Defense rights trump privacy rights in rape case, appeals court rules

By Aimee Green | The Oregonian | October 12, 2016

The Oregon Court of Appeals ruled Wednesday that the right of a man convicted of rape to defend himself outweighs the privacy right of his accuser to keep the contents of her computer hard drive secret.

The decision could have wide implications, paving the way for defendants charged with a variety of crimes to gain access to emails, Google searches, texts and other information contained on an alleged victim's computer or cellphone.

A higher court in Oregon has never before made such a finding, said Portland defense attorney Stephen Houze, who represented the man in the rape case. It puts computer and cellphone evidence on par with other types of evidence now accessible to defendants, such as photographs or letters, he said.

The Appeals Court ruled that a 25-year-old woman who reported that she was beaten and raped in 2011 by a 37-year-old Bend doctor must turn over her computer hard drive to a forensic expert to comb through for information that could help exonerate the doctor.

A Deschutes County Circuit judge will privately review the information, then decide whether any evidence found on the hard drive should be given to the defense.

If significant evidence is found, the judge could grant defendant Thomas Harry Bray a new trial, Houze said.

Bray was convicted in 2012 after an eight-day trial. The woman testified that her first date via with the doctor went horribly wrong moments after she stepped into Bray's downtown condo for a glass of wine. She told a jury that Bray slapped, raped, sodomized and strangled her until she passed out. She said she thought she was going to die, so she took strands of hair that Bray had pulled from her head and scattered them around the condo in hopes that police investigating her disappearance would know she was there.

Bray is now serving a 25-year prison sentence in a Umatilla prison.

The woman's fight to keep Bray from seeing her Google search records, emails and other electronic information landed her in the national spotlight as The Oregonian/OregonLive featured her story and she later appeared on NBC's "Today" show. Victims' rights advocates applauded her for her courage.

Houze, the attorney who represented Bray during trial, had sought access to the woman's Google search records -- the terms she had queried and the websites she had visited -- in an effort to question her motives.

Houze contended that the woman searched the internet to determine whether Bray was really a doctor "and therefore wealthy enough to falsely sue for rape," according to the Appeals Court summary of the case.

The woman had filed a $2 million civil suit against Bray, but dropped it after he was convicted. She said she filed the lawsuit to hold Bray accountable if he had been acquitted.

The prosecution argued that allowing a computer search would violate the woman's constitutional privacy rights as an unreasonable search and seizure.

Deschutes County Circuit Judge Stephen Tiktin agreed that the woman's hard drive shouldn't be searched. But the Court of Appeals overturned that decision.

It would have ruled differently if Bray "had sought unlimited access to the contents" of the woman's computer, the court said, but Bray's subpoena was narrow and sought a screening by a judge.

The Appeals Court likened the Bend rape case to that of someone charged with home burglary.

"He knows that the interior of the victim's home is protected by video surveillance cameras," the Appeals Court wrote. "To prove that another person, not the defendant, committed the burglary, the defendant subpoenas the videotape" under the condition that a technician screens it for information and a judge determines if segments should be given to the defense.

The Appeals Court wrote that prosecutors would oppose the review of the video, arguing that it violates the victim's privacy rights to the inside of their home. But such an argument is "untenable," the court wrote.

The Deschutes County District Attorney's Office couldn't be reached for comment for this story Wednesday.

In the same ruling, the Appeals Court affirmed the lower court's decision not to throw out the criminal charges against Bray based on the argument that the district attorney's office had committed misconduct.

Judges Stephen Tiktin and A. Michael Adler initially had ordered the District Attorney's Office to get the woman's search history from Google. But the prosecution strongly disagreed based on the woman's privacy interests and defied that order with delays and refusals to act for months, according to the Appeals Court summary.

The Appeals Court said no error occurred because the lower court ultimately decided that it didn't have the legal authority to order the prosecution to seek the Google records.

The Appeals Court, however, issued a scathing rebuke, to the prosecution.

"We find the state's conduct at trial to be seriously disturbing," wrote Appeals Court Senior Judge David Schuman. "Its 'lack of good faith' with respect to obtaining the Google information was significantly worse than foot-dragging, delay and resistance. It was repeated, intentional and conceded defiance of a court order. Such defiance is nothing short of an attack on the judicial system itself."

The ruling was made by a three-judge panel of the Appeals Court: Joel DeVore, Chris Garrett and David Schuman.