On May 11, 1997, Duane Hayes was shot to death by his girlfriend, Danielle House. A grand jury returned a murder indictment against House. The case was to be tried in the Clackamas County court of Judge John Lowe. The defendant requested a judicial trial in which the judge alone would rule. This was not surprising. Because of his reputation for leniency, a jury is rarely seen in Judge Lowe's court. However, Measure 40, passed by the voters of Oregon in November of 1996, established the right of the victim to a jury trial. Senate Bill 936, passed by the Oregon Legislature in May of 1997, also established this right. The prosecutor asserted the right to a jury trial and on February 21, 1998, the case was tried in front of a jury in Judge Lowe's court.

The defendant claimed self-defense. However, there was no evidence to support this claim. Investigators proved that the gunshot was fired from a distance of 5 to 11 feet. The defendant changed her story three times during the police interview and when she testified in her own behalf she could not explain how the supposed struggle took place. She had hid the gun earlier in the day and was the only person who knew where the gun was. She had used a similar gun in the same house in a similar incident four years earlier. There was no history of violence or abuse on Duane Hayes' part.

The jury found the defendant guilty of first-degree manslaughter. Because Judge Lowe believed that Measure 40 and Senate Bill 936 were unconstitutional, he wrote and sealed his own verdict - an acquittal - to be used if Measure 40 and Senate Bill 936 were overturned. Furthermore, Judge Lowe ignored sentencing law established by Measure 11 in April of 1995. Under Measure 11, the minimum punishment for first-degree manslaughter with a firearm is 10 years in prison with no possibility of parole. Judge Lowe sentenced the convicted Ms. House to 5 years in prison, with a virtually automatic one year off for good behavior. Ms. House was taken to the State Womens' Prison in Salem.

In June of 1998, the Oregon Supreme Court ruled that Measure 40 was invalid because it amended more than one part of the constitution. However, the court did not rule on the substance of Measure 40 nor did it rule on the constitutionality of Senate Bill 936, which remained the law.

A hearing was held on October 22 to rule on the defense counsel's contention that Ms. House's rights were violated because she had a jury trial against her wishes, and that Ms. House should be released from prison pending a ruling on the constitutionality of the prosecution's right to demand a jury trial.

Mona Simons, the sister of Duane Hayes, enlisted the help of her family and friends, as well as the help of Crime Victims United, to make sure that the victim was represented at the hearing. About two dozen supporters were present, including Mona's husband Steve and her brothers, Kent and Mack. Mona and her family want justice to be done. They want Ms. House to serve her full Measure 11 sentence for the killing of Duane Hayes. They want Judge Lowe to follow sentencing law and to be held accountable if he does not.

The convict's counsel, Ingrid MacFarlane, argued that Ms. House should be released because she was entitled to a non-jury trial. She contended that the Oregon Supreme Court, in ruling Measure 40 invalid, had struck down the victim's right to a jury trial.

The counsel for the prosecutor, Matt Mattox, gave a detailed account of Ms. House's conduct, before the killing of Duane Hayes and during the pre-trial period. He stated that Ms. House had a 15-year police record, including assaults in 1983, 1989 and 1991, a menacing charge in 1993, and DUI convictions. The menacing charge stemmed from a dispute she had with a former boyfriend during which she fired two shots from a gun. Ms. House's former husband testified that she had tried to run him over with her car and had tried to stab him. After her arrest for the killing of Duane Hayes, Judge Lowe set bail at $75,000 and released Ms. House on the condition that she refrain from drug and alcohol use. While on bail, Ms. House was apprehended by police, in a state of severe intoxication. Judge Lowe reset her bail at $250,000 and she was returned to jail. Prosecutor Mattox concluded that Ms. House could not be trusted to obey terms of release and that releasing her would put the public in danger.

Judge Lowe ruled that Ms. House's right to a non-jury trial was violated. However, he agreed that she could not be trusted to obey terms of release. He noted that a case was scheduled to be heard before the appeals court on November 10, 1998 that would address the jury trial issue. He ordered Ms. House to remain in prison and indicated that he would reconsider after the appeals court ruled.

On April 1, 1999, the Oregon Supreme Court ruled the victim's right to a jury trial unconstitutional. On April 8, 1999, Judge Lowe set the killer free on several conditions, one of which was that she abstain from drinking or frequenting drinking establishments.

The Saga Continues

On December 9, 1999, a hearing for Danielle House was held in Judge Lowe's court in Oregon City. Mona and Steve Simons were there along with about a dozen other people, including Bob and Dee Dee Kouns. The purpose of the hearing was to decide if Ms. House should be reincarcerated for violating the terms of her release. The issue came up after a November 14, 1999 incident in which Ms. House was part of an altercation that involved drinking.

Matt Mattox, the Clackamas County prosecutor, represented the state. Danielle House was present, represented by her defense attorney.

Matt Mattox called his first witness, Deputy Brandon Claggett, a deputy sheriff in the Clackamas County Sheriff's office. He works in the Mount Hood area. He testified that in the early morning of November 14, he was dispatched to 69947 East Highway 26, #2. He arrived around 12:30 AM. He found Danielle House and a 16-year old young man who lived in unit #1 at the same address.

He testified that Danielle House exhibited signs of intoxication - red eyes and slurred speech. He saw empty and open wine and beer containers. There was an odor of alcohol from her mouth. She said that she and her boyfriend, Robert Wayne Minter, argued. She tried to close the door on him and he tried to get in. She opened the door and kicked him in the groin. He had left the premises when Deputy Claggett arrived.

Deputy Claggett noticed broken glass which Danielle House told him was from a picture frame. He noticed a "butcher knife" with a 10 inch blade in the living room area. Ms. House told him she grabbed the knife but dropped it before opening the door and kicking Mr. Minter.

Deputy Claggett saw an empty six pack and an empty wine bottle. Ms. House told him she had a couple of glasses of wine at the Shack restaurant. She said she worked on Friday nights at the Brightwood Tavern.

Deputy Claggett stated "I believe that Ms. House was under the influence of intoxicants", "I did not believe that her condition was consistent with consuming two glasses of wine", and "I believe that she was intoxicated and her capacities affected".

The defense attorney made the points that Deputy Claggett wrote in his report that "I determined no crime occurred on this evening" and that Mr. Minter denied that he was cut with the knife.

Matt Mattox then called Deputy Jody Westerman, a patrol officer in the Clackamas County Sheriff's office. She spoke with a Mr. Hanson (?) at his place of work - a bar at the Resort At The Mountain. He dated Danielle House a couple of years ago. He said he witnessed her drinking quite frequently since her release from prison. Deputy Westerman later attempted to serve him with a subpoena but he was nowhere to be found.

The defense attorney submitted evidence that Ms. House was taking Antibuse, a drug for treating alcoholism. Apparently she started taking this recently. It is not clear exactly when. He submitted evidence that she is involved in Alcoholics Anonymous and Narcotics Anonymous. It is not clear when this involvement started.

The prosecutor, Matt Mattox, made a statement to the court: Ms. House remains convicted of Manslaughter I. On releasing her following the appeals court decision, Judge Lowe stated "Ma'am, it would be a huge mistake for you to conclude that this matter is concluded. If you violate the terms that I have set, I will revoke your release". She violated the same terms while on bail, before the trial. She has not only taken alcohol on a regular basis but has taken work at a bar. She can not be trusted and should be returned to prison pending appeal of her case.

The defense attorney made a statement: The voters rejected Measure 40. Ms. House had a right to a non-jury trial. The issue comes down to whether or not she violated release conditions. She is an alcoholic. She should have taken Antibuse earlier. The question is whether she is learning as she goes along. The terms of release should be modified. Relapse seems to be a part of recovery when it comes to alcoholism. We are all hoping that the appeals court will make a decision soon.

Judge Lowe then reflected for quite a while - between 5 and 10 minutes, while everyone waited. He said: "Ms. House, it is clear to this court that your alcohol problem is far more severe than you understand. The only reason that you are out of prison is based on this court's opinion that the court's verdict and not the jury verdict will become the legal verdict. It is only because of this that I have any hesitation . . .

Judge Lowe ordered that Ms. House remain free and modified the terms of her release to require her to take Antibuse under monitor and submit proof to the court and to the D.A. He ordered that she attend AA and not work in or frequent an establishment whose primary purpose is the serving of liquor. "If you continue to violate the terms, I will tend to agree that maybe the best place for you is prison". Upon questioning from Matt Mattox, Judge Lowe ordered that Ms. House submit proof of compliance weekly.

Conclusions

This case illustrates a number of points concerning the state of justice in Oregon.

One point is the importance of the crime victim's right to a jury trial. It is an important safeguard that is needed to protect victims from incompetent or biased judges.

Another point is the contempt with which some criminals view court orders. During the debate over Measure 71, one of the arguments of opponents was that it is not necessary to deny bail to criminal defendants, no matter how vicious, because the judge has the power to impose conditions for bail. This case illustrates the obvious - that criminals routinely ignore judges' conditions.

Another point, one that Mona and Steve Simons feel strongly about, is the need to hold judges accountable for their rulings. Judge Lowe's disregard of Measure 11 is an affront the voters of this state who passed the measure with by a 67% to 33% margin. It is also an affront to the family of Duane Hayes who want the killer of their loved one to be punished as required by law. This case is by no means an exception - this is Judge Lowe's typical behavior. However, his reelection is virtually guaranteed by a judicial election system that is heavily weighted in favor of the incumbent. Furthermore, the justice system has erected barriers that make it extremely difficult for citizens to review the performance of judges.

Finally, this case illustrates once again the unbelievable burden of the family of the victim. Everyone understands that when your loved one is murdered, there is tremendous anger and grief. You may even understand that going through drawn-out pre-trial hearings and a trial in which you see the perpetrator presented as the victim will be wrenching. But do you understand that, after the pre-trial hearings, after the trial, after the conviction, it will be up to you to ensure that justice is done and that the perpetrator is punished? That it will be up to you to monitor a criminal justice system that is inclined to release the perpetrator with a slap on the wrist? And do you realize that in this horrible event, without the protections of Measure 11, Measure 40, and Senate Bill 936, you will have no ammunition in your fight for justice?