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Twists in trial lead to verdicts of vindication

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Posted: Wednesday, February 27, 2008 12:00 am

TILLAMOOK - In what the judge called the strangest drunken driving case he had ever been associated with, a former Wheeler woman last Friday was found not guilty of the three counts against her in Tillamook County Circuit Court.

Carla Hart, 45, was acquitted of DUII, reckless driving and initiating a false report after her trial wove its way through a jury panel, a waiver of a jury trial and a bench trial in the course of four days.

"I feel like for the first time in 13 months there was some justice in the legal system," Hart said after the verdicts came down.

The case was never simple. Police found Hart in her car early on the morning of Jan. 21, 2007, after she called 9-1-1. She was naked from the waist down and was lying in a pool of her own vomit, urine and feces.

"I've been here for hours and hours," she could be heard hysterically telling the 9-1-1 operator on a recording of the call, which was played during the trial. "I've been in the car, and it's so cold and I'm so thirsty."

See TRIAL, Page A15

She was jailed on charges of DUII and reckless driving after being treated for acute ethanol intoxication at Tillamook County Hospital.

But about a week later, Hart told police she thought she had been drugged and raped that night and had been dumped and left for dead where they found her.

She had not previously told police of the alleged sexual assault.

"In this case, the defendant cried wolf," Deputy District Attorney JoAnn Miller told the Tillamook County jury of four women and two men during her opening statement Feb. 26.

Hart, who worked at Manzanita Grocery and Deli at the time, said during the trial that she went to the San Dune Pub in Manzanita Jan. 20 after work. A member of the Portland blues band playing at the bar that night had stopped by the deli earlier in the day to invite workers to attend. She said she drank only three glasses of red wine at the bar over about three hours. But her memories of the night end sometime between midnight and 12:30 a.m., when the band was packing up and leaving the bar.

Several others testified at the trial that, to them, she had appeared intoxicated that night.

"It's like the lights went out," Hart said of her memory lapse.

She woke up, she said, around 5:30 a.m., finding herself in her car but unsure where she was. "I'm yelling, "help, help," she said. "I found my cell phone in my hand - I do remember calling 9-1-1. I didn't know where I was."

She told the 9-1-1 operator first that she was in Rockaway Beach, then that she must be in Manzanita. Police found her in a marshy ditch off Sixth Street, near the river, in Nehalem.

While she cannot remember anything that happened, she said she thinks she was drugged and raped by the same man who invited her to the bar. She said she remembered him trying to get her to return to his hotel room with him shortly before she blacked out, and pointed out that he lied to police. The man first told police he did not see Hart after leaving the bar, but later said she had returned to his hotel room with he and his cousin, who is also in the band, but left a short time later.

The man said he told a different story earlier because, as he put it at the trial, "I didn't want my name associated with rumors."

Miller asked him is he was afraid he would be "wrongly accused of rape."

"Yes," he said.

Hart said she did not report her rape suspicions for a week because she was extremely disoriented immediately when she was found and was hoping she had not been raped.

"I was clinging to the hope that I had just been dumped somewhere and had not been violated in that way," she said from the witness stand, grabbing a handful of tissues.

Hart described her experiences to Jeanette Henley, a friend, who testified that she told Hart that it sounded like "she may have been slipped a mickey." Henley testified that she based her knowledge on things she had heard or read in the media.

It was only then, Hart said, that she began to suspect what may have happened to her.

She soon began experiencing symptoms that convinced her that she had been raped. She developed vaginosis, a bacterial infection. She also had a mark on her nose, a loose tooth, a sore jaw and a bruised elbow.

Dr. Harry Rinehart of Rinehart Clinic in Wheeler testified that the infection could have been transferred from either sexual contact or extended contact with fecal material.

Hart said that she still did not report her rape because she was afraid to speak to police.

"They were treating me like a criminal," she testified, her voice shaking.

She already had a lawyer for her pending DUII and reckless driving case and attempted to reach her for several days to set up a meeting with police, Hart said. But her lawyer was unavailable to her, canceling their meetings and not returning phone calls.

Hart displayed tearful reactions to testimony throughout the trial, causing Miller at one point to protest to the judge that the "emotional outbursts" were distracting the jury.

Hart's court-appointed attorney, Arlo Varri of Portland, countered, "Her belief is that she was raped. I think she's holding up well, considering what she's been through."

Visiting Judge Rudy Murgo observed that people crying in a courtroom is "not new."

Hart, declining the judge's offer for a brief recess, said she had waiting "so long" for this trial, and that she was "trying my hardest to keep my emotions inside."

Miller told the jury that Hart simply invented the rape story to avoid prosecution on the charges against her.

"Who knows why a person might become so enmeshed in a story after the fact," Miller said during her closing arguments. "Maybe she wants to write a book. Maybe she just wants her 15 minutes of fame."

The case was marked by its unusual nature. Murgo interrupted the district attorney's closing arguments Thursday to take questions submitted by the jury.

"That's incredibly unusual," said Douglas Beloof, a law professor at the Lewis and Clark School of law.

But, said criminal defense attorney Laura Graser, jurors are often allowed to ask questions during the course of a trial.

"It's a little bit more new-fangled, maybe within the last five to 10 years that jurors ask questions during the course of a trial," she said. "That doesn't strike me as being terribly surprising."

Jury members asked, in written questions, whether they would be able to see exhibits while deliberating and whether there would be more evidence.

But what likely alarmed the deputy district attorney was one juror's question. He suggested the police had "tunnel vision" in their investigation of the case and asked why they did not investigate the reason Hart was found naked.

Miller asked the judge to declare a mistrial in the case on Friday morning, giving a host of reasons the questions submitted by the jury jeopardized the case. She said jurors were not given necessary instruction prior to submitting the questions, that it put the state at a disadvantage in not being able to respond to the questions and that she was concerned the questions showed that the jurors had engaged in deliberation prior to receiving instructions from the judge.

But Murgo denied the motion after asking Hart whether she wished to proceed with the case.

"She's the one I'm the most concerned about," he said.

The case continued to fluster those involved and observers, taking another strange twist Friday afternoon.

About three hours into its deliberations, the jury sent the judge a note asking if it could determine guilt or innocence on one or more charge and deadlock on the other charge or charges. Murgo brought jury members back into the courtroom to tell them that they could do that and to ask them to continue deliberations.

Less than one hour later, Hart and Varri returned to the courtroom. Hart had decided to waive her right to a jury trial and accept a bench trial, in which the judge would decide the case, instead.

The request flummoxed the judge and lawyers on either side of the case.

Tillamook County District Attorney William Porter told Murgo that neither he nor the state Attorney General's Office were able to find a precedent.

"Maybe the key to this is the waiver of trial by jury," Porter suggested. "In essence, she's already had that trial."

But Varri told the judge he thought his client should be granted her request.

"The right to a jury trial is a protection guaranteed to the individual," he said. "I don't see why she wouldn't be able to give that up."

Murgo decided to accept whatever verdict or verdicts the jury had already reached, declare a mistrial on the other counts and decide those himself.

"Do you want me to go ahead and stop them where they're at?" Murgo asked Hart.

Quietly, she said yes.

Beloof said while the decision was uncommon, it is generally within a trial judge's discretion to allow a defendant to waive a jury trial.

"You typically have to make that choice before the jury's impaneled," he said. "The court, in its discretion, can dismiss a jury at any time that the defendant asks for it. It happens occasionally."

The four women and two men on the Tillamook County jury filed back in, handing in their verdict forms.

They found Hart not guilty on the charge of initiating a false report. They had not reached verdicts on the charges of DUII and reckless driving.

The judge thanked the jury for its service and dismissed the jurors, asking Hart once again if she wanted to proceed.

"I want it over," she said, her voice shaking.

After a short recess, Murgo returned to the courtroom.

"As a government we chose...to put all the burdens on the government, and sometimes when you're the government, that just doesn't seem fair," he said. "And sometimes it seems like a person who committed an offense walks free, but it's better that the government lose than to convict someone not proven guilty beyond a reasonable doubt."

Murgo went on to say that while he wondered if Hart was indeed guilty, he simply did not think the state had proven its case beyond a reasonable doubt.

"You don't know what happened and, in my opinion, you will probably never know," Murgo said. "But the government's evidence doesn't rise to the level of beyond a reasonable doubt. I'm finding you not guilty."

Varri was visibly exultant, with his client crying and expressing her relief.

Porter, on the other hand, did not appear pleased.

"The state is very disappointed with the result," he said after the verdict came down. "But we appreciate the work of the jury and know that they made a tough decision."

Hart said she was happy to have been acquitted of the charges against her, but feared for the women whom her attacker may yet assault. She said she planned to write a book about her experiences "to help others" who have been sexually assaulted.

She was jailed on charges of DUII and reckless driving after being treated for acute ethanol intoxication at Tillamook County Hospital.

But about a week later, Hart told police she thought she had been drugged and raped that night and had been dumped and left for dead where they found her.

She had not previously told police of the alleged sexual assault.

"In this case, the defendant cried wolf," Deputy District Attorney JoAnn Miller told the Tillamook County jury of four women and two men during her opening statement Feb. 26.

Hart, who worked at Manzanita Grocery and Deli at the time, said during the trial that she went to the San Dune Pub in Manzanita Jan. 20 after work. A member of the Portland blues band playing at the bar that night had stopped by the deli earlier in the day to invite workers to attend. She said she drank only three glasses of red wine at the bar over about three hours.

A memory lapse

But her memories of the night end sometime between midnight and 12:30 a.m., when the band was packing up and leaving the bar.

Several people testified at the trial that, to them, she had appeared intoxicated that night.

"It's like the lights went out," Hart said of her memory lapse.

She woke up, she said, around 5:30 a.m., finding herself in her car but unsure where she was. "I'm yelling, "help, help," she said. "I found my cell phone in my hand - I do remember calling 9-1-1. I didn't know where I was."

She told the 9-1-1 operator first that she was in Rockaway Beach, then that she must be in Manzanita. Police found her in a marshy ditch off Sixth Street, near the river, in Nehalem.

While she cannot remember anything that happened, she said she thinks she was drugged and raped by the same man who invited her to the bar. She said she remembered him trying to get her to return to his hotel room with him shortly before she blacked out, and pointed out that he lied to police. The man first told police he did not see Hart after leaving the bar, but later said she had returned to his hotel room with he and his cousin, who is also in the band, but left a short time later.

The man said he told a different story earlier because, as he put it at the trial, "I didn't want my name associated with rumors."

Miller asked him if he was afraid he would be "wrongly accused of rape."

"Yes," he said.

Hart said she did not report her rape suspicions for a week because she was extremely disoriented when she was found and was hoping she had not been raped.

"I was clinging to the hope that I had just been dumped somewhere and had not been violated in that way," she said from the witness stand, grabbing a handful of tissues.

Hart described her experiences to Jeanette Henley, a friend, who testified that she told Hart that it sounded like "she may have been slipped a mickey." Henley testified that she based her knowledge on things she had heard or read in the media.

Suspicions of assault

It was only then, Hart said, that she began to suspect what may have happened to her.

She soon began experiencing symptoms that convinced her that she had been raped. She developed vaginosis, a bacterial infection. She also had a mark on her nose, a loose tooth, a sore jaw and a bruised elbow.

Dr. Harry Rinehart of Rinehart Clinic in Wheeler testified that the infection could have been transferred from either sexual contact or extended contact with fecal material.

Hart said that she still did not report her rape because she was afraid to speak to police.

"They were treating me like a criminal," she testified, her voice shaking.

She already had a lawyer for her pending DUII and reckless driving case and attempted to reach her for several days to set up a meeting with police, Hart said. But her lawyer was unavailable to her, canceling their meetings and not returning phone calls.

Emotional reactions

Hart displayed tearful reactions to testimony throughout the trial, causing Miller at one point to protest to the judge that the "emotional outbursts" were distracting the jury.

Hart's court-appointed attorney, Arlo Varri of Portland, countered, "Her belief is that she was raped. I think she's holding up well, considering what she's been through."

Visiting Judge Rudy Murgo observed that people crying in a courtroom is "not new."

Hart, declining the judge's offer for a brief recess, said she had waiting "so long" for this trial, and that she was "trying my hardest to keep my emotions inside."

Miller told the jury that Hart simply invented the rape story to avoid prosecution on the charges against her.

"Who knows why a person might become so enmeshed in a story after the fact," Miller said during her closing arguments. "Maybe she wants to write a book. Maybe she just wants her 15 minutes of fame."

An unusual development

The case was marked by its unusual nature. Murgo interrupted the district attorney's closing arguments Thursday to take questions submitted by the jury.

"That's incredibly unusual," said Douglas Beloof, a law professor at the Lewis and Clark School of law.

But, said Portland criminal defense attorney Laura Graser, who was not associated with the case, jurors are often allowed to ask questions during the course of a trial.

"It's a little bit more new-fangled, maybe within the last five to 10 years that jurors ask questions during the course of a trial," she said. "That doesn't strike me as being terribly surprising."

Jury members asked, in written questions, whether they would be able to see exhibits while deliberating and whether there would be more evidence.

But what likely alarmed the deputy district attorney was one juror's question. He suggested the police had "tunnel vision" in their investigation of the case and asked why they did not investigate the reason Hart was found naked.

Request for a mistrial

Miller asked the judge to declare a mistrial in the case on Friday morning, giving a host of reasons the questions submitted by the jury jeopardized the case. She said jurors were not given necessary instruction prior to submitting the questions, that it put the state at a disadvantage in not being able to respond to the questions and that she was concerned the questions showed that the jurors had engaged in deliberation prior to receiving instructions from the judge.

But Murgo denied the motion after asking Hart whether she wished to proceed with the case.

"She's the one I'm the most concerned about," he said.

The case continued to perplex those involved and observers, taking another strange twist Friday afternoon.

About three hours into its deliberations, the jury sent the judge a note asking if it could determine guilt or innocence on one or more charge and deadlock on the other charge or charges. Murgo brought jury members back into the courtroom to tell them that they could do that and to ask them to continue deliberations.

Less than one hour later, Hart and Varri returned to the courtroom. Hart had decided to waive her right to a jury trial and accept a bench trial, in which the judge would decide the case, instead.

The request flummoxed the judge and lawyers on either side of the case.

Tillamook County District Attorney William Porter told Murgo that neither he nor the state Attorney General's Office were able to find a precedent.

"Maybe the key to this is the waiver of trial by jury," Porter suggested. "In essence, she's already had that trial."

But Varri told the judge he thought his client should be granted her request.

"The right to a jury trial is a protection guaranteed to the individual," he said. "I don't see why she wouldn't be able to give that up."

Murgo decided to accept whatever verdict or verdicts the jury had already reached, declare a mistrial on the other counts and decide those himself.

"Do you want me to go ahead and stop them where they're at?" Murgo asked Hart.

Quietly, she said yes.

Beloof said while the decision was uncommon, it is generally within a trial judge's discretion to allow a defendant to waive a jury trial.

"You typically have to make that choice before the jury's impaneled," he said. "The court, in its discretion, can dismiss a jury at any time that the defendant asks for it. It happens occasionally."

The four women and two men on the Tillamook County jury filed back in, handing in their verdict forms.

Jury decides on one count

They found Hart not guilty on the charge of initiating a false report. They had not reached verdicts on the charges of DUII and reckless driving.

The judge thanked the jury for its service and dismissed the jurors, asking Hart once again if she wanted to proceed.

"I want it over," she said, her voice shaking.

After a short recess, Murgo returned to the courtroom.

"As a government we chose...to put all the burdens on the government, and sometimes when you're the government, that just doesn't seem fair," he said. "And sometimes it seems like a person who committed an offense walks free, but it's better that the government lose than to convict someone not proven guilty beyond a reasonable doubt."

Judge decides the rest

Murgo went on to say that while he wondered if Hart was indeed guilty, he simply did not think the state had proven its case beyond a reasonable doubt.

"You don't know what happened and, in my opinion, you will probably never know," Murgo said. "But the government's evidence doesn't rise to the level of beyond a reasonable doubt. I'm finding you not guilty."

Varri was visibly exultant, with his client crying and expressing her relief.

Porter, on the other hand, did not appear pleased.

"The state is very disappointed with the result," he said after the verdict came down. "But we appreciate the work of the jury and know that they made a tough decision."

Hart said she was happy to have been acquitted of the charges against her, but feared for the women whom her attacker may yet assault. She said she planned to write a book about her experiences "to help others" who have been sexually assaulted.

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