murphy said, “Yes, Your Honor. We’re saying that that’s an important issue that’s pending, and we believe that this case should be sentenced before that. So pushing it along, I don’t know if I’d characterize it the same.”
“Not push, but –,” Johnson said.
“Well, that’s what the court said,” Murphy said. “I didn’t –”
“No, that’s how I heard it,” Johnson said. “That was – I’m still processing, once again, in real time. That was an interesting – one more time? Because there’s an election, what? This should get wrapped up quickly?”
“No, we believe that the defendant is entitled to 48 hours in jail. We believe that it should be — that, of course, should be–” Murphy said.
Johnson interrupted him, “No, say what you said.”
“Right,” Murphy said. “And then this court, we believe, in part because of the pending election, should sentence this case before the determination of that election.”
“Why?,” Johnson asked.
Murphy responded, “Because I believe that it’s informative to the community about how the court would view this sort of a case. This is a high-profile case, we believe that a high profile case can be informative to the electorate about what specifically this Court’s opinion about this type of offense would be, and we believe that that is informative.”
Johnson sighed. “Man. You learn something new every day,” he said.
He told the attorneys he had the afternoon of Oct. 27 available.
Murphy asked to confirm the date. “Yes,” Johnson said. “Since you’re speaking on behalf of the electorate, is that satisfactory counsel?”
“I do represent the people of Marion County, your honor,” Murphy replied.
Johnson said, “And I’m asking you, is that satisfactory?”
“Thank you, yes,” Murphy said.
But on Oct. 18, the sentencing hearing was scheduled for Nov. 15, one week after the election.
Contact reporter Ardeshir Tabrizian: [email protected] or 503-929-3053.
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Ardeshir Tabrizian has covered criminal justice and housing for Salem Reporter since September 2021. As an Oregon native, his award-winning watchdog journalism has traversed the state. He has done reporting for The Oregonian, Eugene Weekly and Malheur Enterprise.
