Oregon lawsuit decries Democrat governor’s clemency push as unlawful after nearly 1,000 convicts freed

Two Oregon district attorneys and the families of three murder victims have filed a lawsuit against Democratic Gov. Kate Brown over her approach to granting clemency – arguing that it’s against the law.

They claim she’s freed almost 1,000 people without properly notifying the victims or their families in advance.

The prosecutors, Lane County’s Patricia Perlow and Linn County’s Doug Marteeny, are also asking the judge to stifle Brown's policy on commutations for people convicted of crimes as minors.

"We are asking that the court compel the governor to follow the laws that are already in place," Monique DeSpain, a lawyer for Perlow, Marteeny and the homicide victims’ relatives, told The Associated Press last week.

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In November, Perlow sent out a statement blasting Brown over a clemency order freeing eight suspects from her district.

"Of those convicted, three were convicted of murder, two of sex crimes against children and three of robberies with weapons, including a stabbing and a failed attempt to shoot a customer in a store," she said at the time.

All were under 18 at the time of their crimes, but some details are heinous.

In 2002, Brian Hardegger was convicted for his role in the murder of his own mother, committed at the age of 17.

"Defendant and his father buried the victim, Hardegger’s mother, alive," Perlow said. "When the victim tried to raise her head above the dirt, Hardegger pushed her head down with his foot so that he and his father could finish covering her up. Hardegger dug the hole beforehand."

Perlow also took issue with another case involving a 17-year-old, Connor Allen, who was convicted of first-degree sex abuse after sodomizing a 7-year-old.

"Victims of crime in Oregon have Constitutional and statutory rights that are being ignored by Gov. Brown, the Oregon Department of Corrections and the State Parole Board with a first priority to these offenders of a ‘meaningful opportunity to be released,’" Perlow said in her statement. "Victims of crime deserve the enforcement of their rights they fought so hard to have recognized."

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Marteeny told the Albany Democrat-Herald, an Oregon newspaper, that Brown’s clemencies amounted to "re-writing sentencing laws."

Brown's office has said it "generally does not comment on matters of pending litigation." Last June, she told state lawmakers that more than 900 people she freed were at risk of contracting COVID-19 while behind bars and were medically vulnerable. Since then, she's commuted dozens more, many of them convicted of serious crimes as juveniles.

The lawsuit was filed just days before the children of Dale Rost III, who was hogtied and murdered in 2005, say they learned that one of their father’s killers had applied for clemency and could receive it soon from the governor.

Lynley Janet Rayburn, 26 at the time, and her then-boyfriend Gerard "AJ" Smith, then 20, went out on the early morning of Dec. 23, 2005 – armed with a rifle and high on meth, according to court documents. Both are serving life prison sentences for robbery and murder for ransacking Rost’s home before shooting him through the eye.

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Brown’s office said Friday that the governor had not yet reached a decision on Rayburn’s application for clemency, filed with assistance from a group of students at the Criminal Justice Reform Clinic at Lewis & Clark Law School in Portland. Brown also attended Lewis & Clark.

The students sent a 100-plus-page letter to the governor describing Rayburn’s troubled childhood and alleged attempts to improve her life behind bars and helped her file an April 2021 application for executive clemency.

The application includes a handwritten note from Rayburn in which she claims she was not present at the time of Rost’s shooting death – something prosecutors say directly contradicts the facts of the case. 

A spokesperson for Brown said the governor "takes every effort" to get input from the victims of crime before granting clemency, however Rost's family said they had never been contacted by the governor’s office before they learned from prosecutors that Rayburn’s case was up for review.

The prosecutor told the victim's family that he'd received notification from the governor's office that Rayburn had applied for clemency, Rost's son-in-law, Justin Olson, said Monday. 

"The DA told the family they could write victim impact statements and send them via email," he said.

But they said they received no response or acknowledgement that the four impact statements they sent in had been received.

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"The Governor deeply values input from any victims involved in the case at issue, and takes every effort to obtain that input in the most victim-centered and trauma-informed way possible," Charles Boyle, a spokesperson for the governor, said Friday. "To that end, in seriously considering any clemency application, the Governor’s Office will reach out to the respective District Attorney’s office to obtain their input and any input from victims––as we have done in this case––well before making any decision to release someone from custody. Our office relies on the DA’s offices to accurately represent information to victims; it is unfortunate that misinformation appears to have been communicated in this case."

The Associated Press and Fox News’ Sarah Rumpf contributed to this report.