11/26/2018 3:38 PM

18CR59251

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05 IN THE CIRCUIT COURT OF THE STATE OF OREGON

06 FOR THE COUNTY OF MULTNOMAH\
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STATE OF OREGON, 18 CR 59251
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Plaintiff, DEFENDANT’S POST-HEARING
MOTION AND REQUEST FOR
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v. EMERGENCY ORDER
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NANCY LEE CRAMPTON BROPHY,
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Defendant.
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14 The Defendant, Nancy Lee Crampton Brophy, through counsel Kathleen Dunn,

15 moves this Court for an Emergency Order striking from the record of the hearing held on

16 November 19, 2018 all unsupported accusations of “ongoing criminal activity” and

17 compelling discovery to the defense of any evidence, including audio and video of any

18 recorded jail visits or phone calls, that formed the basis of any such allegation, along with

19 a copy of the Multnomah District Attorney’s filter team protocols. She offers the following

20 legal argument in support of this motion.

21 Facts and Procedural Posture

22 As this Court is well aware, Ms. Crampton-Brophy is accused of having killed her

23 husband. From the moment of Ms. Crampton-Brophy’s arrest, this case has garnered

24 widespread media coverage, appearing in outlets from People to The Washington

25 Post to The Times of Israel and the UK’s Daily Mail. In light of intense media interest, Ms.

26 Crampton-Brophy moved to seal the jail visitor logs in order to preserve the attorney-client

1 State v. Nancy Lee Crampton Brophy   18 CR 59251   Metropolitan Public Defender

Defendant Crampton-Brophy’s Post-Hearing Motion and 630 SW Fifth Avenue, Suite 500
Request for Emergency Order Portland, OR 97204
… p. 503-225-9100 • f. 503-295-0316
01 privilege, the right to effective assistance of counsel, the right to a fair trial, her work
02 product privilege, and her right to equal protection of the law.
03 On November 19, 2018, at a hearing on Ms. Brophy’s Motion to Seal Visitor Logs,
04 the prosecutor argued to this Court that the state objected to sealing of the logs because
05 Ms. Brophy was using legal visits to engage in ongoing criminal behavior behind bars. A
06 similar argument was raised by the same prosecutor in a parallel civil proceeding. (See In
07 the Matter of the Estate of Daniel Craig Brophy, 18PB07435.)
08 After the criminal case hearing, The Oregonian described the state’s argument as
09 follows: “the prosecutor said[] new evidence discovered during the continuing murder
10 investigation suggests some of Crampton Brophy's visitors might be complicit in other
11 crimes she may be committing while in custody” and that “Overstreet didn't provide
12 additional details in court and declined to comment further afterward.” Shane Dixon
13 Kavanaugh, Romance writer charged with killing husband accused of criminal behavior
14 behind bars, The Oregonian (19 Nov. 2018). The state offered no evidence for this claim,
15 concluding: “The state believes that Ms. Crampton-Brophy is possibly being visited by
16 individuals who are assisting her in that ongoing criminal behavior.” KGW News video of
17 hearing, available at https://www.youtube.com/watch?v=i9LiF4QxZQQ ).
18 Indeed, the leading headline after the November 19th hearing was the allegation
19 that Ms. Crampton-Brophy was engaged in ongoing criminal conduct, from jail, with the
20 help of a visitor. See, e.g., DA: Novelist continues criminal behavior in custody, KOIN-TV
21 (19 Nov. 2018) available at https://www.koin.com/news/crime/hearing-to-begin-for-
22 romance.../1606686529; Romance author, 68, accused of killing husband is accused of
23 committing further crimes while behind bards after she applies to have the jail visitor log
24 shielded from the DA’s Office (20 Nov. 2018) available at
25 https://www.dailymail.co.uk/news/article-6410359/Romance-author-68-accused-killing-
26 husband-said-conducting-criminal-behavior-bars.html .

2 State v. Nancy Lee Crampton Brophy   18 CR 59251   Metropolitan Public Defender

Defendant Crampton-Brophy’s Post-Hearing Motion and 630 SW Fifth Avenue, Suite 500
Request for Emergency Order Portland, OR 97204
… p. 503-225-9100 • f. 503-295-0316
01 Legal Argument
02 The prosecutor offered no evidence of the claim that Ms. Crampton-Brophy was
03 engaged in criminal activity in the context of her visits. Equally important, the prosecutor
04 insinuated on the record – again, without evidence – that his claim may possibly be in
05 relation to legal visits. The prosecutor’s qualified assertion that Ms. Crampton-Brophy “is
06 possibly being visited” by people assisting in ongoing crime highlights the paucity of the
07 evidence underlying the state’s allegation, thereby aggravating the prosecutor’s choice to
08 recklessly create a media firestorm and risk Ms. Crampton-Brophy’s rights.
09 Immediate Court intervention is required.
10 The prosecutor made a highly inflammatory claim in a public hearing, wholly
11 unsupported by any evidence, that undoubtedly impacts Ms. Crampton-Brophy’s ability to
12 have a fair trial before an unbiased jury and may possibly interfere with her right to counsel,
13 her right to present a defense, her right to due process, and her right to attorney-client
14 privilege. U.S. Const. amends. VI & XIV, Or. Const. Art. 1, § 11, ORS § 40.225. Therefore,
15 Ms. Crampton-Brophy asks the Court:
16 1. To strike the unsupported allegations1 of ongoing criminal activity from the
17 record of the hearing on Ms. Crampton-Brophy’s motion to seal jail logs;
18 2. To compel discovery and production of any evidence, including audio and
19 video of any recorded jail visits or phone calls, that formed the basis of any such
20 allegation;
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ABA Criminal Justice Standards for the Prosecution Function, Standard 3-1.4, The
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Prosecutor’s Heightened Duty of Candor, provides in relevant part, “The prosecutor should
23 not make a statement of fact … that the prosecutor does not reasonably believe to be
true, to a court, lawyer, witness, or third party” and “a prosecutor should correct a
24 prosecutor’s representation of material fact … that the prosecutor … later learns was
false … to avoid misleading a judge or factfinder.”
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3 State v. Nancy Lee Crampton Brophy   18 CR 59251   Metropolitan Public Defender

Defendant Crampton-Brophy’s Post-Hearing Motion and 630 SW Fifth Avenue, Suite 500
Request for Emergency Order Portland, OR 97204
… p. 503-225-9100 • f. 503-295-0316
01 3. If any of said visits involve potentially privileged communication, to compel
02 the production of the state’s filter or taint team protocol to allow the defense team
03 to review the protocol and raise objections; and
04 4. Lastly, and if any communications monitored by the state involve privileged
05 communications, the defense seeks an emergency order directing the prosecutor’s office
06 to cease and desist from further monitoring or review of recorded communications.
07 Depending on the nature of the visits monitored by the state, the defense seeks
08 leave to provide more specific briefing to adequately address relevant legal issues;
09 however, at this juncture, the state has provided but a mere bald face assertion wholly
10 unsupported by evidence, and an assertion that has made headlines from Portland to
11 London.
12 SO MOVED this 26th day of November, 2018.
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Respectfully submitted,
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Kathleen Dunn
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16 Kathleen Dunn   Attorney for Defendant

Nancy Lee Crampton Brophy
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t. 503.225.9100   f. 503.295.0316
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4 State v. Nancy Lee Crampton Brophy   18 CR 59251   Metropolitan Public Defender

Defendant Crampton-Brophy’s Post-Hearing Motion and 630 SW Fifth Avenue, Suite 500
Request for Emergency Order Portland, OR 97204
… p. 503-225-9100 • f. 503-295-0316
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CERTIFICATE OF SERVICE
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I hereby certify that on November 26, 2018, I served a copy of the foregoing:
03 Motion to Strike … by e-serving to said attorney at his/her last known email address
04 listed in the Oregon State Bar Directory:
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06
Shawn Overstreet •
shawn.overstreet@mcda.us
07 Multnomah District Attorney’s Office
600 Multnomah County Courthouse
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1021 SW 4th Ave
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Portland OR 97204

10 Christine Mascal •
cmascal@mascal-law.com
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Mascal Law Office, Llc
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2905 NE Broadway St
Portland OR 97232
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/s/Kathleen Dunn

15 Kathleen Dunn
Of Attorneys for Defendant
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5 State v. Nancy Lee Crampton Brophy   18 CR 59251   Metropolitan Public Defender

Defendant Crampton-Brophy’s Post-Hearing Motion and 630 SW Fifth Avenue, Suite 500
Request for Emergency Order Portland, OR 97204
… p. 503-225-9100 • f. 503-295-0316