State Supreme Court vacates rape conviction of former Bend doctor

By Maxine Bernstein | Oregon Live | July 6, 2018

The Oregon Supreme Court has vacated the conviction of a former Bend doctor who was sentenced to 25 years for raping a woman he met on a dating website.

The high court found the trial judge erred in failing to require the alleged victim comply with a subpoena from the doctor to produce her computer for a forensic examination at trial.

The state Supreme Court ruling, one of the first written by the court's new chief justice Martha Walters, sent the case back to the Deschutes County Circuit judge to order a forensic exam be done on the woman's computer, with measures to protect the woman's privacy interests regarding its digital contents.

Once the exam is completed and the results shared with the defendant, Thomas Harry Bray, the court should hold a hearing for Bray to argue whether the evidence culled from the computer would have bolstered his case at trial.

If the trial judge is convinced the material on the computer may have made a difference in the case, the trial judge must decide whether to order a new trial. If not, the judge should reinstate Bray's convictions, the Supreme Court ruled.

"I respect the decision of the Supreme Court and will work with the defense and the trial court to quickly comply with their order,'' said John Hummel, Deschutes County district attorney.

Attorney Kendra Matthews, who represented Bray, declined comment.

Bray was convicted in 2012 after an eight-day trial. Jennifer Bennett 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, 44, is now serving a 25-year prison sentence at Two Rivers Correctional Institution in Umatilla.

The state Supreme Court affirmed the Oregon Court of Appeals ruling, finding that the trial court judge was required to enforce Bray's subpoena for Bennett's computer since Bray demonstrated that the computer and its contents "had some potential use'' for her cross-examination during trial.

Bennett told police that, after her encounter with Bray, she used her computer to do an internet search to determine if what had happened counted as rape, according to the high court ruling. She also testified that she had made journal entries on her computer about Bray or the rape and that she had "flattened'' her computer to delete all digital information. She used an installation disk to wipe the computer free of saved data in March 2011, within weeks of the reported rape, according to court documents.

Bennett said she took that action because she was afraid the media would hack her computer. She told The Oregonian/OregonLive in 2012 that she didn't bring the computer to court "because I didn't think it was fair or correct.''

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

Bray's lawyer countered that the computer could still contain data that might contradict the woman's testimony about the timing of her efforts to "flatten'' the hard drive.

The high court found it is possible that Bennett's computer will contain evidence of her internet searches, and the defendant has a right to obtain that information.

"The trial court did not and could not find that that evidence had 'no potential use' at trial,'' Walters wrote in the opinion.

Yet the high court also found the trial court did not need to compel prosecutors to apply for a search warrant for Google to disclose Bennett's internet searches on her computer. Bray's lawyers had argued the failure to obtain a search warrant for the Google information violated his due process. Prosecutors had issued a subpoena to Google, which was rebuffed by the company.

The state Supreme Court determined that there were other alternative means to obtain evidence of the searches done on Bennett's computer.

Meg Garvin, executive director of the National Crime Victim Law Institute and a Lewis & Clark law professor who filed with others a friend of the court brief in support of Bennett, said she was extremely disturbed by the ruling.

"To say we are disappointed and nervous about the impact this will have on victims is an understatement,'' Garvin said.