Linsday Family Testifies on Post-Conviction Relief Abuse
CRIME VICTIMS UNITED
Under Oregon law a convicted criminal who has exhausted all criminal appeals can go to civil court to claim his attorney was ineffective, claim the law under which he was convicted is unconstitutional, or for any number of other reasons that have nothing to do with his guilt or innocence. This "post-conviction relief" (PCR) civil proceeding is often a fishing expedition and last-ditch attempt to escape consequences for a crime.
The criminal's attorney currently has the power to force victims to submit to questioning and to divulge personal information as the PCR hearing approaches - whether it is relevant or not. This forces victims to unnecessarily relive painful episodes in their lives.
Senate Bill 985 will stop the gratuitous use of forced depositions by allowing a judge to rule on whether the deposition is legitimate.
When an accused person is acquitted, it's over. But when there is a conviction, it's never over for the victim. It just goes on and on, as you will read in the following testimony from a family that lived through this nightmare.
The Linsday family, in case you had not noticed, is unique. My husband, Phillip, and I were high school sweethearts who married at the young age of 18. On our wedding day, we vowed to never live a boring life. We planned to have precisely two children early and then do something exciting such as join the Peace Corps. Well, fate had other ideas. We did have two sons and then added a surprise third. We thought that our family was complete with our wonderful boys; Matthew, Benjamin, and Noah. Phillip was a successful general contractor with a bustling business and I was a very involved full time mother. It didn't take us long, though, to realize that we really wanted a daughter to fill out our family. Adoption, especially international adoption, had always intrigued us so we applied to adopt from South Korea. Phill traveled to Seoul and brought our lovely Tess home to us at the age of four months. Two years later, Kamilly, aged 10 months, arrived also from South Korea. Now, our family was complete. That's what we thought, until we began learning about the 400,000 waiting children in the US, mostly who were of color and had special needs. A plan started formulating. We made the life-changing decision to open our family to these children.
In the next few years, eight more children joined our family--Isaac, Adeline, Zeke, Ivy, Gideon, Simon, Elliott, and Garrett--all with a myriad of physical, developmental, emotional, and mental health challenges due to their biological parents' substance abuse, their own deep loss and abandonment issues, and their experiences in the not always kind foster care system. Seven of our children carry with them the effects of crack cocaine exposure. Our youngest child was born addicted to methamphetamines. Each, though, is so much more than a "diagnosis" or a "label". Each is a vibrant, unique, lovely child filled with a desire to learn, to help others, and to care deeply. Our family expanded both physically and also emotionally. We suddenly found ourselves sought after for advice on the daunting tasks of raising children with challenges. We became active in the North American Council on Adoptable Children and learned advocacy from the ground up. Until my retirement last year, I served as this organization's Oregon representative, advocating for and helping hundreds of families. We've served on countless Boards and committees concerned with special needs children, special education, and post-adoption services advocacy. By the time our children were all in school, we felt as if we were hitting our stride. Our kids were all receiving the services they needed and all seemed to be growing and blossoming within the circle of support, consistency, and never-ending love in our home. This love came not only from Phillip and me but just as importantly from their five older siblings whom the younger children adored. We built a spacious home in Ashland's beautiful historical district and our children were fortunate to go to one of the top-ranked elementary schools in the state. Ashland has been good for us; always welcoming, always encouraging of our work with our children. As our older children grew up and found their own ways, we and the younger children enjoyed what all families enjoy--day trips, picnics, soccer, pets--lots of pets!! We thought life was pretty wonderful and turned our attention to providing our very special children with a safe, comfortable, and innocent childhood.
Then, suddenly, in the Spring of 1998, Phillip and I experienced one of a parent's greatest nightmares. Our 12 year old son, Isaac, came to us and simply and quietly said that he "had something to tell us". Our hearts broke as he disclosed that he had been the victim of a sexual crime. Over the course of the next week, seven more of our children, Adeline, aged 10, Zeke, aged 10, Ivy, aged 10, Gideon, aged 10, Simon, aged 9, Elliott, aged 8, and Garrett, aged 7, came forward and tearfully disclosed that they too had been raped and sodomized and subjected to horrific humiliation. They did not have the words to fully describe these crimes but we understood all too well. Their rapist was a young man, our fourteen year old neighbor-- Ryan Douglas Smith.
Mr. Smith is the son of the Ashland elementary school librarian and a local optometrist. He had befriended our children and engaged them in helping him with his hobby of raising birds. Our children jumped at the chance to be friends with him as most of them struggled socially and had few friends of their own. They felt so special to be chosen to help Ryan, their teen-aged friend. Mr. Smith groomed them carefully. He plied them with treats and tempted them with the excitement of secrets. When he encountered a child that balked against his sexual abuses, he flat out threatened them with a gun which he displayed to them and with the horrible threat that if they told, he would kill their precious older sisters, Tess and Kamilly. He let them know that he was always watching them, even sneaking into our home at night to remind them of his threats. He systematically went about stealing their innocence and preying on their delays. He was amazingly successful as they kept their awful secret for months.
The next year was a mind-numbing blur. We spent our days in meetings and sessions with the Ashland Police, the Jackson County Advocacy Center, Victims Advocates, and the District Attorney's office. Our children logged over 75 therapy appointments that summer and fall. Each of these agencies rightfully gained our confidence, trust, and admiration. We were treated fairly and kindly. Our children were listened to and believed. Without these caring supports for our family during that time, we would surely have collapsed under the pressure. We tried valiantly to hold onto some semblance of sanity and order as we watched helplessly as our children--both the victims of the rapes and the older siblings-- spun out of control with shame, guilt and pain. There were days when we didn't know if we could go on, if our marriage would hold, if we could literally put one foot in front of the other. Our personal support system, namely our community and school, tried to help. But it is so hard to know what to say to a parent of a rape victim. We learned to hold our heads high as the Rogue Valley followed our case through the media. We suffered silently and often alone as we were not allowed to talk about the crimes amongst ourselves until the trial. Every birthday, every holiday, every graduation, and every special event was ruined as something from the "case" always took precedence. To this day, I'm certain that not one of us remember much other than misery in the year of 1998.
The trial finally occurred in February 1999. For eight long days, our family climbed the marble stairs to that courtroom and one by one, each child was led up to the witness stand to sit alone and describe their rapes, sodomies, and other sexual abuses in graphic and humiliating detail. I was warned not to make eye contact with my children so all I could do was stare out the window as my heart broke with their quiet, unsophisticated, shamed words that cemented their loss of innocence. I felt Phillip's tense anger next to me and watched the deadness in our older children's eyes as they struggled with the fact that not one of us had been able to prevent these crimes. Our sense of helplessness was insurmountable.
We had to listen as the three well-respected defense attorneys tried to break our children's will, as they tried to portray our children as liars. We had to contain our rage as the defense attempted to place the blame on the children themselves--to convince Judge Schiveley that our children simply acted out sexually together and then conspired to get Mr. Smith in trouble. I had to testify for seven hours as to the disabilities of each of my children and to patiently go over every infraction and misbehavior of theirs since their birth. The detectives, the counselors, the doctors testified. We all watched the videos made of the children's excruciating disclosures. We listened as the Smith family portrayed Ryan as a wonderful, tender, and caring boy who would never hurt anyone even as other victims stepped forward to assert that they too had been hurt by him. Not one shred of Mr. Smith's history was admissable in court. This seemed outrageous to us as our children's history was examined, debated, and misrepresented. Weren't they the victims? Eight long days passed in that courtroom. There were unending tears.
On Wednesday February 10, 1999, Judge Mark Schiveley announced that he was ready to read his verdict. Our children held each other's hands and crowded in close to Phillip and me as he read the verdicts: guilty of five counts of Sexual Abuse 1, guilty of four counts of Sodomy 1, and guilty of two counts of Rape 1. It was over. We gently led our children down those stairs and held them as they cried. We promised them "never again" would we have to discuss these terrible crimes in public and that life was going to begin anew from that day forward. We went home.
One month later, Phillip and I attended Mr. Smith's sentencing hearing. For his eleven convictions of Rape 1, Sodomy 1, and Sexual Abuse 1 of disabled children aged seven through twelve, Mr. Smith received eight days time served in the Juvenile Detention Center, probation, and was ordered into community based treatment. Phillip and I felt as if we had been kicked in the stomach. How could a person who had committed such horrible crimes against such vulnerable and fragile children be released into the community? How were our children, his victims, going to feel safe? The Assistant District Attorney, Karen Loomis, argued vehemently against his release reminding the judge that had Mr. Smith been just a few months older at the time of his crimes, he would have come under the jurisdiction of the Measure 11 sentencing laws. Judge Schiveley, however, wanted to give Mr. Smith one more chance.
Our family did not have to worry about Mr. Smith being in the community for long. Three months after his convictions, we were called back to court for a hearing concerning his refusal to work with his treatment team. His probation officer, Ken Chapman, testified that Mr. Smith had failed his polygraphs and was in full denial of his crimes with his sex offender treatment therapist. Judge Schiveley immediately ordered Ryan Smith to be taken to the Oregon Youth Authority facility in Grants Pass. Because of a recent change in the Oregon law, Mr. Smith could be held there until the age of twenty-five. Once again, we felt a chapter was ending. We felt that we could now assure our frightened children that they were safe. We now turned our attention to helping our family heal. We strove to surround the children with protection, consistency, and comfort. We helped them all develop extremely fine work ethics by working for their father's construction company and doing community service. We learned to talk about the past without tears and to talk about the future with hope. For almost three years, we tried to move forward and not dwell on the pain.
It did not surprise us when we learned that the Smith family was mounting an appeal of the convictions. The Juvenile Justice system was exemplary at keeping us posted as to updates and changes in Mr. Smith's status at the OYA. We were a bit surprised, however, to learn that the family had hired a very prestigious out-of-state attorney for the appeal process. Phillip and I traveled alone to Salem to watch the hearing. Once again, we marveled at how our children and our family could be so misaligned and the facts so twisted. In October 2002, we received a 20 page decision by the Oregon Appeals Court. Presiding Judge Edmonds and Judges Armstrong and Kistler unanimously affirmed the convictions with an extremely detailed overview of the facts. The Court even stated that "youth's counsel did a commendable job with a difficult case". Would this be the end?
We learned, after the fact, that the case had been presented to the Oregon Supreme Court and was affirmed without opinion. We were moving on by now. Our lives were filled with growing teens, the weddings of many of our oldest children, and the births of delightful grandchildren. Our youngest children made us so proud as we watched their tender but always appropriate care of their new little nieces and nephews. It was almost as if they held their innocence even more precious than would be expected. They knew, only too well, how easily that innocence can be stolen.
In November 2004, we received notice that Ryan Smith was mounting a Post-Conviction Relief attempt. We had to turn to the computer to research what this meant. We spoke for the first time with Susan Gerber, Assistant Attorney General. She assured us that this process would almost certainly not involve us in any way. She reminded us that with the outcome of the Appeals Court and the Supreme Court, we had nothing to worry about. There was no new evidence and the original trial had been found to be without error. In retrospect, I believe Ms. Gerber truly felt we should not have any concerns. However, things quickly turned very ugly.
We learned that the Attorney General's office represented the veracity of the original case, not our children. This was, after all, a civil action brought by Mr. Smith against his attorneys alleging that they had failed to represent him adequately at trial. We were shocked beyond all reason when we received subpoenas to be witnesses FOR Ryan Smith. Nothing can remove from my memory the sight of my children reading their subpoenas on our front porch as the process server handed them out. Within minutes, we had tears and acting out. I felt our world spinning again. That evening we hid the subpoenas as we celebrated with our son Noah and his wife the news that we would soon have a new grandson. We sipped the champagne and hugged them not revealing that the subpoenas lay stacked on the dining room table. The next day, we numbly accepted another subpoena. This one was for all our family's records from the past fifteen years pertaining to the children's medical, emotional, educational, financial, and legal histories. We were confused, frightened, and shocked. The Attorney General's office recommended that we quickly hire a private attorney to have the subpoenas quashed. We kept wondering where our protections as victims had gone. How could this man keep victimizing our children and how could our state allow this?
It was recommended that we contact an organization called Crime Victims United. That next day, I contacted Steve Doell, and our family began a close relationship with him that continues to this day. Mr. Doell has stood steadfastly by us throughout this entire ordeal with Post-Conviction Relief. Thankfully he already knew quite a bit about the process and was able to educate us a bit more. He, though, was also shocked by this turn of events which had attacked our family. Our children had done absolutely everything asked of them by the Police, the District Attorney, and the Judge. They had made their disclosures, endured physical examinations, been videotaped, undergone countless therapy sessions, testified truthfully and then tried to put their lives back together. Seven years of healing had taken place. Now, Mr. Smith's new attorneys were requiring them to be deposed and to turn over all their personal records of the last fifteen years. This seemed just like another nightmare for all of us.
I am first, foremost, and forever a mother and a mother protects her children at all costs. And yet I was powerless, it seemed. Ms. Gerber and our personal attorney told us that in spite of all their motions and work to protect our children from deposition by hostile attorneys, it seemed unprevenatable given the way the Oregon law presently read. The new judge had no cause to stop the depositions.
I have never had a traffic ticket. I pride myself with being a law abiding citizen and an example to my children. However, early in summer 2005, I made a startling decision. I decided to defy the court and deny the subpoenas' orders. I decided that I would best serve my children by being held in contempt of court and jailed to protect them. There was no way that I would allow Mr. Smith's attorneys to tear open my children's barely healed wounds. We had spent seven long years healing and I did not have the luxury of that many more to heal again. My children were on the cusp of adulthood. We gathered the children and explained what might happen. We contacted the Ashland Police, my doctors, and the District Attorney's Office to let them all know of my plans. I spent many sleepless nights not knowing if or when I would be arrested. Never could I have imagined that I would be in contempt of any court.
Throughout all 2005 and 2006, our family's focus once again became Ryan Smith. Our days were filled with court appearances, hearings, more and more subpoenas, my charge of contempt of court and hundreds of phone calls. Once again, we had time stolen from our family. We could not attend to school dances, soccer matches, babies being born, weddings, graduations. We could celebrate nothing as all our time and energy was usurped by a horrible return of dedication to the "case". The children developed behavior problems, school problems, sleep problems, health problems. One child attempted suicide. We were so absorbed trying to protect them, we hardly had time to feed them and focus on them. How many times during those years did someone utter the words "this just isn't fair". How many times did someone cry out of frustration?
We called in all our supports. Our local District Attorney, Crime Victims United, the Children's Advocacy Center, State Children's Services, and Juvenile Justice all stepped up to the plate for us. Susan Gerber explained every step to us. Everyone seemed truly shocked and dismayed that we seemed to really have no protection from this onslaught. Because we have always tried to balance bad with good, we made a life-changing decision in late August 2005. Hurricane Katrina had just devastated the Gulf coast. Phillip decided to close his business down and go to help. Before a week was up, we had a convoy of trucks, trailers, a motorhome, tractors, a crane, $40,000 of donated emergency supplies and six Linsday children headed south. Our group landed in Biloxi, MS where we rebuilt a Buddhist Temple and established a distribution center. The children stayed two months working in the heat and humidity to help those who were suffering so greatly. Their work helped them put our legal troubles out of their minds and to concentrate on what life is truly about, helping others. Phillip worked around the clock fighting to keep his worries at bay. I stayed home with the remaining three children waiting to be arrested.
At every juncture, we once again were shocked at our lack of protections. While the children were in Biloxi, a judge ruled that if they did not return to the state immediately we would face further charges. Phillip flew home with them and we appeared at a court hearing. The judge berated me for not "respecting Ryan Smith's constitutional rights" and ignored my tearful pleas that she protect my children from deposition. She shocked us by announcing that rather than jailing me, she would sanction us for thousands of dollars for each day we failed to produce our children for deposition. We were backed into a corner.
Phillip took Tess and Kamilly, now in their early twenties, to their deposition which was held in Mr. Smith's attorney's office. Even though the court had clearly stated that Mr. Smith would not be present, as Tess entered the conference room, she came face to face with her siblings' rapist. She literally fell out of room sobbing into her father's arms. Mr. Smith was noted to be smirking. As Phillip and our daughters retreated to the parking lot, Mr. Smith's attorneys actually discussed putting a potted plant in front of Mr. Smith so that Tess could not see him. It was absolutely clear that no one seemed to grasp the trauma our family had endured. We resolved that no other Linsday child should have to confront their rapist. We immediately had our attorney negotiate a change of meeting place.
In December 2005, one week before Christmas and one week after the birth of our new grandson, our family appeared for deposition at the neutral and safe location of the Jackson County Children's Advocacy Center. We were successful in having the judge permit me to be present for each child's deposition and for a therapist to be present in the room. Once again, I testified for an entire day and each child testified for one to several hours each. The lack of compassion for our children was overwhelming. At one point, Mr. Smith's attorney turned to one of our children and said in a condescending voice, "this is a little difficult for you, isn't it?". The absolute cruelty took our breath away. We all breathed a sigh of relief when the two days were over. We had lost the battle but we had come through strong again. In January of 2006, we were notified that our schools, our doctors, and our social workers had all been subpoenaed to turn over all our personal records. At this point, nothing shocked us. Our attorney was successful in getting the Supreme court to issue a Writ of Mandamus preventing the action but over 3000 records had already been turned over. Interestingly enough, those documents were kept by Mr. Smith's attorneys and used in drafting motions. Susan Gerber worked closely with us to determine which documents were original to the trial and which had been generated up to the present. She also prepared us for the upcoming Post-Conviction Trial itself.
In November 2006, two days before Thanksgiving, Ryan Smith's Post-Conviction Trial was held before Judge Pat Wolke of Josephine County. Our entire family attended as most of us were subpoenaed. The children bravely entered the courtroom and faced the man who had raped them so many years ago. Not one of them turned from his gaze. It was clear as we sat in the company of our many supporters that our children had grown and matured and healed. In spite of all the hurdles and assaults we had withstood, we were strong and we were united. Judge Wolke heard arguments, testimony, and closing statements for two days. Ms. Gerber impressed us greatly with her knowledge of our case and the law. Our children sat patiently and respectfully. We had fought so hard against our involvement in this trial. However, in the face of being forced to participate, we gained a sense of closure and pride in the never-ending strength of our children. We resolved that day to make certain that no other victim should have to endure what we endured.
Two months after the trial, we received an excited call from Ms. Gerber. Judge Wolke had found no cause to set aside the convictions. The Post-Conviction Relief was denied. Ryan Smith would stay in the Oregon Youth Authority until he was twenty-five. He had exhausted all avenues. He was guilty of raping our children.
This is our family's story. We ask that our elected legislators consider it carefully. Victims deserve protection. Many of those protections already exist in our state and are put to use daily by those harmed by crime. Please extend those protections to victims in the Post- Conviction Relief process. Victims require time to heal. Victims do not want to face the person who committed crimes against them. Victims do not want to be forced to testify over and over again about their pain. Victims and their families want to move on with their lives. We ask that you assure them this protection.
Simon Linsday - March 26, 2007 (listen)
Testimony before the oregon Senate Judiciary Commitee
Senate Bill 985
Chairperson: Senator Ginny Burdick
Vice Chair: Senator Roger Beyer
Members: Senator Floyd Prozanski, Senator Vicki Walker, Senator Jeff Kruse
My name is Simon Linsday and I am a Sophomore at Ashland High School. I am seventeen years old and was adopted when I was two years old. I play Varsity Soccer and am a pretty good student. I have twelve brothers and sisters and eight dogs and two cats. When I was only nine years old and in second grade, I was raped by our next door neighbor--a fourteen year old boy named Ryan Smith. He raped me on two different days in the Briscoe School bathroom. I was a really little kid and he seemed huge. He told me he was my friend and that it wouldnÕt hurt. He was at school visiting his mother who was our librarian. He told me that if I told anyone, he would kill me. I canÕt tell you how bad the rapes hurt. I will never forget them until the day I die.
Our family had to go to court and testify to what Ryan did. It was terrible to have to get up and talk about such personal stuff when you are a little kid. It was horrible to see all my brothers and sisters and parents hurting too. I was very glad when Ryan was found guilty and sent to the OYA. Three of his convictions were because of me. I thought IÕd never have to see him again.
I am here today to ask you to make laws to keep victims from having to testify over and over again. When I found out that I had to be deposed and tell my story again, I started having nightmares. They just wonÕt go away. I also think that sometimes Ryan is following me. I canÕt ever forget that he told me heÕd kill me or hurt my sisters if I told. ItÕs not easy being a teenager and trying to do well in sports and in school and have friends while also worrying about some crazy person who hurt you a long time ago.
So, please change the laws so no one else has to do what I had to do. Thank you very much.
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