Friday, April 13, 2012

Family of Gresham woman in vegetative state sues Clackamas County probation officials for failing to keep intoxicated driver off streets

Published: Friday, April 13, 2012, 5:08 PM     Updated: Friday, April 13, 2012, 5:10 PM
Jack Whiteaker
Months before Jack Dean Whiteaker smoked meth, got behind the wheel of his Jeep and veered into a car driven by a pregnant woman, his probation officer knew he was out of control.

He hadn't been showing up to scheduled office visits. He repeatedly brushed off drug treatment. He lied about his employment. He gave a fake home address. He failed to pay more than $1,400 in court-ordered fees.

Friday, the parents of Cayla Wilson -- the pregnant woman he sent into a vegetative state -- filed a $21 million lawsuit against Clackamas County Community Corrections, which was responsible for supervising Whiteaker while he was was serving 18 months of probation for a prior drug conviction. The suit faults Clackamas County probation officials for not swiftly seeking to revoke Whiteaker's probation when it was clear for months that he'd been violating court orders.

Wilson, who was five months pregnant at the time of the April 15, 2010 crash,suffered a broken skull and jaw, extensive brain damage and many complications. The 21-year-old eats through a feeding tube and remains in a vegetative state in a rehabilitation home today, two years later. Her daughter, JaiKyla, was born three months premature by emergency Caesarean section. She weighed 2 pounds and 3 ounces, suffered bleeding near her brain, a brain injury and underwent at least eight surgeries.

A jury found Whiteaker guilty of intoxicated driving, assault and reckless driving. Last month, Whiteaker was sentenced to 11 years in prison.

Attorneys for the family argue that 54-year-old Whiteaker, who had a criminal history spanning more than 35 years, should have been sent to jail or prison for probation violations before he plowed nearly head-on into Wilson's Buick on Gresham's Southeast Jenne Road.

caylawilsonjpg-4abf979021cb0762_medium.jpgView full sizeCayla Wilson

“There’s no reason to have probation if people who are on probation just flaunt the rules -- disregard them and nothing ever happens," said Portland attorney Mark McDougal, whose firm Kafoury & McDougal is representing Wilson's family.

Clackamas County officials did not return calls seeking comment. Officials from the State of Oregon and Multnomah County's Department of Community Justice -- which also are listed as defendants in the suit -- declined to comment because of the pending litigation.

The suit highlights pervasive problems with overloaded probation and parole officers, who struggle to supervise thousands of offenders as budget cuts chip away at their numbers and abilities to do their jobs.

Whiteaker was convicted of heroin possession in June 2009. The following month, he provided officials with a home address at Southeast 53rd and Powell Boulevard -- but it would be nearly eight months before a Multnomah County probation officer went to the address and discovered that it was an office-supply store that rented out mailboxes.

Whiteaker's Clackamas County probation officer, Dawn Penberthy, wrote in a report that as early as November 2009 "I began to get highly suspicious that he was being dishonest with me." She asked him for proof of employment, and at a Jan. 6, 2010 visit to her office he was unable to provide any to her. Whiteaker didn't show for a Jan. 29 visit, or for any visits after that.

He also skipped all four drug-treatment sessions he was scheduled to attend, apparently in 2009, according to Penberthy's report. In January 2010 he was directed to attend a new drug-treatment center, but he failed to show up there, either.

The suit claims that Whiteaker's probation officer had good reason as early as January 2010 to tell the court he was ignoring court orders. His probation officer filled out the appropriate paperwork on April 1, 2010, two weeks before the crash.

"It's a one-pager -- it doesn't take that long to fill out," McDougal said.But by then, probation officials didn't know where he was.

The suit seeks $10 million for Cayla Wilson's pain and suffering, $2 million for a lifetime of lost earnings, $1.19 million for her past medical costs and $7 million for her future care. The suit also seeks $500,000 for JaiKyla Wilson's pain and suffering, $80,000 for her past medical expenses and $350,000 for her future care.

Lawsuits faulting probation departments for failing to revoke an offender’s probation are rare. State law protects police agencies from being sued for failing to act — for example, failing to arrest a suspect who then went on to victimize others. But the Oregon Court of Appeals has ruled that probation departments aren’t immune to such suits.

In 1991, the Court of Appeals ruled that the estates of two brothers, ages 6 and 8, could sue probation officials after Donna Shonkwiler, who was driving with heroin and cocaine in her system, struck them as they walked along the shoulder of a Beaverton road.

Shonkwiler previously had been convicted in Multnomah County of drug possession. While on probation, her probation officer failed to report to a judge that Shonkwiler had admitted she was still using heroin. The probation officer also knew that Shonkwiler regularly drove in the days before she struck the group of children, killing brothers Carlos Rojano Perez and Marco Zavalas Rojano.

Among the highest profile suits since: The family of the late Melissa Bittler sued Multnomah County for failing to keep Ladon Stephens off the streets. Bittler, 14, was on her way to school in 2001 when Ladon Stephens pulled her into a neighbor’s back yard, sexually assaulted her and choked her to death. Stephens also raped three girls and his girlfriend’s 24-year-old cousin while on post-prison supervision, failing polygraph tests and being passed between half a dozen post-prison supervision officers.

Multnomah County settled the suit by paying $150,000 to Bittler’s family.

Despite that history, McDougal said that state-mandated tort claim limits of $200,000 have discouraged such lawsuits given the large costs of suing. But court decisions and legislative action in recent years have eliminated those limits in cases where the catastrophic damages suffered by victims, such as Cayla Wilson, soar, he said.
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