Benton Murder Case Reply

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IN THE CIRCUIT COURT FOR THE STATE OF OREGON
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FOR THE COUNTY OF CLACKAMAS

STATE OF OREGON,
Plaintiff,
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v.
JASON JAY JAYNES,
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Defendant.
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Case No. CR1400775
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Case No. CR1201793
DEFENDANTS REPLY IN SUPPORT OF

MOTION TO DISMISS
(MOTION NO. 101)
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STATE OF OREGON,
Plaintiff,
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v.
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JASON JAY JAYNES,

Defendant.
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DEFENDANTS REPLY IN SUPPORT OF

MOTION TO DISMISS
(MOTION NO. 101)
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PAGE 1
DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS

(MOTION NO. 101)
Kevin Sali LLC
5 Centerpointe Drive, Suite 400
Lake Oswego, OR 97035
Telephone (503) 329-3598
Fax (503) 765-5377
I.
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INTRODUCTION
Defense counsels opening memorandum (hereinafter the Memorandum) sets forth
the law concerning governmental conduct that influences the testimony of a potential
defense witness, and explains why the States conduct in this case went far beyond the line
necessary to establish a constitutional violation.
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In its Memorandum in Opposition (hereinafter the Opposition), the State argues

essentially as follows:
Instead of the legal rules set forth in the Memorandum, this Court should use
the rules that apply when the State seeks to use a defendants allegedly
involuntary confession against him, or those applicable to the allegedly
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coerced testimony of a prosecution witness;
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The States treatment of Nick Smith was entirely appropriate, both because
the investigators had powerful reasons to believe that Nick was lying to them,
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and because they at no point exerted any inappropriate influence on him; and
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Finally, even if the initial treatment of Nick by the Canby detectives was
overly aggressive, from that point onward the other investigators treated Nick
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politely, respectfully, and without pressureso much so that any lingering
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effects from the Canby detectives earlier conduct completely disappeared.

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On each one of these points, the State is flatly wrong.
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First, there is no legal basis for the States proposed shift to a different legal
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framework. The present motion is not based on some novel, untested legal theory requiring
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this Court to cast about for the closest legal analog. On the contrary, as outlined in the
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Memorandum, there is a large, well-established body of case law applicable to the precise
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(MOTION NO. 101)
Kevin Sali LLC
Telephone (503) 329-3598
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situation before the Court. That, and not the States proposed alternative, is the legal
framework governing this motion.
Second, the States herculean efforts to find something supporting the conclusion that
Nick was initially lying came up completely empty. Every time Nick was asked a question
by the Canby detectives, he answered promptly, forthrightly, and accurately. As set forth
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below, the States attempted portrayal of Nicks initial answers as evasive or deceptive
appears to be based largely, as it was back in 2011, on a series of facially obvious mistakes
in interpreting Nicks time records.
Third, far from being curative, the post-Canby portion of the Nick Smith
interrogation itself went far beyond what the constitutional boundaries allow. As set forth
below, the second wave of detectives not only failed to retract or withdraw any of the Canby
detectives earlier threats, lies, or accusations, but themselves subjected Nick to a grossly
excessive processincluding sixteen hours of interrogation, over two consecutive days, on
the basic question of whether Mr. Jaynes had ever left the area during his May 28 shift. The
fact that this is presented as the good part of the States investigation shows how truly
excessive the admittedly aggressive part was.
In the end, the States Response does nothing to improve the picture before the
Court. If anything, that picture is now worse. The investigators now-conceded lies to Nick
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Smith, coupled with the additional evidence discussed below, demonstrate that the complete
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story is even more troubling than it initially appeared. And the most disturbing aspect of all
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of this may be CCDAs vigorous endorsement of the tactics used in this casean
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endorsement that will send an unambiguous message to officers working on present and
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future cases in this county.
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PAGE 3

(MOTION NO. 101)
Kevin Sali LLC
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II.
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A.
ANALYSIS
The States Response Largely Ignores the Applicable Legal Standard.
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The State focuses virtually all of its legal argument on the following: (1) the
voluntariness analysis that applies when the State seeks to use a defendants own statements
against him; and (2) the analysis that applies when a defendant alleges that a prosecution
witnesss testimony is the product of governmental coercion.1

But the States extensive discussion of these rules entirely misses the point. As set
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The State Focuses on the Wrong Legal Rules.
forth in the Memorandum, the present motion is based on the States interference with a
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witness who would otherwise have provided testimony favorable to the defense. For
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convenience, this will be referred to herein as a Morrison motion, after one of the leading
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cases on this issue. A Morrison motion is governed by a legal framework entirely different
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from those discussed at length by the State.
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Accordingly, the vast majority of the States legal contentions and characterizations
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are simply irrelevant. The issue before this Court is not, for example, whether, because of
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investigators conduct, Nick Smiths trial testimony will be involuntary, rendering the trial
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so fundamentally unfair as to violate the defendants right to due process.2 Whether or not
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that would the appropriate analysis in a voluntariness or coercion motion, it has no bearing
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on a Morrison motion.
Instead, as set forth in Defendants opening memorandum, and as uniformly
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recognized by appellate courts in Oregon and elsewhere, the key questions relevant to a
Morrison motion are: (1) whether the State treated the witness with strict neutrality; and
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See, e.g., States Mem in Opp to Defs Mot to Dismiss (Opp) at 25-42.
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Opp at 38.
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(MOTION NO. 101)
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(2) if not, whether the States influence had some effect on the content or manner of the
testimony the defendant will be able to present at trial.3

2.
The States Sole Effort to Distinguish the Governing Case Law Is

Entirely Without Legal or Logical Support.
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With respect to the legal framework that does apply to Morrison motions, the State
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makes only one attempt to distinguish this case from the broad body of case law cited in the
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Memorandum. According to the State, that case law applies only to improper influence that
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occurs during, or immediately preceding, trial,4 and does not extend to police interviews
and interrogations of witnesses conducted years earlier.5
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This argument is entirely without legal support. The State cites no case from the
correct line of authority that even implicitly supports its proposed distinction, and in fact the
applicable case law directly contradicts the States position.
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In United States v. Heller,6 for example, the improper influence by law enforcement
agents took place several years before the defendant was even indicted, much less brought to
trial.7 The Eleventh Circuit had little difficulty unanimously reversing the defendants
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See Mem at 30-42. The separate issues referenced by the State are not presently before
this Court because Mr. Jayness motion is based on a legally distinct theory and seeks relief
that is in multiple ways distinct from that typically sought in motions brought under the
theories discussed in the Opposition. Should the present motion be denied in part or in full,
Mr. Jaynes reserves the right to file a separate motion on that independent basis at a later
date.
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Opp at 32.
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Opp at 34.
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830 F2d 150 (11th Cir 1987).
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See id. at 153 (describing the interactions in July of 1979). The case was indicted in 1982,
as indicated by the district court case number, No. 82-00327-CR-DAVIS, and by media
accounts. See, e.g., Robert D. Hershey Jr., A $500,000 Apology From the I.R.S., N.Y.
Times, Feb. 9, 1994, available at http://www.nytimes.com/1994/02/09/business/a-500000apology-from-the-irs.html.
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(MOTION NO. 101)
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conviction on Morrison grounds, and did not even consider the time lapse worthy of
mention.
Indeed, when the appellate court issued its opinion on September 29, 1987more
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than eight years after the improper influence at issueit noted that even as of that time,
[t]he conditions under which [the defendant] may be retried, i.e., the steps necessary to
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alleviate the effects of the governments misconduct, is a difficult problem which will have
to be addressed on remand.8 As noted in Mr. Jayness opening memorandum, this
difficult problem appears to have proven insurmountable, as the government ultimately
acknowledged that it could not proceed on remand and dismissed the case.9
The States attempted creation of a de facto statute of limitations for improper
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influence claims finds no more support in logic than it does in the case law. As set forth in
the Memorandum, a criminal defendant is guaranteed the opportunity, at least on a par with
that of the prosecution,10 to present [his] version of the facts as well as the prosecutions to
the jury so it may decide where the truth lies.11
This has consistently been held to include the freedom from any improper
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governmental influence that could affect the content, tone, or persuasiveness of the witnesss
testimony.12 In other words, when a defendant has a witness available to testify in his favor,
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Heller, 830 F2d at 154 n 6.
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See Mem at 54.
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United States v. Morrison, 535 F2d 223, 226 (3d Cir 1976) (quoting Western, The
Compulsory Process Clause, 73 Mich L Rev 71 (1974)).
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Washington v. Texas, 388 US 14, 19 (1967).
See, e.g., State v. Huffman, 65 Or App 594, 602 (1983) (describing the standard as being
whether there is some effect on the witness [sic] testimony, at least when government
conduct alleged to have interfered with the defendants ability freely to present witnesses in
his favor is not outrageous); State v. Pena, 175 NW2d 767, 768 (Mich 1970) (in reversing
conviction based on governmental influence on potential defense witnesses, noting that
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(MOTION NO. 101)
Kevin Sali LLC
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that defendant has the constitutionally guaranteed right to the full persuasive value of that
witnesss testimonywhatever that may be for any particular witnesswith the States
lawful response being limited to the traditional tools of cross-examination and the
presentation of contradictory evidence.13

For the States present position to be correct, it would have to be the case that after
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some passage of time following improper influence, the effect of that influence necessarily
dissipates to the point that the content, tone and persuasiveness of the witnesss testimony
are restored to where they were originally.
There may be situations in which the passage of time, along with other
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circumstances, sufficiently purges the taint of improper governmental influence. If so, this
would be a highly fact-specific inquiry, and would depend on what happened in the
intervening time. Even in the coercion/involuntariness line of cases relied upon by the
Statewhich, again, do not govern this Morrison motioncourts, contrary to the States
suggestion, have not held that the passage of time per se removes the taint of any improper
government conduct. Instead, the focus is on the passage of time between [the improper
conduct] and [the witnesss] trial testimony, and whether intervening circumstances
sufficiently insulated his testimony from the effect of the prior coercion.14
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[t]he manner of testifying is often more persuasive than the testimony itself); United
States v. Thomas, 488 F2d 334, 336 (6th Cir 1973) (noting the obvious and considerable
difference between the free and open testimony anticipated of a voluntary witness and the
perhaps guarded testimony of a reluctant witness who is willing to appear only at the
command of the court).
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See, e.g., Pena, 175 NW2d at 768 (A prosecutor may impeach a witness in court but he
may not intimidate himin or out of court.).
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Williams v. Woodford, 384 F3d 567, 595 (9th Cir 2002) (emphasis added).
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(MOTION NO. 101)
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In the legally distinct Morrison context, the possibility of a purported cure may or
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may not be a basis to defeat a defendants motion. Courts in that line of cases have been
reluctant to find that prosecutors or trial courts curative measures were sufficient, possibly
because of a recognition that a quite different dynamic exists in this context.15 Regardless,
even assuming that curative efforts or circumstances may sometimes suffice to defeat a
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Morrison motion, nothing of the sort took place here, and in fact what did happen made the
situation even worseas set forth in detail infra at Part II.B.8.
B.
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The Factual Picture Is Now Even Worse Than It Initially Appeared.

The State Concedes that the Canby Detectives Repeatedly Lied to Nick
Smith.
At the outset, it is worth noting a pertinent fact that has always been suspected but is
now conceded. As the transcripts submitted with Mr. Jayness motion demonstrate, in their
second interview of Nick Smith the Canby detectives told Nick not only that Mr. Jaynes was
in custody but also that he was directly contradicting Nicks account, and used this as part of
their tactic to pressure Nick into confirming their theory:
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MEAD:
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Heres the thing. Hes in custody, he has not

been let loose, hes singin like a bird and hes
telling us youre leaving stuff out. Now heres
the difference, you better start telling the truth
or youre gonna get wrapped up in this where if
youre just a witness and you just saw a couple
of things, I want to know what those are. I
dont want any more crap or lies.16
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See, e.g., United States v. Thomas, 488 F2d 334 (6th Cir 1973) (reversing despite curative
efforts including a governmental assurance that the witness at issue would not be
prosecuted, and the witnesss expressed willingness to testify pursuant to a subpoena).
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Aff of Kevin Sali in Supp of Defs Mot to Dismiss (Sali Aff), Ex 1 at 25.
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(MOTION NO. 101)
Kevin Sali LLC
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The in custody part of this statement was, of course, false. As to Mr. Jayness
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supposedly contradicting Nicks account and telling the detectives Nick was leaving stuff
outthis has always seemed suspicious, as these alleged statements appeared nowhere in
the reports or transcripts of the interrogations of Mr. Jaynes. The State now concedes that
these too were lies.17

Because of these lies and the other tactics used, after the Canby detectives had
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finished with Nick he was under the following impressions:
That the detectives investigating this murder case clearly believed he was
lying;
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That he risked becoming wrapped up in thisthat is, entangled as not a

witness, but (in the States own words) implicated in a murder18if he
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continued saying Mr. Jaynes had never left during his May 28 shift; and
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That Mr. Jaynes had been arrested for the murder and was giving
investigators information that contradicted Nicks account.
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2.
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The Supposedly Good Portion of the Nick Smith Interrogation Was

Not, in Fact, Very Good.
In its Opposition, the State admits that the Canby detectives tactics were overly
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aggressive,19 but holds up the subsequent interrogations by Detectives Sudaisar, Edwards
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and Miller as having been nice, polite and respectful, and otherwise entirely proper.20 In
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fact, the States position appears to be not only that these latter detectives approach was
appropriate, but that their combination of time, peace, patience, a distraction-free
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See Opp at 19.
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Id. at 30.
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Id. at 48.
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Id. at 43-44, 48.
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(MOTION NO. 101)
Kevin Sali LLC
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environment and respect21 was sufficient to extinguish any lingering effects from the earlier
phase so that Nick felt entirely free to give whatever account he believed to be true.
Does the States characterization match the evidence?
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As of June 6, 2011, Detective Sudaisar and Others Were Already

Working with the Canby Detectives in a Closely Coordinated
Investigation of Mr. Jayness May 28 Whereabouts.
To begin with, its simply inaccurate to attempt to distance the supposedly good
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set of detectives from the efforts of the admittedly aggressive Canby interrogators. In
fact, the various detectives involved in this case were working together in a closely
coordinated investigation of Mr. Jayness May 28 whereabouts.

On June 6, Mead and Scharmotas first discussion with Nick Smith was from 6:10 to
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6:36 pm.22 At this very time, Detective Sudaisar was in the midst of interrogating Mr.
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Jaynes. When Mr. Jaynes repeatedly told Sudaisar he was at work on May 28, 2011,
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Sudaisar shut him down, telling him to forget about the alibi.23
This statement was made at approximately 6:37 pm. At this time, Sudaisar had no
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evidence whatsoever contradicting what Mr. Jaynes was telling him about his work
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schedule. Indeed, at this precise time his colleagues were gathering evidence fully
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supporting what Mr. Jaynes was saying. This included Chevron records showing Mr.
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Jayness shift that day, and Nick (so far) confirming that Mr. Jaynes had been at work and
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had not left during his shift.
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Id. at 44.
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See Sali Aff, Ex 1 at 1, 22.
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This June 6 interrogation of Mr. Jaynes is memorialized in a recording. With respect to

all references in this Reply to that interrogation, at the hearing defense counsel will either
play the recording or ask the respective witnesses to confirm the pertinent statements.
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(MOTION NO. 101)
Kevin Sali LLC
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The detectives appear to have been giving each other detailed updates and
coordinating their efforts. For example, Detective Sudaisar was joined by Lake Oswego
Detective Lee Ferguson for the June 6 interrogation of Mr. Jaynes, which lasted from 4:15
pm to approximately 8 pm. The recording of that interview depicts Ferguson taking a phone
call at approximately 7:03 pmabout half an hour after the first Nick Smith session had
ended. During that call Ferguson makes the following statements:

Right. Yeah, whatyeah. What he told uswhat he told us so
far was that he only got one ten-minute break that day, and he
went to McDonalds and had a chicken sandwich on his tenminute break, didnt take a lunch break, nothing. They dont
give them lunch breaks, or that he didnt take one that day.
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And so, thats what he told us, but hes beginningwere

beginning to pick up the pace a little bit here. And hesyeah,
hes hopefully getting to where hes to that point.
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(Pause)
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Okay. That was thatis that that Nick guy, or whatever his
name is?
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(Pause)
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Right. Okay.
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(Pause)
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Right, okay. All right.
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And sobutso I mean, its interesting that he said the same

thing that he did, because he said ten-minute break at
McDonalds. I mean thatsyeah, so
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No, thats wonderful information. Okay. Thanks, Sir.
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(MOTION NO. 101)
Kevin Sali LLC
Telephone (503) 329-3598
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In short, there is no evidence that the Canby detectives were somehow going rogue
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in a separate investigation unknown to and unmonitored by the other detectives. This was a
closely coordinated effort from the outset, and everyoneincluding the good detectives
appears to have known exactly what was going on at all material times.
b.
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During the Good Part of the Investigation, the Detectives Do

Nothing to Alter the Impressions Created by the Canby
Detectives, Then Interrogate Nick Smith for 16 Hours Over Two
Consecutive Days.
When the second set of interrogations began on June 9, none of these three
investigators ever made any effort to retract or undo the Canby detectives threats,
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accusations or lies. Accordingly, throughout the entire series of interrogations Nick never
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had any reason to reconsider any impressions created by the Canby detectives regarding the
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States view of his account or the consequences that could flow from sticking to that
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account.
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And these later interrogations were themselves far beyond the legal boundaries
described in Mr. Jayness opening memorandum.
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The day on which Nick Smith finally changed his account and told the detectives
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that Jason had left during his May 28 shift was June 9, 2011. On that day, Detectives
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Sudaisar and Edwards picked him up at a Portland location at 1:37 pm.24 They took him to
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the Portland Police Bureau Central Precinct, interviewing him during the ride.25 They
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arrived at PPB, where Detective Miller began an unrecorded pre-polygraph interview
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sometime between 3 and 4 pm.26 This interview apparently lasted several hours, and was
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See Sali Aff, Ex 1 at 102.
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See id. at 41-74.
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Id. at 76, 103.
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(MOTION NO. 101)
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followed by the highly questionable polygraph examination described in the Memorandum
(more about that infra). Then another unrecorded interview lasting several more hours, until
10:38 pm, with the detectives then dropping him off at home around 11 pm.27
That means that the detectives June 9 interrogations of Nick Smith, which
culminated in the changed account that is the subject of this motion, lasted more than nine
hours.
Nine hours.
And they still werent done. They brought him back for a follow-up the next day,
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this time spending at least seven more hours with him.28 Thats sixteen hours of
interrogation over two days.
Nick wasnt being asked to dredge up long-suppressed memories from some time in
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his past, or to re-create from memory a complex series of murky, nuanced events. He was
being asked whether his sole co-worker had recently left work for about an hour during a
shift with no explanation, leaving him to man the station by himself. Theres a
straightforward answer to that question, and Nick gave itrepeatedly.
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c.
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The Governing Law Did Not Permit the Detectives to Do What

They DidEven If They Thought Nick Was Lying.
Of course, the good detectives clearly thought Nick was lying. Did that give them
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license to keep asking, and asking, and askingfor nine hours the first day, then another
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seven the next?
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Id. at 109.
See id. at 113 (report stating that Edwards and Sudaisar picked Nick up at about 1:00
pm); id. at 99 (report stating that Detective Millers contact with SMITH ended at
approximately 2015 hours).
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(MOTION NO. 101)
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Under the law, no. As set forth in the Memorandum, the Oregon and United States
Constitutions require strict neutrality in the questioning of witnesses such as Nick Smith,
and government agents may not communicate to such a witness that one account is
preferable to another. And of course, thats what happened here. There can be no question
that the waves of investigators, both individually and collectively, made it absolutely clear to
Nick that he was expected to agree that Mr. Jaynes had left during his shift.
If from the outset the investigators had really wanted Nicks own answer to this
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question, they could have asked him. After getting his response, they could have confirmed
how certain he was. If they had a substantial basis to believe he was lyingwhich, as
discussed infra, they did notthey could possibly have added a modest exhortation to be
truthful.29 But thats it. At that point, if the State didnt like the account he was giving or
the testimony they anticipated from him at trial, their lawful remedies were limited to crossexamination and the presentation of contradictory evidence.
Of course, they went further. There can be no serious dispute that as the
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interrogation stretched well into night of June 9, 2011, the investigators were not in any
sense seeking information from Nick, but instead were seeking to get him to confirm an
account that they clearly preferred.
Again, this Court need not decide where in these sixteen hours the Morrison line was
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crossed. That line had been crossed back on June 6 during the interviews with the Canby
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detectives, and no subsequent events or communications cured the constitutional violations
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that were already established at that point. The June 9 and 10 interrogations, far from curing
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the initial harm as the State suggests, in fact entrenched and added to it.
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See Mem at 35.
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(MOTION NO. 101)
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3.
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The Polygraph Portion of the Story Is Even Worse Than It Initially

Appeared.
As this Court knows, part of the Nick Smith story involves two highly questionable
polygraph examinations, and the States improper use of the purported results of those
examinations to influence Nicks account. Mr. Jayness opening memorandum set out some
of the issues with those polygraph examinations, and with the States bizarre delays and
about-faces in producing the corresponding records.

In its Opposition, the State makes no effort to defend the polygraph exams or the
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detectives improper use of the purported results. This would in itself be sufficient to
remove any doubt regarding the impropriety of that portion of the investigation. And in fact,
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the overall picture is significantly worse than described in the Memorandumas to both the
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examinations themselves and the States delays in coming forward with the associated
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records.
With respect to the examinations themselves, since submitting the initial motion and
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memorandum defense counsel has retained a second expert witnessDr. David Raskin, a
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prominent national expert in polygraphy and related fieldsto review Detective Millers
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work.30 As set forth in his October 29, 2015 affidavit, Dr. Raskin was completely unable to
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find any basis for Detective Millers alleged conclusion that Nick failed his first polygraph
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exam.31
Recall: this was the conclusion that, Detective Miller told Nick, indicated to [her]
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he was not being truthful about JAYNES being at the Chevron gas station during his entire
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The first expert consulted by the defense was former Oregon State Police polygrapher
Steven Hebner, whom the defense also intends to call at the hearing on this motion.
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See Aff of David C. Raskin in Supp of Defs Mot to Dismiss (Mot No. 101) (Raskin
Aff) at 4-6.
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(MOTION NO. 101)
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shift on the night of May 28th.32 As set forth in the Memorandum, after expressing this
purported result to him, she continued to use it to convey to him her belief that he was lying.
She told him she believed he was not being truthful, and did not believe he was still trying
to, piece this together, but rather trying to stall in order to decide what he was going to tell
[her] in regard to failing the test.33 She added that she believed he was doubting himself
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because he was not being truthful about knowing that JAYNES had left the Chevron station
at some point during his shift on the 28th.34 And it was only after this series of statements,
backed by the supposed polygraph results, that Nick finally relented and started telling the
detectives that Mr. Jaynes had in fact disappeared for some length of time during his shift
on the 28th.35
But now two highly qualified polygraph experts have looked at the data that
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Detective Miller (eventually) turned over, and both are completely unable to discern any
basis for her conclusion that Nick was being deceptive. On the contrary, according to Dr.
Raskin the available data indicated a definite truthful outcome on the initial exam with the
critical question of whether Mr. Jaynes had ever left the property during his May 28 shift,
and according to both experts (as will be demonstrated at the hearing) nothing in the
disclosed files shows any basis for Detective Millers supposed contrary result.
And on top of that, the story of the polygraph records is even stranger than defense
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counsel initially realized. The opening memorandum sets forth the convoluted path by
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which Detective Miller finally, after initially claiming that no data files were available,
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32
Sali Aff, Ex 1 at 83.
33
Id. at 84.
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34
Id.
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35
Id.
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produced them to CCDA for disclosure to the defense.36 Upon further review of the record
of this case before the undersigned counsel was appointed, counsel has learned that at first
the States position was that even Detective Millers reports of the Nick Smith polygraphs
were nowhere to be found, with the State locating and producing them only after repeated
requests from co-defendant Lynn Bentons defense team.

The pertinent chronology is as follows:
June 9, 2011: Detective Miller conducts a polygraph examination on Nick

Smith. She repeatedly cites her purported conclusionthat Nicks
responses were consistent with deceptionin telling Nick she believes he
is lying. After this discussion, Nick for the first time changes his previously
10
steadfast account and says that Mr. Jaynes did leave the area during his May
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28 shift.
12
13
October 8, 2013: Having seen passing references to Nick Smiths polygraph

examinations in the discovery, but not having been provided any of Detective
14
Millers reports or other documentation, Bentons counsel writes to the State
15
asking for those materials.37
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36
See Mem at 26-27.
37
Second Aff of Kevin Sali in Supp of Defs Mot to Dismiss (Mot No. 101) (Second Sali
Aff), Ex 1 (Dec. 23, 2015 Request for Discovery SanctionsExclusion of State Witness
Nick Smith, from State of Oregon v. Lynn Edward Benton, Clackamas County Case No.
CR1201792) at 2. The citations herein are to the document filed by the Benton defense
team. The supporting materials cited and/or referenced in that document will be provided to
this Court when available.
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November 8, 2013: A CCDA prosecutor responds in writing that [w]e have
spoken with Detective Carol Miller who did the polygraphs in this
investigation, and everything in her possession has been discovered.38
April 30, 2014: The State reports that Detective Sudaisar has spoken with
Detective Miller, and no other reports/notes etc exist.39
May 7, 2014: CCDA finally discloses that, in fact, there exist two reports by
Detective Miller documenting the Nick Smith polygraphs.40 These are
produced to the defense the next day.
July 8, 2015: Mr. Jayness counsel asks CCDA for the underlying data from
the Nick Smith polygraph examinations. Having received no response,
10
counsel repeats this request three weeks later.41
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12
August 4, 2015: CCDA reports that [a]ccording to Detective Miller, [her

narrative] reports [we]re the only documents she ha[d] retained regarding this
13
case.42 Defense counsel immediately responds, asking CCDA for the
14
detailed information underlying its stated position.43
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16
September 16, 2015: CCDA reports that Detective Miller did in fact retain
the underlying files.44 CCDA produces these to defense counsel, who
17
promptly provides them to two independent polygraph experts. Both experts

18
19
38
Id. at 2.
20
39
Id. at 3.
40
Id.
41
Sali Aff, Exs 3-4.
42
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43
Id. at 1.
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44
Sali Aff, Ex 1 at 146-47.
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are unable to find any basis for Detective Millers purported conclusion that
Nick failed his exams.
What is going on here? Has this Court ever seen a stranger sequence of events
involving what would ordinarily be the routine production of a standard set of highly
relevant materials? A set that every police officer in the state would know beyond any doubt
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must be maintained and preserved?

Is it possible that Detective Miller, and/or someone else on the States side, realized
that there were problems with the Nick Smith polygraphs and the investigators use of them?
As bizarre as that might seem, is there a more convincing explanation for the laborious,
tortuous route through which these clearly pertinent documents finally came to the surface
particularly given the fact that once they emerged, they cast a serious cloud over this portion
of the investigation? If this isnt enough to raise an inference that something was amiss,
what would be?
Its worth considering how this story might look if the subject was a civilian under
investigation for, for example, environmental violations or white-collar offenses. Imagine
that investigators ask the subject to produce a set of records required by law to be
maintained, and the subject responds that they dont exist. After being repeatedly pressed,
the subject admits that, okay, the documents do exist, and produces them. Hes asked for
18
the underlying data that went into themdata that is also required by law to be kept. He
19
initially says that data is gonethen, again only after being repeatedly pressed, produces
20
that data as well. The investigators present that data to government expertslaboratory
21
analysts, for example, or forensic accountantswho are completely unable to recreate the
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subjects supposed conclusions, or to discern how he could possibly have thought that the
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data supported those conclusions. What would a prosecuting entity such as CCDA do with
that story? How would a court view it?

However intriguing such questions may be, their resolutions are not ultimately
3
4
necessary to the determination of this motion. As set forth in the Memorandum, the
polygraph portion of the story is not essential to this Morrison motion. The constitutional
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8
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10
line was crossed long before Nick Smith ever met Detective Miller, and the violations were
never cured. Moreover, to the extent the Court considers the polygraph portion of the story,
defense counsel need not prove that any of the detectives actually knew that the purported
polygraph result was unreliable or that their use of it to influence Nick was improper. Even
merely negligent government conduct can support a Morrison motion.45
Still, it is at least safe to say that no part of the polygraph story inspires any
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12
13
14
15
confidence in the tactics leading to the change in Nick Smiths account, and that story
provides ample reason to question whether something more than mere negligence was
implicated. This Court may properly take this into account in assessing the overall
evidentiary picture.
4.
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There Was Never Any Substantial Basis to Believe That Nick Smith
Was Lying.
As set forth in the Memorandum, one question in the Morrison analysis is whether
the investigators had a substantial basis for concluding that a witness was lying.46
Substantial is interpreted strictly in this context, requiring something akin to a direct
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21
45
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24
See State v. Mays, 269 Or App 599, 619 n 13 (2015) (noting the Ninth Circuits holding
that in this context a violation may be based on the suggestion, procurement, or negligence
of the government (quoting United States v. Bohn, 622 F3d 1129 (9th Cir 2010)), but
leaving this question open).
46
See Mem at 35.
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conflict between the witnesss proposed testimony and [his] own prior testimony;47 it is not
enough that, for example, one witnesss account differs from anothers.48 Additionally,
even a substantial basis to conclude that a witness is lying allows at most a modestly
enhanced warning, and investigators must still avoid improperly influencing the witnesss
account.49
A significant portion of the States Opposition consists of a determined effort to
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7
8
prove why the investigators had a legitimate basis for believing that Nick Smith was initially
lying. This effort falls completely flat.
a.
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The State devotes much of its Opposition to laying out the evidence it had gathered
prior to and during the series of Nick Smith interrogations. Most of this evidence relates to
Susan Campbell and (to a lesser degree) Lynn Benton. For purposes of this motion, defense
counsel does not dispute that as of June 6-10, 2011, the State (obviously) had good reason to
believe that Ms. Campbell was guilty. Also for purposes of this motion, defense counsel
does not dispute that available evidence gave the State reason to suspect Lynn Bentons
involvement.
17
18
The Other Evidence Developed in the Case Did Not Establish

That Mr. Jaynes Was Physically Absent from Work.
As to Mr. Jaynes, the evidence relied upon by the State is more equivocal. The State
describes evidence allegedly indicating that Mr. Jaynes knew in advance about a plot,
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47
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21
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24
United States v. Vavages, 151 F3d 1185, 1190 (9th Cir 1998).
48
See id. (That [the witnesss] testimony would have contradicted the testimony of the
government's own witnesses does not form a sufficient basis for the prosecutor's warning.).
49
See, e.g., State v. Gutierrez, 333 P3d 247, 248-51, 255-56 (NM 2014) (criticizing
officials conduct in pressuring witness even though that witnesss account differed starkly
from her prior grand jury testimony); Berg v. Morris, 483 F Supp 179 (ED Cal 1980)
(finding due process violation based on improper influence even though witness was
testifying directly contrary to prior in-court testimony).
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involving his mother and Benton, to murder Ms. Higbee;50 that, according to Ms. Campbell,
Mr. Jaynes had helped her obtain the gun used in the murder (this was later contradicted by
a separate witness, although in fairness that evidence does not appear to have been known to
the State at the time);51 that he behaved suspiciously after the time of the murder, including
possible efforts to hide evidence; that he lied to investigators in multiple respects; and that
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7
he knew significantly more about Ms. Higbees death and his mothers involvement in it
than he was letting on.
But even accepting all of that as true, and even assuming for purposes of this motion
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12
that the evidence available to the State was sufficient to create serious suspicion that Mr.
Jaynes had some connection to the murder (or to subsequent efforts to evade detection), it in
no way established that Mr. Jaynes was the actual killer physically present at the crime
scene.
And it was that issueMr. Jayness potential presence at the scene at the time of the
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14
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16
17
murder, which by necessity meant his absence from work at that same timethat brought
Nick Smith into this case. Investigators suspected, albeit without any particularly
compelling evidence, that a second person had assisted Ms. Campbell with the murder and
that Mr. Jaynes was that person. Having learned that Mr. Jaynes was at work that day, the
obvious step was to find out if he ever left during any time corresponding to the murder.
18
They asked Nick, Mr. Jayness sole co-worker, who said he hadnt. No evidence gathered
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50
The States discussion of this issue includes references to a text message sent by Mr.
Jaynes to his fiance Heather Smith. This text message has been described, quoted and
characterized in several different ways by several different people throughout the course of
this case. For the record, according to the discovery the text was sent on April 26, 2011, and
read: I could make 5 grand but i would have to off someone.
51
According to the discovery, Ms. Campbell later indicated that she had in fact obtained that
weapon through a man named John Ragsdale, who on February 17, 2012 confirmed this.
See Second Sali Aff, Ex 2 at 1-6.
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by the State up to that point provided any substantial basis to believe that Nick was
lying.52
3
b.
4
5
Nick Smiths Supposedly Deceptive Behavior Was Nothing of

the Sort.
Nor did any such substantial basis emerge during the initial contacts with Nick.
The State strives mightily to characterize Nicks initial responses to the Canby detectives as
showing deception and evasiveness. This characterization is ludicrous.
The first part of Nicks alleged deception, according to the State, was his supposed
evasiveness in answering questions about his work history with Mr. Jaynes. According to
10
the State, Nick first fails to mention Mr. Jaynes when asked who he has worked with, then
11
attempts to minimize the number of shifts they have shared.53 Back in 2011, the Canby
12
detectives seized on these points to suggest to Nick that he was being deceptive; now, more
13
than four years later, the State persists in this claim. Does it have any merit?
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15
Contrary to the description in the States Opposition, the actual question that
Detective Mead asked Nick at the outset of the interview was: who did you work with
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52
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It is worth noting that, to the extent that the States evidence circa June 2011 was derived
from Susan Campbell, the State by that time was already on notice regarding issues with her
reliability. The full scope of the problems with Ms. Campbell and her testimony may not
yet have been known. Still, the State had the clear evidence of her own participation in the
murder, hours of rambling statements from her, and a June 2, 2011, letter from her attorney
telling the State that she had substantial medical and psychiatric issues. See Second Sali
Aff, Ex 2 at 7-8. Accordingly, even if Ms. Campbell had provided direct evidence contrary
to Nick Smiths account (which she had not), and even if the contrary account of another
witness could constitute a substantial basis for Morrison purposes (which it does not),
evidence derived solely from Ms. Campbell would have to be viewed with enhanced
scrutiny.
53
See Opp at 14.
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most of the time on your shift?54 At that time, Nick had worked at the station for about nine
months,55 and based on Chevron records appears to have shared a total of three shifts with
Mr. Jaynes.56 Accordingly, when asked whom he had worked with most of the time, he
did not include Mr. Jaynes. Given that this omission was substantively, mathematically, and
in every other conceivable way absolutely accurate, it was hardly a legitimate basis for
suspicion.
To the extent that the detectives genuinely considered Nicks answers suspicious, it
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8
9
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was apparently the result of their own erroneous reading of the Chevron documents. This is
clear from Scharmotas subsequent statement, later in the interview, that looking at [Mr.
Jayness] schedule youve been working with him every Friday, Saturday and Sunday night
for the last 3 weeks, which concerns [him] a little bit because [i]ts like you were trying
to hold something back here.57 The States Opposition cites this as additional evidence of
evasiveness and deception, noting that Smith acts surprised at this fact.58
If in fact Nick was surprised, there was a good reason. Scharmota was simply
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15
16
wrong. As noted above, based on Chevron records Nick and Mr. Jaynes appear to have
shared three shifts as of the time of that interview.
If this seems like an excessive amount of time spent discussing work schedules at the
17
Gladstone Chevron in 2011, counsel apologizes. That said, the State has seized upon Nicks
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19
54
Sali Aff, Ex 1 at 1 (emphasis added).
20
55
See id.
56
21
22
According to Chevron records, Nick and Mr. Jaynes worked the p.m. shift together on
May 27, 28, and 29, 2011. On two other occasions their shifts briefly overlappedonce for
about a half-hour during Mr. Jayness training shift on May 10, and then for about fifteen
minutes on May 22. See Sali Aff, Ex 1 129-138; Second Sali Aff, Ex 2 at 9-12.
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57
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58
Opp at 17.
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alleged incompleteness in answering scheduling-related questions as supporting the Canby
detectives belief that Nick was being deceptive. This Court need not rule on the highly
debatable point of whether actually inaccurate answers to such questions might constitute a
substantial basis for suspecting deception, because Nick answered every question entirely
accurately. Indeed, far from being a basis to suspect deception, these completely unfounded
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7
accusations of deception may well have added to the overall impropriety of these detectives
conduct.
Remarkably, this appears to be the best the State can do in its effort to paint Nick as
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14
having initially been deceptive and evasive. Its remaining stabs at this issue are even less
convincing. For example, the States Response emphasizes that only in the second interview
did Nick tell[] the detectives that [Mr. Jaynes] ha[d] admitted to smoking pot.59 Although
this information is hardly earth-shattering and was not remotely responsive to any question
the detectives had asked, the State now somberly notes that this is information Smith has
not before disclosed because, It didnt seem relevant at the time.60
In short, neither Nick Smiths answers to the detectives questions nor anything else
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in the course of the investigation gave the State a substantial basis to believe that Nick
was lying. Counsel respectfully asks this Court so to find after the hearing on this motion.
5.
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The States Purported Explanations for Why Nick Smith Supposedly

Lied in His Initial Interrogations Make No Sense.
Late in the evening of June 9, 2011, well into a nine-hour, virtually unbroken string
of interrogations, Nickafter having finally given up and agreeing that Mr. Jaynes had left
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59
Opp at 19.
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60
Id.
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during his shiftwas then asked why he initially told the Canby detectives Mr. Jaynes
hadnt left.
Relying on various citations from the detectives reports of these unrecorded
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4
discussions, the State advances two, at least partially inconsistent, explanations for Nicks
initial account. One is that Nick simply want[ed] to make sure he ha[d] all of the facts
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straight before telling the investigators what he kn[ew] because he d[id] not want to make a
mistake and give false information;61 in other words, he was sorting out what exactly
happened that night,62 and ha[d] to put all the puzzle pieces together to see the whole
picture before he w[ould] tell somebody what he s[aw] and that is why he did not offer these
details until now.63 The other is that Nick did not like Det. Meads aggressiveness and
intentionally provided false information to him as a result.64
But this makes no sense. The first critical question and answer shows up ten pages
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into the transcript of the first interview on June 6:

MEAD: So 100% he did not leave Saturday.
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SMITH: He did not leave during his shift at all.65
15
Thats not evidence of a mind sorting out what exactly happened that night, and
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its not the answer of someone trying to put all the puzzle pieces together. Its a clear,
straightforward answer to a clear, straightforward question.
18
And as of this point, the Canby detectives had done nothing remotely aggressive
19
with Nick. On the contrary, as the State itself emphasizes, so far they were treating him
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61
Id. at 45.
62
Id. at 25.
63
Id. at 27-28.
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64
Id. at 43; see also id. at 27-31 (setting forth this theory).
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kindly.66 It was only after Nick repeatedly stated that Jason had been at work all day that
the detectives became aggressiveincreasingly so. (Indeed, that is in large part the basis
for the present motionthe State violated its duty of strict neutrality by dramatically
changing its approach to this witness who was not supporting its case theory.)
Accordingly, neither of the States two theoriesthat Nick was withholding
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information while he tried to piece the story together in his head, or that he was lying to the
Canby detectives as a reaction to their aggressivenessstands up to even minimal scrutiny.
Nor, of course, does anything in the States Opposition explain Nicks steadfast repetitions
of his original account to the good detectives on June 9, or what the State itself admits was
his positively enthusiastic attitude towards the initial polygraph examination at a time when
he was still maintaining his original account:
As for the polygraph examination he was about to take, was he
intimidated? Frightened? Anxious? No. Smith tells the
detectives, Im excited to do it because Ive never done it. I
like new things. In fact, he is surprised the other officers
didnt just ask him to do a polygraph test right after their
meeting.67
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Admittedly, the State cites Nick himself as the source of its two theories, claiming
17
that he offered both to the detectives somewhere during the unrecorded evening portion of
18
the series of interrogations. Assuming that Nick made the statements attributed to him, any
19
fault lies not with him but with his interrogators. After finally agreeing with the account the
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detectives clearly wanted him to give, Nick obviously needed some explanation for why he
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had stuck so steadfastly and for so long with the polar opposite story. These explanations,
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66
Opp at 14.
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67
Id. at 23.
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despite their obvious flaws, may have seemed as good as anyparticularly if assisted by
suggestions offered by the detectives during this marathon unrecorded session.
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6.
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5
In Any Event, the Question Is Not Which Time Nick Was Telling the
Truth, But Whether the State Treated Him with Strict Neutrality.
As set forth above, the States effort to recast this sordid story is meritless. The
evidenceparticularly in light of Nicks recently signed statement (discussed infra), and the
lack of any credible basis at any point to believe he was lyingcompels the conclusion that
he was trying to tell the truth initially, and only changed his account in response to the
influence exerted on him in various forms during his numerous rounds of interrogation.
10
But even if this Court were to conclude otherwisefor example, that Nicks initial
11
statements were false and his later ones true, or that the evidence does not resolve the issue
12
either waythat would not affect the ultimate constitutional analysis. The constitutional
13
rule is directed at all governmental efforts to influence a witnesss account, regardless of
14
which version of the witnesss account the court ultimately believes to have been true
15
because it is the jurys functionnot the prosecutors [or detectives]to determine the
16
credibility of witnesses.68 That rule provides that, if the State finds a particular witnesss
17
account suspicious or unhelpful, like any other litigant its remedies are limited to
18
impeachment and the presentation of countering evidence.69 When it goes further and
19
attempts to reshape the witnesss accountwhether to what it genuinely believes to be true,
20
or to something more helpful to its casethe line is crossed.
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68
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State v. Wiegers, 373 NW2d 1, 11 (SD 1985).
69
See, e.g., Pena, 175 NW2d at 768 (A prosecutor may impeach a witness in court but he
may not intimidate himin or out of court.).
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What if, instead of a live human witness, Mr. Jayness alibi evidence had been a
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2
surveillance video from Chevron showing him at work throughout his shift? Would it have
been appropriate for the State to destroy that video, or to edit Mr. Jaynes out of it?
According to the State, at least since June 6, 2011, it has been clear that Mr. Jaynes
murdered Debbie Higbee. So he obviously couldnt have been at the Chevron station during
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the time of the murder, and any evidence suggesting that he was must therefore be
unreliable. After all, video footage can be falsified or tampered with, and that must be what
happened here. And letting that video footage get out could muddy the waters of this
otherwise open-and-shut case. A juror seeing that footage might not agree with the States
characterization of Mr. Jayness April 26 text message, and might even question the
heroic testimony of jailhouse informant Craig Smith.70
Notwithstanding these pragmatic concerns, no one would suggest that it would be
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lawful for the State to alter or destroy that video. Was it any more lawful for the State to
repeatedly threaten, lie to, and accuse Nick Smith, and then interrogate him for sixteen hours
until they finally agreed on an account they could go forward with?
It wasntnot under the constitutional standards. The Oregon Supreme Court has
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17
explicitly recognized that witness accounts, like physical evidence, are susceptible to
contamination through sources such as investigator influence.71 And the consistent theme of
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the Morrison line of cases is that the State has no more license to interfere with witness
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accounts than it does to alter any other type of evidence.
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70
See Opp at 1.
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71
See State v. Lawson, 352 Or 724, 748 (2012).
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7.
1
There Can Be No Dispute That the States Unlawful Conduct Had

Some Effect on the Testimony that the Defense Will Be Able to Present
at Trial.
2
The States Opposition suggests that it is still an open question whether in fact the
3
States conduct has had any effect on Nick Smiths value to Mr. Jaynes as an alibi witness.
4
It is not.
5
First, in its analysis of this part of the legal framework the State yet again misstates
6
the legal standard. Although the State poses the question as whether Nick Smith will be
7
unavailable for trial,72 courts in Oregon and elsewhere have unequivocally held that that is
8
not the proper question. Instead, the relevant question is whether the States improper
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11
conduct had some effect on the testimony the defendant will be able to present at trial.73
As multiple courts have recognized, this includes an analysis of not only the content, but
also the tone and manner, of the witnesss testimony.74
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18
Based on the sequence of events detailed in the Memorandum, there can be no

serious dispute that the States conduct has had a material adverse effect on the evidence Mr.
Jaynes will be able to present at trial. Nick Smith, after the States unlawful tactics,
presented a new account that was not only stripped of all exculpatory value but indeed had
become powerfully incriminating. He gave this account not only to the investigators, but
also, under oath, to two separate grand juriesthus subjecting himself to a nonimmunizable risk of perjury charges should he ever return to his initial account.75 No one
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20
72
Opp at 1.
73
See Mem at 36-38.
74
See supra note 12.
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75
See ORS 136.619(1) (even an immunized witness may nevertheless be prosecuted or
24
subjected to penalty for any perjury, false swearing or contempt).
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can seriously contend that he could simply shake this off and present the untainted,
confident testimony he was clearly prepared to give before the State stepped in.
And lest there remain any doubt, along with this Reply defense counsel is submitting
a report, signed by Nick Smith himself, memorializing his most recent statements to defense
investigator Pamela Rogers. In this statement, Nick confirms, among other things, that
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while being interviewed he wanted to tell the truth and thought he was telling the truth the
entire time.76 He also confirms that he has no idea why he didnt pass his polygraph
examination.77 Notably, this interview took place the same day the State finally produced
the polygraph data, such that at this time Mr. Jayness defense team did not yet know the full
scope of the problems with Detective Millers examinations.
Finallyand importantly, for purposes of this aspect of the Morrison motionNick
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17
stated that he honestly doesnt remember whether Jason ever left the Chevron station, nor
does he recall what he told the officers at the end of the day.78 This stated lack of memory
is entirely consistent with the scientific evidence on how an interrogators conduct can
genuinely affect a witnesss actual memory,79 and demonstrates beyond any remaining
doubt that any testimony Mr. Jaynes might be able to present at his trial will be dramatically
different than what Nick would have offered absent the States improper conduct.
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76
See Aff of Pamela Rogers in Supp of Defs Mot to Dismiss (Mot No. 101), Ex 1 at 2.
77
Id.
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78
Id.
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79
See Sali Aff, Ex 7.
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8.
Nothing in the Intervening Years Has Cured the Taint from the States
Constitutional Violations.
As noted above, the State contends that whatever may have happened back in 2011,
there are no lingering effects from that period and Mr. Jayness right to the full benefit of
Nick Smiths testimony has been fully restored. On this point too, the State is wrong.
Indeed, on the contrary, the States conduct in the months and years following the initial
influence made the situation worse, not better.
After the initial contacts in June of 2011, neither the investigators nor the CCDA
prosecutors took any steps whatsoever to undo the damage caused by those contacts. No
one, for example, acknowledged to Nick that any of his initial treatment was improper and
10
would not be repeated. No one took any steps to assure him that the State only wanted his
11
honest, truthful account regardless of whether it matched the States case theory. And no
12
one ever admitted to Nick that the Canby detectives had been lying to him when, in an
13
attempt to challenge Nicks account, they told him Mr. Jaynes was contradicting his story.
14
To recap, from the summer of 2011 onward, Nick believedcorrectlythat the
15
State, far from exhibiting strict neutrality, was deeply desirous of his saying that Mr.
16
Jaynes had left his shift on May 28, 2011. He clearly understoodwith substantial
17
justificationthat sticking to an account inconsistent with the States theory could cause
18
significant adverse consequences to him. He believedincorrectly, because of the Canby
19
detectives now-admitted liesthat the State had substantial grounds to believe that he was
20
lying because his statements differed materially from Mr. Jayness alleged admissions.
21
Finally, he believedincorrectlythat the detectives had additional grounds to believe he
22
had initially been lying based on what they claimed was a reliable polygraph result.
23
This was the state of things as of November 2012. At that time the State, far from
24
taking any corrective measures, took a step that irrevocably extinguished the possibility of
PAGE 32

(MOTION NO. 101)
Kevin Sali LLC
Telephone (503) 329-3598
Fax (503) 765-5377
any cure. That was when a CCDA prosecutor, by then surely aware of the myriad problems
with the way Nicks account had developed, first put him before a grand jury to give the
revised account.80 This process was repeated in May of 2014again, based on all available
evidence, without any intervening curative efforts by the State. From the day of his first
grand jury appearance onward, Nick was exposed to the very real possibility of perjury
6
7
charges should he ever revert to his original, untainted account or otherwise deviate from the
story developed through the course of his lengthy, mostly unrecorded interrogations.
When did the taint disappear? At what point in time did Nick Smiththreatened,
8
9
10
11
12
13
lied to, alternatively accused and cajoled over 16 hours of interrogation, falsely told that he
had failed multiple polygraph exams, and then finally locked in twice under oath before a
grand juryrevert to his pre-influence condition? What was the date after which it can be
assumed that the content, tone, and persuasiveness of his critical exculpatory testimony will
be what it would have been absent the States improper conduct?
These are not rhetorical questions. Defense counsel respectfully submits that the
14
15
16
17
evidentiary record before the Court clearly establishes that the effect of the States improper
conduct has not been, and cannot be, cured. Should the Court conclude otherwise, counsel
respectfully requests a finding from this Court identifying the date after which the States
conduct regarding Nick Smith no longer had some effect on the exculpatory evidence Mr.
18
Jaynes will be able to present at trial.
19
20
21
22
23
24
80
Nick Smiths grand jury testimony has not been disclosed; however, he is listed as a
witness on both of Mr. Jayness indictments, and it is reasonable to assume that he was not
brought before the grand jury to testify that Mr. Jaynes never left work on May 28, 2011.
PAGE 33

(MOTION NO. 101)
Kevin Sali LLC
Telephone (503) 329-3598
Fax (503) 765-5377
III.
CONCLUSION
Bullshit. Dont. Forget about the alibi.
Detective Scott Sudaisar, to Jason Jaynes, June 6, 2011.
Now, lets talk about Nick Smith. Nick Smith initially was uncooperative. Orand from
the police perspective, uncooperative.
5
CCDA prosecutor, in court, April 1, 2015.81
These two quotes succinctly sum up the States attitude towards Jason Jayness
7
8
crucial alibi witness. By June 6, 2011, little more than a week into its investigation, the
State had decided that Jason Jaynes had murdered Debbie Higbee. Nick Smiths insistent
10
account that Mr. Jaynes was at work at the time was not only brushed aside, but actively
11
broken down and reshaped to conform to the States theory. As far as the State was
12
concerned, Nickwho submitted to one interrogation after another, for a total of more than
13
sixteen hours over three separate dayswas nonetheless uncooperative until he finally
14
gave in and agreed with his interrogators view of what had taken place.
The States insistence in holding fast to its initial theory in the face of contrary
15
16
evidence was striking. That said, by itself that insistence may not have crossed
17
constitutional lines as long as the full evidentiary mosaic remained uncorrupted and Mr.
18
Jaynes was able to exercise his vital right to present this powerfully exculpatory evidence at
19
trial.
But, as the record already makes clear and as the evidence presented at the hearing
20
21
will make still more so, the State did not stop there. Instead, State agents repeatedly exerted
22
their influence to get Nick Smith to change his account, and in the end they succeeded. In
23
doing so, they violated the Oregon and United States Constitutions.
24
81
PAGE 34

(MOTION NO. 101)
Kevin Sali LLC
Telephone (503) 329-3598
Fax (503) 765-5377

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1

FOR THE COUNTY OF CLACKAMAS

Case No. CR1400775

Case No. CR1201793

DEFENDANTS REPLY IN SUPPORT OF

JASON JAY JAYNES,

DEFENDANTS REPLY IN SUPPORT OF

DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS

Defense counsels opening memorandum (hereinafter the Memorandum) sets forth

necessary to establish a constitutional violation.

In its Memorandum in Opposition (hereinafter the Opposition), the State argues

involuntary confession against him, or those applicable to the allegedly

coerced testimony of a prosecution witness;

politely, respectfully, and without pressureso much so that any lingering

effects from the Canby detectives earlier conduct completely disappeared.

DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS

framework governing this motion.

DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS

The States Response Largely Ignores the Applicable Legal Standard.

witnesss testimony is the product of governmental coercion.1

The State Focuses on the Wrong Legal Rules.

from those discussed at length by the State.

DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS

testimony the defendant will be able to present at trial.3

The States Sole Effort to Distinguish the Governing Case Law Is

830 F2d 150 (11th Cir 1987).

DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS

Heller, 830 F2d at 154 n 6.

See Mem at 54.

Washington v. Texas, 388 US 14, 19 (1967).

DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS

presentation of contradictory evidence.13

DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS

The Factual Picture Is Now Even Worse Than It Initially Appeared.

Heres the thing. Hes in custody, he has not

DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS

these too were lies.17

finished with Nick he was under the following impressions:

That he risked becoming wrapped up in thisthat is, entangled as not a

The Supposedly Good Portion of the Nick Smith Interrogation Was

aggressive,19 but holds up the subsequent interrogations by Detectives Sudaisar, Edwards

See Opp at 19.

Id. at 43-44, 48.

DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS

As of June 6, 2011, Detective Sudaisar and Others Were Already

coordinated investigation of Mr. Jayness May 28 whereabouts.

had not left during his shift.

See Sali Aff, Ex 1 at 1, 22.

This June 6 interrogation of Mr. Jaynes is memorialized in a recording. With respect to

DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS

ended. During that call Ferguson makes the following statements:

And so, thats what he told us, but hes beginningwere

Right, okay. All right.

And sobutso I mean, its interesting that he said the same

DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS

During the Good Part of the Investigation, the Detectives Do

arrived at PPB, where Detective Miller began an unrecorded pre-polygraph interview

See Sali Aff, Ex 1 at 102.

See id. at 41-74.

Id. at 76, 103.

DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS

followed by the highly questionable polygraph examination described in the Memorandum

The Governing Law Did Not Permit the Detectives to Do What

seven the next?